Nominal Defendant v Smith

Nominal Defendant v Smith - [2015] NSWCA 339 - NSWCA 2015 case summary — Zoe

[3]

HEADNOTE [This headnote is not to be read as part of the judgment] The first respondent, Mr Jereme Smith, was injured when Mr Ryan Harris, the driver of a vehicle in which Mr Smith was travelling, lost control of his vehicle and collided with another, driven by Ms Callister. As a result of this collision both Mr Smith and Ms Callister sustained injuries. Both Mr Smith and Mr Harris claimed that the initial cause of the collision was an unidentified black car which had cut in front of their vehicle, causing Mr Harris to swerve and lose control. Accordingly, Mr Smith brought proceedings naming Mr Harris as the first defendant and the Nominal Defendant as second defendant, pursuant to s 34 of the Motor Accident Compensation Act 1999 (NSW). Both the Nominal Defendant and Ms Callister denied the existence of the black vehicle. Following a trial in the District Court, Mahony DCJ gave judgment in favour of Mr Smith. He accepted that there had been a black car which Ms Callister had not seen. He also found that Mr Harris had been negligent in his manner of driving and control of his motor vehicle. He therefore found that both defendants were liable for Mr Smith's injury and allocated responsibility for the accident as 60 per cent to the driver of the unidentified vehicle and 40 per cent to Mr Harris. He awarded Mr Smith damages of $425,366, apportioned in accordance with that allocation of responsibility. The Nominal Defendant appealed against the judgment asserting that the primary judge had erred in accepting Mr Smith's account of the circumstances of the accident. Mr Harris brought a cross-appeal against the Nominal Defendant asserting that the primary judge had erred in his apportionment of liability. Neither the Nominal Defendant nor Mr Harris sought any orders which would adversely affect Mr Smith. As the appeal turned entirely on the correctness of the primary judge's findings of fact, the Court of Appeal was constrained by the principles enunciated in Fox v Percy [2003] HCA 22; 214 CLR 118. Held, by majority, allowing the appeal and setting aside the judgment against the Nominal Defendant: That the primary judge erred in summarily dismissing the evidence of Ms Callister, as she was found to be a witness of credit and her evidence was neither inherently implausible nor otherwise unsatisfactory: Basten JA at [24], [39]-[42], [50], [53]; Leeming JA at [88]. Dunleavy v Peak [2009] NSWCA 72 referred to. That the primary judge failed to weigh the competing testimonial evidence of Mr Smith and Ms Callister on the balance of probabilities: Basten JA at [25]-[26]; Leeming JA at [77]-[78], [83], [89]. Nominal Defendant v Mokbel [2015] NSWCA 3 referred to. That the primary judge failed to assess the reliability of Mr Smith's testimonial evidence against the objective facts, motives and overall probabilities of the case: Basten JA at [47]-[49], [51]; Leeming JA at [77], [86]-[87], [89], [91]-[94]. Williams v The Minister Aboriginal Land Rights Act 1983 [2000] NSWCA 255 referred to. That the primary judge had used Mr Harris' statement to police for a purpose contrary to the ruling on which it had been admitted: Basten JA at [46]; Leeming JA at [85]. per Simpson JA (in dissent): the primary judge's finding of fact, that there had been a black car, was not subject to the frailties of the type in Fox v Percy and should not be disturbed: at [138]. The majority held that it could not be said that no finding against the Nominal Defendant was open on the evidence; but the fact finding process had miscarried. Accordingly, the outstanding issues were remitted to the District Court for determination.

[5]

Nature of appeal

The case at trial turned upon disputed questions of fact. The appeal turned entirely upon the correctness of the findings by the trial judge as to the facts. In such a case it is necessary to pay careful regard to both the function of the appellate court and the limitations on that function.
The right of appeal arises under s 127 of the District Court Act 1973 (NSW), the nature of the appeal being identified by s 75A of the Supreme Court Act 1970 (NSW). The appeal is described as an appeal "by way of rehearing". [2] What that means is identified in the following provisions which, excluding the power to take further evidence which was not raised in the present case, are: 75A Appeal … (6) The Court shall have the powers and duties of the court, body or other person from whom the appeal is brought, including powers and duties concerning: (a) amendment, (b) the drawing of inferences and the making of findings of fact, and (c) the assessment of damages and other money sums. … (10) The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires.
In considering the scope of an appeal so identified, it may be noted that s 75A does not apply to an appeal arising out of a jury trial. [3] Nor is the appeal limited to grounds identifying error of law. It is, therefore, not correct to consider whether a finding by a trial judge was "open" or "reasonably open" on the evidence. The power of this Court to intervene is not expressed in terms requiring identification of error, although it is not rehearing the case as if it were a retrial. The court is empowered to give a judgment "which ought to have been given" by the trial court. In this context, reference to "error" is often no more than the description given by the appellate court to its conclusion when it proposes to uphold the appeal. It signifies that the appellate court will not intervene unless persuaded that the trial judge was not correct, was wrong, or was in error.
This reflects the principles expressed in Warren v Coombes [4] in the joint reasons of Gibbs ACJ, Jacobs and Murphy JJ: "Again with the greatest respect, we can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process. The duty of the appellate court is to decide the case - the facts as well as the law - for itself."
Warren v Coombes was concerned with the drawing of inferences from primary facts, rather than a challenge to the findings as to the primary facts themselves. The latter situation gives rise to a separate range of issues, as explained in Fox v Percy. [5] Nevertheless, as Fox v Percy itself demonstrated, one starts with the propositions as to the basic powers and functions of the court set out above. [6] The joint reasons then noted cases subsequent to Warren v Coombes, including Abalos v Australian Postal Commission, [7] which were said to provide "simply a reminder of the limits under which appellate judges typically operate when compared with trial judges." [8] The joint reasons in Fox v Percy continued: [9] "The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute."
While accepting that weight must be given to findings based on assessments of the credibility of witnesses who have given oral testimony, and indeed to the general advantages held by a judge conducting a trial over those relying on a written transcript, the joint reasons nevertheless noted that there were circumstances in which a finding might be contrary to compelling inferences and continued: [10] "In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must 'not shrink from giving effect to' its own conclusion." [11]
There are two other factors to be borne in mind. The first is the observation of Griffith CJ in Dearman v Dearman [12] that an appellate court may be more willing to intervene in circumstances where the trial judge has made a finding of fact in favour of the party bearing the onus of proof than where he or she has declined to make such a finding. Secondly, while recognising that written reasons cannot provide a complete picture of the circumstances of the trial, or the considerations which may have led to the preferring of the testimony of one witness over another, nevertheless the appellate court is entitled to infer error from the manner in which the testimony was addressed in the reasons, including a failure to refer to factors which appear to the appellate court to be significant.

[6]

Procedural issues

Before turning to the factual dispute, it is necessary to note the manner in which the case was pleaded and determined. First, Mr Smith brought a claim against both the driver of the car in which he was travelling, namely Ryan Harris (the first defendant), and against the Nominal Defendant as the entity responsible for negligent driving of the unidentified vehicle (the second defendant). His claim was that at a particular point, whilst travelling south on Eastern Valley Way, "the first defendant applied the brakes and caused the first defendant's vehicle to swerve so as to avoid a merging vehicle … [which] caused the first defendant's vehicle to slide into oncoming traffic where it collided with an oncoming vehicle". [13] The claim noted that the proceedings against the Nominal Defendant were brought pursuant to s 34 of the Motor Accidents Compensation Act 1999 (NSW).
In its defence, the Nominal Defendant denied the presence and the involvement of any unidentified vehicle. The Nominal Defendant issued a statement of cross-claim against Mr Harris, who in turn issued a cross-claim against the Nominal Defendant. Each cross-claim depended upon a finding in favour of the plaintiff of negligence on the part of the cross-claimant. In his defence, Mr Harris expressly "admitted" the allegations with respect to the merging vehicle in the plaintiff's statement of claim.
The trial judge assessed damages in an amount of $425,366. He then gave judgment in favour of the plaintiff against each defendant separately, apportioning the damages according to his conclusions as to their respective levels of responsibility for the accident. The cross-claims were dismissed.
Although no complaint is made on the appeal as to the form of these orders, they are, nevertheless, incorrect. There is nothing in the Motor Accidents Compensation Act requiring (or permitting) apportionment of damages in respect of personal injury. [14] The plaintiff was entitled to judgment for the full amount of his loss against each defendant found liable; the defendants were, in accordance with their cross-claims, entitled to judgments against each other. [15]
Those matters aside, the important consideration of present relevance is that the plaintiff bore the burden of proving that there was an unidentified vehicle involved in the accident, in order to succeed against the appellant.

[7]

Resolving the evidential conflict

The trial judge set out with some care, and in comprehensive fashion, the thrust of the evidence, the legal principles to be applied and the submissions of the parties on liability, commencing with the defendants rather than the plaintiff, but otherwise in a helpful, structured way. The first findings related to the plaintiff's credit. In this respect, the reasoning was set out in an unusual order. After identifying some of the plaintiff's personal circumstances, together with his work record, the trial judge stated: [16] "I found the plaintiff to be essentially a truthful witness, although he was at times prone to exaggeration …."
The judge then proceeded to deal with (and dismiss) six factors relied upon by the second defendant in support of a submission that a more guarded finding as to credibility was appropriate. Nevertheless, that finding is not impugned.
What then follows is more puzzling, as to the structure of the reasoning. Paragraphs [48]-[49] are included under the heading "The Plaintiff's Credit", although they go beyond that issue. Paragraph [50] under the heading "Determination - Findings of Fact" then identified in 14 subparagraphs the critical findings with respect to liability.
After stating, at [46], that he was "not persuaded that the attack on the plaintiff's credit is made out", the judge continued at [47]: "Nor do I accept the second defendant's submissions that the collision was not, on the balance of probabilities, caused by the negligent driving of the unidentified black vehicle. The four bases of that submission set out in [28] are just not made out on the evidence."
The four bases were: "(i) The inherent unlikelihood of a vehicle moving from the kerbside to the middle lane directly across the path of the first defendant's vehicle in circumstances where there were no vehicles or other obstacles directly in the path of the unidentified vehicle as it travelled in the kerbside lane. (ii) The evidence of Ms Callister as to the movement of the vehicle would be preferred over the evidence of the plaintiff. (iii) The movement of the first defendant's vehicle is consistent with an out of control vehicle travelling on a wet road, having just negotiated a left bend; and (iv) Ms Callister has consistently maintained that there was no other south bound vehicle between the plaintiff's vehicle and her own at the time she first observed the plaintiff's vehicle."
Dealing with the first of the four matters the judge stated: "There is no basis upon which to find an inherent unlikelihood of a vehicle moving from one lane to another across the path of another vehicle. That is a common enough occurrence."
This response failed to address the substance of the submission, which did not suggest any inherent unlikelihood of a vehicle simply moving from one lane to another, but doing so where there were no vehicles or other obstacles directly in its path. It was open to the trial judge to reject that submission, or at least discount its weight, but the true force of the submission appears not to have been appreciated. The reasons do not disclose that it was.
The next three matters were described as concerning "the evidence of Ms Callister and the contention that the movement of the first defendant's vehicle as observed by her was consistent with a vehicle coming out of control, having just negotiated a left bend." Those three matters could not fairly be rolled into one and blithely dismissed as "not made out on the evidence". That finding could have amounted to a rejection at a threshold stage of Ms Callister's evidence. If so, it was necessary to give a reason for that rejection as the evidence was by no means inherently implausible. Ms Callister was an independent witness holding a responsible position as the Chief Executive Officer of the Salvation Army Aged Care Plus, whose credit was not challenged. Her testimony, consistent from the time of her first statement to the police, given a month after the accident, to the end of her cross-examination, could not properly be dismissed out of hand.
Whether that was intended was unclear: the judge then asked whether the evidence of the plaintiff and Ms Callister "together with the other evidence supporting the plaintiff's claim as set out above, are so diametrically opposed that the plaintiff's evidence just cannot be accepted."
In truth, that was not the "real issue": the real issue was, whether, weighing the evidence of the plaintiff and Ms Callister, together with any other relevant circumstances, and attributing to each its strengths and weaknesses, the judge was persuaded on the balance of probabilities that the plaintiff's account was true and reliable.
Having then noted that different accounts may result from the different perspectives and perceptions of the witnesses as to critical events, the judge restated the question at [49]: "The question here is whether the evidence of the plaintiff and Ms Callister are simply irreconcilable. If so, and the evidence of Ms Callister, who was a disinterested party in the litigation, is accepted by the Court, then the plaintiff would, in the second defendant's submission, have failed to establish his claim against the second defendant on the balance of probabilities as it could not be said that he had established the presence of the black car on the roadway to that standard of proof."
That was at least part of the necessary approach to the fact-finding; but the evidence was not addressed in that way. The trial judge then turned at [50] to make what he described as "the following findings of fact". These are set out in 14 subparagraphs. The first four were uncontroversial descriptions of background matters. Subparagraph 5 read as follows: "(5) As the vehicle travelled south, the plaintiff was making a phone call on his mobile phone and not concentrating on the roadway in front of the vehicle." It will be necessary to return to this finding shortly when considering the assessment of the plaintiff's evidence.
Subparagraphs (6) and (9) were neutral and uncontested; however, subparagraphs (7) and (8) were consistent only with the plaintiff's account and inconsistent with Ms Callister's evidence. What followed was a set of five subparagraphs, (10)-(14), which broadly constituted reasons for not accepting Ms Callister's inconsistent account. The problems which arose from this approach are best demonstrated by dealing with the evidence of each witness in an orderly fashion.
The plaintiff's evidence in chief was concise: after Mr Harris turned right onto Eastern Valley Way, he stated: "We were driving down the road and next minute we've come around the bend and this black car's come and cut in front of us, and Ryan's broke to avoid an accident, and then the next minute he's lost control and we've ended up on the side of the road, and all I can remember is turning my head to the left and seeing a four wheel drive coming at me and hitting me."
His counsel sought to extract some more details, but few were material. He said there were no cars in front of them when they turned into Eastern Valley Way, nor were there any cars travelling north on Eastern Valley Way when they crossed into the south-bound lanes. He said Mr Harris turned into the centre lane. He was then asked for how long or for what distance he had travelled on Eastern Valley Way when he noticed the "black vehicle." Somewhat unhelpfully, he said "[p]robably three minutes, three or four minutes." That statement was palpably wrong: the vehicle travelled little more than 150 metres on Eastern Valley Way before the collision, at which stage it was found to have been travelling at excessive speed and, the plaintiff accepted, had already reached 60 kph.
The other matter of detail which emerged in response to a leading question was that he (the plaintiff) was on his mobile phone "at this time". What he was doing on the phone emerged further in the course of cross-examination. He was asked whether, when Mr Harris drove out of the driveway onto Eastern Valley Way and turned right, he saw any cars to his left. He said: [17] "A. No, I couldn't. I was on the phone so I wasn't really paying attention, to be honest. Q. But were you looking ahead or were you looking down? Where were you looking? A. I would have - I could've looking anywhere. I could've been looking straight, I … I'm on the phone. I'm not - I'm not driving so I'm not really paying attention to the traffic."
The evidence given by Ms Callister, both in her statement to police a month after the accident and, consistently, in her evidence in chief and under cross-examination involved two essential elements, namely: (a) she saw Mr Harris' vehicle "fishtailing" across the road and apparently out of control, and (b) from the time she noticed the vehicle approaching her, his was "the only vehicle in the oncoming lanes".
In her evidence in chief, she described travelling north on Eastern Valley Way and negotiating a left hand bend. She then gave the following evidence: [18] "Q. When you effectively cleared that left bend and had the view down did you see something down the road? A. As I was travelling down the straighter part of the road I did see the vehicle that ended up colliding with me. I saw it coming around the bend and it was fishtailing, it appeared that it was out of control and I watched it, I slowed down and I remember thinking to myself I'm glad I'm not on that side of the road because the car was out of control."
She further stated that after thinking that she was safe, "then I don't have a good memory of what happened after that, all I remember is that my car was off the road kind of in the ditch. The airbags had deployed. I thought the car was on fire. I just was completely shocked … and I had a really sore head because my head had bashed on the side of the door …".
In cross-examination, Ms Callister agreed that she was watching the fishtailing vehicle: [19] "Q. And the moment you saw that, let's call it fishtailing vehicle for the moment, your eyes were fixated on it weren't they? A. I was looking at that but I'm looking at the whole picture in front of me. Q. I appreciate you're driving forward but you attention was particularly wasn't it, on that out of control vehicle. Isn't that right? A. My attention was on that vehicle, yes, it was."
She was later questioned about her statement that there were no other cars on the road. The questioner suggested that the police did not put to her that there was a black car on the road. The following evidence was given: [20] "A. No, it wasn't but I can tell you right here right now in my memory I can see one car fishtailing along the road. There was no other car there. Q. But there could have been, you just didn't see it travelling in front of the fishtailing car? A. No, I had a clear view of the car. Q. Of the car but what about other cars that were travelling in the opposite direction before your focused attention on the fishtailing car? A. When I had focused attention on the fishtailing car there were no cars between my car and it. Q. But what you don't remember is any other vehicle before you saw the fishtailing car, do you? A. That's correct."
For reasons which are somewhat obscure, counsel for the plaintiff also cross-examined Ms Callister about the possibility that there may have been another car involved. [21] "Q. … Because you didn't notice the fishtailing car until it came around the bend - A. Because I couldn't see it. Q. In your line of sight, sorry to cross you, yeah, because you didn't see it. A. Yeah. Q. You wouldn't know what caused the fishtailing car to lose control at first would you? A. No. Q. And it's a possibility then madam, that if there was a third car around the bend, causing the fishtailing car to lose control, you would not have seen that car cause the fishtailing car to lose control would you? A. No, I would have no idea what caused the fishtailing car to lose control because my first line of sight was the car out of control. Q. Thank you madam. And so that if there was - I'll ask you to assume, that if there was a third car, a black that caused the fishtailing car to lose control around that bend you couldn't see around, it would have passed around the bend and before you noticed the fishtailing car, that would be right wouldn't it? A. No, not a chance. Q. Why not? A. Because I had a very clear distance between myself and the car that was fishtailing and there were no other cars. Q. And you say that that's what, 100 or was it 200 metres before you saw the fishtailing car? A. I said in my statement I think I just read between 100 and 200 metres. … Q. … And it all happened in a matter of seconds, is that right? A. Yes."
The trial judge accepted this evidence, except for the statement that there was "not a chance that any other car would have passed the vehicle being driven by the first defendant". [22] He appears to have rejected the suggestion that there was "a very clear distance" between herself and Mr Harris' vehicle at the time she first saw it. The judge suggested that the distance had been too short for her to be able to take evasive action, a proposition inconsistent with her evidence that she had seen the vehicle out of control but largely on its side of the road and had formed the view that she was safe, before it veered onto her side of the road.

[8]

Flaws in reasoning

With respect, this approach was not available, for a number of reasons. First, it was inconsistent with the objective evidence as to the point of collision, the distance between that point, the bend which, when completed, allowed Ms Callister a view down a straight stretch of Eastern Valley Way, the evidence that she saw the other vehicle come around the bend into the straight stretch and the distance that vehicle had travelled before veering across in front of her.
Secondly, the judge referred to her evidence that she had been very shocked following the accident and that she had no recollection of the point of impact. [23] While it is no doubt true that the shock of an imminent collision might render a witness oblivious to other circumstances, it was at least significant that Ms Callister did not immediately feel that she was at risk, although she was undoubtedly focusing attention on the fishtailing vehicle. There was no basis in the evidence for giving significant weight to this possibility.
Thirdly, he found as a fact that Ms Callister had "no recollection of being asked whether she ever saw a black car coming in the opposite direction and there was no such reference to a black car in her statement." [24] The evidence in that regard was, initially, that she did not recall being asked whether she ever saw a black car coming in the opposite direction, but on further cross-examination she agreed that she had not been asked that question by the police officer. In any event, there was no basis for finding in this evidence a faulty memory as to the events of the day in question, or an acceptance that her evidence was in some way less than complete. Nevertheless, in accepting her evidence that she had "focused her attention on the fishtailing car" and that "there were no other cars travelling in a southerly direction between her car and it", the judge said he did so "as her recollection of an event which was somewhat imperfect." [25] The evidence quoted at [35] above, provided no basis for such a finding. She was unequivocal as to the point at which her recollection failed, which was after she saw the vehicle veer across in front of her. Nor was it suggested to her that her recollection (as opposed to perception) of prior events was incomplete. The thrust of the cross-examination was that she did not know what caused the other vehicle to lose control and that, in focusing on the other vehicle, she might have failed to see the black car.
Fourthly, the judge accepted that Ms Callister did not see "what caused the other vehicle to lose control as it negotiated the bend." Whether that constituted a finding, contrary to the plaintiff's evidence, that the vehicle in which he had been travelling did lose control as it negotiated the bend, is unclear. Significantly, the judge continued: "I am not prepared to speculate about the course of travel of that unidentified black vehicle."
The last statement was not consistent with the finding at (7), where the judge had stated in unequivocal and unqualified terms: "As the vehicle [driven by Mr Harris] negotiated the left-hand bend in the roadway, a black coloured vehicle travelling in the kerbside lane merged into the centre or second lane, cutting off the vehicle being driven by the first defendant."
Fifthly, the judge relied upon "documentary evidence …, including the first defendant's statement …, the journey claim completed by the plaintiff on 21 March 2012 … and the statement to the police dated 28 August 2012" as providing "a consistent version of the accident consonant with the plaintiff's evidence, and the statement given by the first defendant to the police." [26]
Mr Harris' statement to police was not admitted as to the truth of its contents. It was not necessarily irrelevant, as it could have been relied upon as evidence that the plaintiff knew that Mr Harris had told the police there was a black car before he, the plaintiff, spoke to the police. However, that was not the use to which it was being put by the trial judge in this passage. Rather, it was seen as "consonant with" or, presumably, corroborative of, the plaintiff's evidence. That could only be so if the statement were true, an inadmissible use.

[9]

Matters not addressed

To uphold the plaintiff's claims, other factors needed to be taken into account, adverse to his account. First, the plaintiff's account was not provided to any person until he visited the police station with Ryan Harris six months after the accident. At that stage, he gave an account which was consistent with Mr Harris' account. Secondly, while Mr Harris' account was given to the police shortly after the accident, it was not an immediate and spontaneous account, being given more than two hours after the accident.
Thirdly, if there were a possibility that Ms Callister had an imperfect perception of events, the same must be equally true (if not more so) in relation to the plaintiff. As he said, he was not driving and was not focusing on the road and was "on his mobile phone", it being unclear whether he was speaking or texting, and, if the latter, looking down at the phone rather than out of the window.
Fourthly, it was necessary for the trial judge to consider the objective likelihood of Mr Harris losing control without the intervention of a reckless third party. In that respect, there was evidence before the Court of the fact that Mr Harris had lost his licence prior to the accident. There was also evidence that, some six months later, his employer had received reports of him driving erratically and at dangerous speeds on a freeway, in a truck with a GPS tracker which recorded speeds between 120 and 130 kph and at times touching 140 kph. A complaint was received by his employer that he had been tailgating and had swerved at a car. Those documents were admitted without objection as explaining the circumstances leading to the plaintiff's dismissal from his employment. However, there was no suggestion of any limitation on their use. In the absence of any explanation from Mr Harris, they constituted material relevant to the objective likelihood of Mr Harris driving the vehicle in a manner which led to a loss of control.
Fifthly, the judge made no finding as to Ms Callister's unequivocal description of the approaching vehicle "fishtailing": it was neither accepted nor rejected. There was no reason to reject it: indeed, the out of control behaviour of Mr Harris' vehicle appears to have been a significant factual basis for the hypothesis that there was a black car, but Ms Callister failed to see it.
It is of course possible that there was a black car and Ms Callister failed to see it. However, to be satisfied on the balance of probabilities that that was so required some explanation of her unequivocal evidence that there was no car. The black car, on the plaintiff's account, cut in front of Mr Harris' vehicle and was thus in the southbound lane closest to the centre of the road. As it cut in front, it would have been almost directly between Ms Callister and the plaintiff's vehicle. That is because, according to Ms Callister, she saw the plaintiff's vehicle coming around the bend and it was "fishtailing", being the precise point in time at which, according to the findings of the trial judge, the black vehicle merged into the centre lane cutting off Mr Harris' vehicle. The immediate difficulties with the judge's findings are that they fail to take into account the precise position of the black vehicle, the distance travelled by Mr Harris' vehicle before the collision and after it rounded the bend and the time taken to travel that distance. On the supposition that there had been a black car, which drove so as to cause Mr Harris to lose control, the fact that Ms Callister did not see it renders the supposition less plausible than the contrary hypothesis, that there was no such car.
Finally, in assessing the way in which the trial judge dealt with the critical evidence, three further factors should be taken into account. First, it was necessary to be satisfied as to the truth of the plaintiff's case without evidence from Mr Harris. That is not to suggest that an inference should be drawn from the failure of the plaintiff to call Mr Harris, who was a defendant and whose absence was not fully explained. It is merely to note that there was a critical gap in the evidence.
Secondly, so far as the plaintiff was concerned, the trial judge did not accept that his evidence was in all respects beyond criticism. An example of the hyperbole to which the trial judge referred was his somewhat bizarre estimate of time driving on Eastern Valley Way before the accident. Thirdly, there was no criticism made of the credibility of Ms Callister; to the extent that he did not accept her evidence, the trial judge did not suggest there was any reason other than an inference as to possible unreliability, derived from the circumstances of the accident. There was no purported adverse reliance on demeanour.

[10]

Conclusions

For these reasons, and those given by Leeming JA, the plaintiff's case that there was a black car involved in the accident was not established on the reasoning of the trial judge. The judgment against the Nominal Defendant should be set aside.
It does not follow that this Court is in a position to resolve the issues in dispute. It cannot be said that no finding against the Nominal Defendant was open on the evidence: it can only be said that the reasoning by which the trial judge reached that finding was tainted by error. Accordingly, there must be a retrial.
The question is what should be remitted? A matter can only be remitted for retrial if to do otherwise would lead to a substantial miscarriage of justice: Uniform Civil Procedure Rules 2005 (NSW), r 51.53(1). The Court has power to remit part only of the matter in controversy: r 51.53(3).
On the basis identified above, the plaintiff is entitled to judgment against the first defendant (Mr Harris) for the full amount of his damages and for his costs of the trial. The orders below should be corrected to give effect to that conclusion. In the result, having a judgment against the first defendant who was insured, the plaintiff has no further practical interest in the proceedings. Further, because there is now no judgment in favour of the plaintiff against the Nominal Defendant, the cross-claim brought by the Nominal Defendant against the first defendant could be dismissed, with no order as to costs.
There remains the cross-claim brought by the first defendant (and in practical terms, his insurer) against the Nominal Defendant. As the first defendant has a judgment against him, he is entitled to claim contribution against another tortfeasor. If judgment were entered for the Nominal Defendant against the plaintiff, Mr Harris' cross-claim must fail: James Hardie & Coy Pty Ltd v Seltsam Pty Ltd. [27] In these circumstances, the remittal cannot be limited to the cross-claim brought by the first defendant against the Nominal Defendant; it must extend to the plaintiff's claim against the Nominal Defendant, although the plaintiff may have no interest in pursuing it. That means that the Nominal Defendant's cross-claim against the first defendant cannot be dismissed.
This reasoning supports the following orders: (1) Allow the appeal and set aside the judgment against the Nominal Defendant given in the District Court on 6 February 2015. (2) Set aside orders (1)-(4) made in the District Court and in place thereof: (a) give judgment for the plaintiff against the first defendant (Ryan Harris) in the sum of $425,366; (b) order that the first defendant pay the plaintiff's costs of the first trial. (3) Remit to the District Court the remaining issues, including any claim by the first defendant for contribution to the costs payable by it to the plaintiff. (4) Order that the second respondent (Ryan Harris) pay the costs of the appellant in this Court.
LEEMING JA: I agree with the orders proposed by Basten JA. Where as here this Court is divided, and a majority proposes to allow an appeal from the decision of the primary judge, I think it is best that I provide my own reasons as an independent explanation for my participating in the decision, notwithstanding that to do so adds to the length of the judgment and involves a measure of repetition.

[11]

The evidence as to the collision on 29 February 2012

The central issue at the trial was how, shortly before 12.40pm on 29 February 2012, Mr Ryan Harris' Nissan Skyline came to a standstill, facing into the gutter of the wrong side of Eastern Valley Way, Chatswood. Ms Sharon Callister was travelling in the opposite direction and saw Mr Harris' vehicle fishtailing out of control. She saw it come to a rest on her side of the road. She was unable to avoid a collision, and was herself injured and taken by ambulance to hospital. She was not so seriously injured as the plaintiff, Mr Jereme Smith, who was in the front passenger seat of the Nissan Skyline.
There was no dispute that, although it was the middle of a summer's day, conditions were wet and dark.
Eastern Valley Way has two lanes in each direction at the point of the collision, separated by double lines. Mr Harris had driven out of the driveway of his workplace, Life Fitness Australia, turned right onto Eastern Valley Way, and was driving around a gentle left hand turn before he lost control of his vehicle. Ms Callister had a clear view of oncoming vehicles as they completed the curve.
Ms Callister gave evidence that there was no other vehicle heading towards her save for the Nissan Skyline. She plainly believed that she had (a) an actual recollection of the event ("I can tell you right here right now in my memory I can see one car fishtailing along the road") and (b) a "clear view of the car". Had there been a black car, it would have been directly in her line of vision, driving towards her in the same direction as the Nissan Skyline. Ms Callister had no reason to tell anything other than her recollection, and she was candid as to the limitations of her recollection in the immediate lead up to and aftermath of the collision. It was never suggested that she was anything other than truthful.
Mr Smith said that he was speaking on his mobile phone when an unidentified black car had "come out of nowhere and come into our lane" from the kerbside lane, causing Mr Harris to swerve and lose control: at [5]. He maintained that evidence under lengthy cross-examination, including extensive cross-examination directed to impugning his credit.
Mr Harris did not give evidence. Prior to the trial, he had been convicted of negligent driving causing grievous bodily harm and driving with an expired driver's licence. He and Mr Smith had also been sacked in October 2012 from Life Fitness Australia, where they both worked, following a complaint that they had been speeding in the company's truck the previous week. That was the last of a series of complaints to the company concerning the driving of Messrs Harris and Smith.
There was evidence, admitted on a limited basis, that Mr Harris had told a police constable called to the scene that a black car had swerved in front of him, causing him to slam on the brakes, lose control and slide into oncoming traffic. After being cautioned that he did not have to answer, Mr Harris told the constable that he was unaware that his driver's licence had expired the previous November. Mr Harris signed the constable's notebook immediately after that answer was recorded, dated it and gave the time as 3pm.
Mr Smith remained in hospital until 3 March 2012. The first time he is recorded in the evidence as describing the events leading up to the collision was in a workers compensation journey claim dated 21 March 2012. The form completed by him gave the number plate of Ms Callister's vehicle correctly.

[12]

The reasons of the primary judge

The primary judge reserved after hearing the trial over four days in December 2014, and delivered judgment early in 2015.
After dealing with the issues and the evidence and competing submissions, the primary judge first addressed the substantial attack on the credit of Mr Smith. His Honour resolved that challenge favourably to Mr Smith, on the basis of his being "essentially a truthful witness, although he was at times prone to exaggeration": at [45]. It was not sought to impugn that favourable assessment on appeal.
The primary judge then framed the question as "whether the evidence of the plaintiff and Ms Callister [is] simply irreconcilable": at [49]. His Honour concluded that Ms Callister's evidence was imperfect, and that a black vehicle had cut off Mr Harris in the way described by Mr Smith. After noting that Mr Smith was not concentrating on the roadway, his Honour's dispositive reasoning was as follows, at [50]: "The driver of the RAV 4 vehicle, Sharon Callister, saw the vehicle, in which the plaintiff was travelling as a passenger, at a time when the driver had lost control. The incident happened quickly and her vehicle ended up off the western side of Eastern Valley Way, down an embankment. She described herself as being very shocked following the incident and she had a recollection of the other vehicle fishtailing out of control. She slowed her own vehicle down, but had no recollection of the impact between her vehicle and the vehicle in which the plaintiff was travelling as a passenger. Ms Callister had no recollection of being asked whether she ever saw a black car coming in the opposite direction and there was no such reference to a black car in her statement. Whilst I accept her evidence that when she had focussed her attention on the fishtailing car, there were no other cars travelling in a southerly direction between her car and it, I do so as her recollection of an event which was somewhat imperfect. I find that she did not see what caused the other vehicle to lose control as it negotiated the bend. In doing so, I am not prepared to speculate about the course of travel of that unidentified black vehicle. I do not accept the evidence of Ms Callister that there was not a chance that any other car would have passed the vehicle being driven by the first defendant because she had a 'very clear distance between herself and the car that was fishtailing and there were no other cars'. The fact that she collided with the first defendant's vehicle as it was stationery across the northbound carriageways of Eastern Valley Way, suggests that there was not a very clear distance between herself and that vehicle, or that she was able to make other observations in respect of traffic on her approach to the point of inpact. Rather, it is clear that she had been unable to take evasive action and no doubt her attention was focussed on that vehicle. Further, her statement to the investigator (exhibit 2D10) makes it clear that the vehicle was fishtailing across the road. The documentary evidence referred to above, including the first defendant's statement (exhibit G), the journey claim completed by the plaintiff on 21 March 2012 (exhibit 1D1) and the statement to police dated 28 August 2012 (exhibit 8), provide a consistent version of the accident consonant with the plaintiff's evidence, and the statement given by the first defendant to the police."
Those findings of primary fact led to conclusions that both the unidentified driver of the black vehicle (and therefore the Nominal Defendant) and Mr Harris were liable to Mr Smith. The primary judge apportioned liability at 60% to the Nominal Defendant and 40% to Mr Smith. That apportionment is the subject of the cross-appeal.

[13]

The nature of the appeal in this Court

I agree with what Basten JA has written at [6]-[11] concerning the nature of this Court's duty on hearing and determining an appeal from the decision of a trial judge sitting without a jury, and add the following.
I agree that it is not sufficient for this Court to conclude that a finding was "open" on the evidence. As much was resolved by the endorsement by the majority in Warren v Coombes (1979) 142 CLR 531 at 549 of what Jacobs P had written six years earlier in Cashman v Kinnear [1973] 2 NSWLR 495 at 498: "Even though a finding of negligence was open on the evidence, the question still remains whether the conclusion of the trial judge that there was negligence was right or wrong. If I finally reach the conclusion that it was right, the appeal fails. If I finally reach the conclusion that it was wrong, then in my view the appeal succeeds."
Jacobs J participated in the joint judgment in Warren v Coombes only weeks before his untimely resignation from the High Court. Coincidentally, his decision in Cashman v Kinnear was delivered in December 1973, shortly before his appointment to the High Court in February 1974. His reasons reflected the experience of a judge who had sat on an intermediate court of appeal for seven years, following a further six years sitting at first instance. They also reflected a characteristic humility, captured in another passage from Cashman v Kinnear endorsed by the High Court in Warren v Coombes at 549, which bears repetition: "Thus if by judicial restraint is meant the lack of overweening certainty in one's own opinions so that respect and weight is given to the opinion of the judge below, then it is something always to be sought. The effect of that respect and weight will vary depending upon the subject matter and will be greatest where the opinion involves a discretionary judgment and next where the subject matter is one of conclusion or evaluation drawn or made from the facts found. But in truth this quality of respect must be all pervading whether the subject be fact or law. However, if it be suggested that by judicial restraint a judge exercising his office under the Supreme Court Act, 1970, and its predecessors should restrain himself from giving effect to his own conclusion once he has, after applying to himself the mental restraint which flows by the process which I have described, finally reached that conclusion then it is in my view a suggestion contrary to that Act and its predecessors and I do not think that it should be adopted in the absence of a clear authority binding this Court."
I must and do give respect and weight to the reasoning of the primary judge. I am conscious that the primary judge was faced with a difficult task to resolve the factual controversy, and carefully recounted the competing evidence before him.
However, notwithstanding the advantages enjoyed by the primary judge, I have nonetheless concluded that it is necessary to intervene. My conclusion rests on two bases. The first is that there has been a failure to weigh the competing testimonial evidence of Mr Smith and Ms Callister. The second is that there has been a failure to assess the testimonial evidence against the objective facts, motives and overall probabilities of the case.

[14]

The need to weigh the competing testimonial evidence

The dispositive paragraphs of the reasoning of the primary judge focus, almost exclusively, upon limitations in the reliability of Ms Callister. It is as though, having first rejected the challenge to Mr Smith's credit, the primary judge proceeded on the basis that the reliability of his evidence was thereafter to be accepted unless he were satisfied that Ms Callister's evidence was reliable. But an honest witness, trying as best as he or she can to give accurate evidence, may still be unreliable.
The trial judge was faced with diametrically opposed evidence of two witnesses whom he considered to be truthful. The recollection of either or both was unreliable. Both had been injured and each was taken to hospital by ambulance. There were considerations favouring the acceptance of Mr Smith's evidence and telling against the acceptance of Ms Callister's evidence. But there were also considerations favouring the acceptance of Ms Callister's evidence and telling against the acceptance of Mr Smith's evidence.
On any view, one would expect the observations of other vehicles on the road to be more reliable when they had been made by a driver, rather than a passenger who was distracted by his mobile phone at the time. Although the primary judge referred at the beginning of the dispositive passage in his reasons to the partial distraction of Mr Smith, that does not seem to have been taken into account in assessing which of the two accounts was to be accepted.
On any view, there were other unreliabilities in Mr Smith's evidence. When asked how long he had travelled along Eastern Valley Way before being overtaken by the black car, he said, "Probably three minutes, three or four minutes". Many people's measurement of time is imprecise, and Mr Smith is an example. It could not have taken anything like three minutes for the Nissan Skyline to drive the 150 metres from the driveway of Life Fitness Australia to where Mr Harris lost control. I mean no criticism of him, but the primary judge's explanation for some of the other exaggerations and inaccuracies in Mr Smith's evidence was his very limited formal education (he left school at year 9). Those aspects of Mr Smith's evidence which detracted from its reliability should have been assessed and weighed in the balance against the evidence of Ms Callister.
That is not to say that Mr Smith should necessarily have been disbelieved. It is quite possible that there was a black car which Ms Callister did not see; as the primary judge said, it is natural that she focussed on the fishtailing Nissan Skyline which she failed to avoid. However, it is also quite possible that although Mr Smith genuinely believed that he had seen a black car which overtook him, in fact that was something that he did not see at the time and which he only came to believe in the days or weeks after the event. He was not driving, but was a passenger distracted by his mobile phone, and would naturally have focussed upon where the car in which he was travelling was veering out of control, rather than upon the black car. Although to some it may seem counterintuitive, I see no real difference between Ms Callister wrongly but genuinely believing that she could not have missed the black vehicle, and Mr Smith wrongly but genuinely believing that he did see the black vehicle. That is the nature of human memory. Writing extra judicially (P McClellan, "Who Is Telling the Truth? Psychology, Common Sense and the Law" (2006) 80 ALJ 655) Justice McClellan has observed (at 664 and 665) that memories are unstable and malleable and vulnerable to suggestion. I do not regard that as controversial. Nor do I read his Honour as regarding it as controversial. It is supported not merely by one's ordinary experience but also by a body of psychological evidence: see for example Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; 66 NSWLR 186 at [18]-[20] and R v Gittany (No 4) [2013] NSWSC 1737 at [334]-[341].
The approach adopted by the primary judge failed to have regard to the matters which favoured the acceptance of Ms Callister's evidence and which told against the acceptance of Mr Smith's evidence. This was a case, like Nominal Defendant v Mokbel [2015] NSWCA 3, where it was necessary to "balance" or "weigh" the evidence of one witness against that of another. On a fair reading of his Honour's reasons, that did not occur.
A second difficulty is that the primary judge was "not prepared to speculate about the course of travel of that unidentified black vehicle": at [50]. Since his Honour found that the unidentified black vehicle had caused Mr Harris to swerve and lose control, I would read his Honour's statement as indicating that he decided not to make additional findings about where the vehicle had come from and where it was driving to. But if the unidentified black vehicle existed, then it must have come from somewhere and it must have gone somewhere after leaving Mr Harris' vehicle behind. There were two aspects of its course of travel that were important for the purposes of the trial. 1. The first was to explain how Ms Callister failed to see the black car. To be clear, I accept that it was possible that it went straight past Ms Callister, who failed to see it, and who was simply wrong to (genuinely) believe that it was impossible that she failed to see it. The difficulty is that in order to evaluate which of the two honest witnesses' evidence was to be accepted, the primary judge failed to attend to all that followed from acceptance of Mr Smith's account. That is precisely what was avoided by his Honour's declining to speculate about the course of the black vehicle, but it is an aspect of weighing all of the evidence in order to make findings of disputed fact. 2. The second important aspect was as to the manner in which the black car was travelling. Did it have its lights on (which would have made it all the more unlikely that Ms Callister failed to see it)? What speed was it travelling at? Those questions were relevant to the apportionment of liability between Mr Harris and the Nominal Defendant.
A third difficulty arises from his Honour's reliance on the documents said to provide "a consistent version of the accident consonant with the plaintiff's evidence": at [50]. The record of what Mr Harris told Constable Charlton was admitted only as evidence of police inquiries of due search and inquiry, and not as evidence of the truth of what was said. The Nominal Defendant was correct to submit that the primary judge used that record for a purpose contrary to the ruling on which it was admitted.
More generally, it may be inferred that Mr Harris and Mr Smith had spoken about the accident prior to Mr Smith making his journey claim (to my mind, as well as being inherently probable, this follows from the fact that the document accurately records Ms Callister's vehicle's registration number). As it was put orally, "No doubt the plaintiff spoke to Mr Harris after this event and it may be that the plaintiff was genuinely given the impression by Mr Harris that there was another vehicle involved". If in the days or weeks after the accident Mr Harris had caused Mr Smith to believe that he had lost control because of a black car, then the documents to which the primary judge referred would have given the same consonant account on which the primary judge relied. In other words, consistency of the accounts did not bear upon the reliability of Mr Smith's evidence, once it be accepted that one possibility is that his evidence was derived from what Mr Harris told him, rather than what he himself saw.
The primary judge found that Mr Harris had been driving at an excessive speed given the conditions of the road at the time: at [53]. He had plainly accelerated rapidly after leaving his company's driveway. Mr Harris was faced with the task of accounting to the police for driving which had left his vehicle stationary on the wrong side of a busy road, and two people injured. He may or may not have known at the time that his driver's licence had expired more than three months earlier, although I would regard it as on the cards that, in the minutes and hours following the collision, he appreciated that he would need to speak to police who would inevitably ask to see his licence. More than two hours elapsed between the collision and Mr Harris signing the constable's notebook. In those circumstances, it is quite possible that although Mr Harris told police that he had lost control of his vehicle when avoiding an unidentified black car, that was not the fact.
The task of the primary judge was to weigh up the accounts given by each witness, in light of what was objectively established, so as to resolve the factual contest. Sometimes it is possible for a judge to reject the evidence of a witness without weighing it against that of other witnesses, because it is inherently implausible or otherwise unsatisfactory. However, this is a case, like Dunleavy v Peak [2009] NSWCA 72 at [41], where the evidence of Ms Callister could not be treated summarily in that way.
The obligation cast upon the tribunal of fact in a civil case to "weigh the conflicting evidence" and "consider all the probabilities of the case" may be traced at least to Doe d Devine v Wilson (1855) 10 Moo PC 502 at 531; 14 ER 581 at 592, to which Dixon J referred in Sodeman v The King (1936) 55 CLR 192 at 216. The approach adopted by the primary judge failed altogether to address the possibility that Mr Smith erroneously believed he had seen a black car. That may have been a consequence of the emphasis given at trial to the attack upon Mr Smith's credit. However, I consider that, in the circumstances of this case, having resolved the question of credit, it was necessary for the primary judge to go on to address the reliability of Mr Smith's evidence.
To be clear, the possibility which I consider was not addressed was not that Messrs Harris and Smith colluded to present a false story that there was a black car. That was not put to Mr Smith, and it needed to be put squarely to him if it were to be an available finding of fact: cf Bradley v Matloob [2015] NSWCA 239.

[15]

The need to have regard to the objective facts, the witnesses' motives and the overall probabilities

In Armagas Ltd v Mundogas SA [1985] 1 Lloyds LR 1 at 57 (in a passage omitted from the report at [1986] AC 717), Robert Goff LJ said that he had been "driven to the conclusion" that the primary judge did not pay sufficient regard to "the objective facts and documents, to the witnesses' motives, and to the overall probabilities" in making findings of fact.
The particular facts of this case included that Mr Harris had accelerated rapidly and was driving too fast for the road conditions before losing control, that he was driving with an expired licence, that he had a motive to explain the fact that he had lost control of his vehicle through the fault of another driver, and the probability that Mr Smith had spoken with Mr Harris before providing an account of what had occurred.
I am conscious of the necessarily incomplete character of the primary judge's reasons. In part that arises because of the desirability of avoiding unnecessary prolixity and inessential detail: Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2]. In part it arises for the reasons given by Lord Hoffmann in Biogen Inc v Medeva plc [1997] RPC 1 at 45, in a passage approved in Williams v The Minister Aboriginal Land Rights Act 1983 [2000] NSWCA 255 at [137]: "The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la vérité est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."
However, notwithstanding those considerations, I have concluded that his Honour did not pay sufficient regard to the matters identified above bearing upon the objective facts, the witnesses' motives and the overall probabilities. Indeed, I do not think that any material regard was given to any of those matters.
Accordingly, I conclude that the process of fact finding has miscarried. That has occurred in a way which cannot be resolved on the papers by this Court. As will be apparent from the foregoing, I do not accept the Nominal Defendant's primary submission that the only available finding was that there was no unidentified black car.

[16]

Orders

Regrettably, there must be a further trial, limited to the question of the liability of the Nominal Defendant and, if so liable, contribution with Mr Harris. In those circumstances, it is not necessary to say anything about the cross-appeal challenging the apportionment of liability, save that it occupied very little time (barely more than one page of transcript) in the hearing of the appeal, was the subject of limited submissions, and is for those reasons appropriately ignored in dealing with the parties' costs in this Court.
I agree with the orders proposed by Basten JA.
SIMPSON JA: On 29 February 2012 the first respondent, Jereme Smith, was a passenger in a motor vehicle travelling in the southbound lane of the Eastern Valley Way at Chatswood. The driver of the vehicle was the second respondent (Ryan Harris). The vehicle collided with another vehicle, as a result of which Mr Smith sustained injuries. Mr Smith claimed that the initial cause of the collision was the sudden emergence of a third vehicle and its movement from the kerb side lane of the road into the path of Mr Harris' vehicle, causing Mr Harris to swerve, lose control of his vehicle, and travel into the northbound lane and into the path of an oncoming car driven by Ms Sharon Callister. The third vehicle has never been identified. Accordingly, Mr Smith brought proceedings under the Motor Accidents Compensation Act 1999 (NSW) ("the MAC Act") naming Mr Harris as first defendant (alleging that he was driving at an excessive speed, and so negligently managed his vehicle that it came into collision with Ms Callister's vehicle) and the Nominal Defendant as second defendant (alleging that the driver of the unidentified vehicle also drove at an excessive speed, and so negligently managed his/her vehicle that it caused the collision). Each defendant filed a defence, denying fault. Each filed a cross-claim against the other, alleging that the sole cause of the accident was the negligent manner in which the other vehicle was driven.
A trial took place in the District Court before Mahony DCJ, who gave judgment in favour of Mr Smith. [28] So far as the claim against the Nominal Defendant was concerned, it was accepted by the Nominal Defendant that Mr Smith had, for the purposes of s 34 of the MAC Act, made due inquiry and search to establish the identity of the third vehicle. The judge accepted Mr Smith's account of the circumstances of the collision, and therefore accepted that the collision had, in part, been caused by the fault of the driver of the unidentified vehicle. He also accepted that Mr Harris was at fault in the manner in which he drove and managed his vehicle. He allocated the responsibility for the accident as 60 per cent to the driver of the unidentified vehicle, and 40 per cent to Mr Harris. He awarded Mr Smith damages of $425,366, apportioned in accordance with that allocation of responsibility. He ordered both defendants to pay Mr Smith's costs but did not expressly order any apportionment. He dismissed both cross-claims, and ordered the parties thereto to pay their own costs.
The Nominal Defendant appeals against the judgment (as to liability only). The Notice of Appeal names Mr Smith as first respondent, Mr Harris as second respondent. The essential challenge made by the Nominal Defendant is as to the factual finding, that is, the judge's acceptance of Mr Smith's account of the circumstances of the accident. It is worth noting, however, that, should it be successful on the liability issue, it seeks orders that Mr Harris pay both its (the Nominal Defendant's) costs of the trial and the appeal, and Mr Smith's costs of the trial and the appeal.
Mr Harris cross-appeals. His cross-appeal is limited to challenging the apportionment of liability, which he asserts is excessive in so far as he was held liable as to 40 per cent. Specifically, he has not sought to challenge the finding of negligence against him. His appeal involves only the Nominal Defendant. He does not seek any orders that would adversely affect Mr Smith. He seeks an order that the Nominal Defendant pay the costs of the cross-appeal. He has not sought any costs order against Mr Smith.
Were the Nominal Defendant's appeal to succeed, Mr Harris would carry the whole of the liability for the damages awarded to Mr Smith. That being the case, and as the Nominal Defendant does not seek any costs order against Mr Smith and, instead, seeks an order that Mr Harris pay his own costs, Mr Smith has no relevant interest to protect in these proceedings. He has, unsurprisingly, filed a submitting appearance. Neither of the defendants has challenged the quantification of the damages awarded.
The Nominal Defendant's appeal is as to a finding of fact only. The restraint upon appellate interference with the fact finding task of first instance judges was spelled out in Fox v Percy. [29] It is necessary to bear that restraint in mind.

[18]

Mr Smith

In 2012 Mr Smith, then aged 29, was employed as an installer with an organisation called Life Fitness Australia. He was based at the premises of that organisation on Eastern Valley Way at Chatswood. He lived at Wattle Grove. Because his own car was being serviced, he had travelled to work with Mr Harris (also an installer) in Mr Harris' car.
On 29 February Mr Smith and Mr Harris worked as usual, but had completed all the work available for them by lunchtime. They were allowed to leave early, and did so, in Mr Harris' car. Mr Smith sat in the front passenger seat. It had been raining heavily. The road was wet. Although it was the middle of the day, it was dark and visibility was poor. Mr Harris turned right onto the southbound lanes of the Eastern Valley Way, and into the second (of two) lanes (nearest the centreline). Mr Smith was making a call on his mobile telephone. As the car rounded a bend in the road, Mr Smith saw a black car cut in front of them. This caused Mr Harris to brake. He lost control of the car, which travelled to the wrong side of the centreline, into the path of oncoming (northbound) traffic. A four wheel drive vehicle driven by Ms Callister struck the passenger side of Mr Harris' vehicle. Mr Smith recounted the circumstances as follows: "Basically what happened, as we turned right onto Eastern Valley Way, and we were driving - like I said before, it was a rainy day, and we've come around the corner, and the next minute this car's come out of nowhere and come into our lane and [Mr Harris] broke [sic - braked] to avoid the accident, and because it was a terrible day, he's just lost control, and we've ended up on the other side of the road, and then the next minute all I can remember is just looking up and seeing a four wheel drive coming straight at me."
In cross-examination on behalf of the Nominal Defendant, it was put to Mr Smith that there was no black vehicle. The following questions and answers are relevant: "Q. What I want to suggest to you in fact as the vehicle came around that bend the vehicle in which you were travelling started to fishtail up the road, didn't it? A. No. So are you trying to say that - I don't understand what you're trying to say. Q. I want to suggest to you that there was no black vehicle that resulted in any emergency driving by Mr Harris. That is the case, isn't it? A. No. Q. What I want to suggest to you in fact is that as the vehicle came around the bend that is the vehicle driven by Mr Harris that you were in - - - A. Yes. Q. - - As he came around the bend it started to fishtail up the road that is travelling south? A. Yeah. Q. And I want to suggest to you that the car fishtailed for some distance, at least 50 metres, up the road before it then swung onto the incorrect side of the road. That's what happened, didn't it? A. No. Q. I want to suggest to you that effectively what happened was Mr Harris lost control of the car as it started to fishtail up the road. That's what happened isn't it? A. No. He lost control when the car cut in front of him and he broke [sic - braked]. Q. Yes. And you say from the moment he lost control what he did was brake and the car turned immediately to the right across the road? A. Yes. Q. I want to suggest to you that is not correct, that is not what happened, did it? A. No, it did happen."

[19]

Ms Callister

Ms Callister was called by the Nominal Defendant. She had made a statement to police on 29 March 2012. That statement was in evidence. It included the following: "4 On Wednesday 29th February 2012 I was driving my vehicle from Rockdale north along Eastern Valley Way towards Dee Why. At the time I was wearing my seatbelt and was travelling with my headlights on. The traffic was light at the time with minimal oncoming traffic and roads were wet at the time. 5 Around 12:30pm I was stopped at the intersection of Victoria Avenue and Eastern Valley Way Chatswood and was the first vehicle stopped at the traffic control lights. I continued to drive north along Eastern Valley Way at around 50km/hr down through the bends when I noticed an oncoming vehicle a couple of hundred metres ahead before the Caltex Service station, Smith Street Chatswood. 6 The oncoming vehicle was a Nissan Skyline and was travelling in the south bound lanes generally in the lane closest to the centre of the road towards me. He was the only vehicle in the oncoming lanes at the time. 7 I watched as the oncoming vehicle approached me and appeared to be 'fish-tailing' over the road and out of control. The whole car was moving throughout the lanes both south bound and slightly north bound. On seeing this I applied my brakes and began to slow my vehicle as I felt he was out of control." (Ex 2D9) Ms Callister made a further statement (to an investigator) on 25 October 2012, to the same effect (Ex 2D10).
Ms Callister gave evidence consistent with her statements. She said: "As I was travelling down the straighter part of the road I did see the vehicle that ended up colliding with me. I saw it coming round the bend and it was fishtailing, it appeared that it was out of control and I watched it, I slowed down and I remember thinking to myself I'm glad I'm not on that side of the road because the car was out of control …"
She was asked if she continued to observe the vehicle, and answered: "I did and I kept thinking to myself the words just kept coming to me, the car is fishtailing and I saw it veer in and out of the lanes a bit. It all happened really quickly and yeah, I just remember thinking that I am glad I'm not on that side of the road but as it turned out it came onto my side of the road anyway and collided with me."
She was then asked what she remembered "in terms of the sequence of events", and replied: "Yeah, so after I had seen the car coming towards me in the way that I described I'd applied my brakes and then it was coming closer and after I thought I'm glad I'm not on the side of the road that the car's on thinking that I was safe then I don't have a good memory of what happened after that, all I remember is that my car was off the road kind of in the ditch. The airbags had deployed. I thought the car was on fire. I just was completely shocked and I was - I was really scared because I thought the car was on fire but apparently it was just the dust from the airbags and I couldn't get out of the car and I had a really sore head because my head had bashed on the side of the door so I got into the back seat and anyway it's all a bit of a blur but a guy, I think it was a guy, helped me out and I just lay on the road until the ambulance came."
In answer to a specific question, Ms Callister said that: "There weren't any other cars on the road. I had a clear view between my car and the car that hit me."
Again in answer to a specific question she said that there were no cars between where she was and Mr Harris' vehicle. She maintained that position when cross-examined on behalf of Mr Harris. She said: "… I can tell you right here right now in my memory I can see one car fishtailing along the road. There was no other car there."
It was put to her that there could have been such a car, but she did not see it; she replied: "No, I had a clear view of the car … When I had my focussed attention on the fishtailing car there were no cars between my car and it."
However, in cross-examination on behalf of Mr Smith, she gave the following evidence: "Q. And it's a possibility then madam, that if there was a third car around the bend, causing the fishtailing car to lose control, you would not have seen that car cause the fishtailing car to lose control would you? A. No, I would have no idea what caused the fishtailing car to lose control because my first line of sight was the car out of control. Q. … I'll ask you to assume, that if there was a third car, a black [car] that caused the fishtailing car to lose control around that bend you couldn't see around, it would have passed around the bend and before you noticed the fishtailing car, that would be right wouldn't it? A. No, not a chance."

[22]

The judgment

The judge carefully reviewed all of the evidence and the arguments of counsel. In his consideration of Mr Smith's credibility, he said: "45 I found the plaintiff to be essentially a truthful witness, although he was at times prone to exaggeration, for example, his evidence, notwithstanding his complete lack of educational qualifications, that he would like to be a social worker."
He then rejected an attack upon Mr Smith's credibility, referring to (and rejecting) six specific aspects of the attack. It is not necessary to go into all of the details. By way of example, Mr Smith was cross-examined about his consumption of painkilling medication which, it was suggested, "lacked precision". Mahony DCJ considered that that was consistent with Mr Smith's general demeanour and low level of formal education, and found it "entirely reasonable" that he should use prescription strength analgesics "on an as required basis". He also referred to surveillance evidence which was intended to challenge Mr Smith's evidence that he now walked with a limp. He found the surveillance evidence insufficient to demonstrate lack of credibility in Mr Smith.
His Honour then made a series of factual findings, which included: "50 … (7) As the vehicle negotiated the left hand bend in the roadway, a black coloured vehicle travelling in the kerbside lane merged into the centre or second lane, cutting off the vehicle being driven by [Mr Harris]. … (12) Whilst I accept [Ms Callister's] evidence that when she had focussed her attention on the fishtailing car, there were no other cars travelling in a southerly direction between her car and it [Mr Harris' vehicle], I do so as her recollection of an event which was somewhat imperfect. I find that she did not see what caused the other vehicle to lose control as it negotiated the bend. In doing so, I am not prepared to speculate about the course of travel of that unidentified black vehicle. (13) I do not accept the evidence of Ms Callister that there was not a chance that any other car would have passed the vehicle being driven by [Mr Harris] because she had 'a very clear distance between herself and the car that was fishtailing and there were no other cars'. The fact that she collided with [Mr Harris'] vehicle as it was stationary across the northbound carriageways of Eastern Valley Way, suggests that there was not a very clear distance between herself and that vehicle, or that she was able to make other observations in respect of traffic on her approach to the point of impact. Rather, it is clear that she had been unable to take evasive action and no doubt her attention was focussed on that vehicle. Further, her statement to the investigator (exhibit 2D10) makes it clear that the vehicle was fishtailing across the road."
Accordingly, the primary judge found both Mr Harris and the driver of the unidentified black vehicle negligent and proceeded to the apportionment of liability and assessment of damages as set out above. He found that Mr Harris: "51 … was negligent in the manner of driving and control of his motor vehicle by failing to take precautions against a risk of harm to [Mr Smith] … In driving his vehicle at a speed where he could not manoeuvre it to avoid a collision with the unidentified black motor vehicle, and still maintain control of the vehicle, I find that [Mr Harris] breached his duty of care to [Mr Smith]."
He similarly found that the driver of the black unidentified vehicle breached his duty of care to Mr Smith by "veering suddenly onto the path of [Mr Harris'] vehicle".

[24]

(i) conflict in the evidence

In my opinion the first contention is based upon a premise that cannot be supported on the evidence. It is true that Ms Callister described, numerous times, the "fishtailing" of Mr Harris' vehicle. The Nominal Defendant asserted that Mr Smith specifically denied that the vehicle had "fishtailed". The evidence of Mr Smith to this effect was not identified. So far as I can see that is an overstatement of Mr Smith's evidence. The following exchange occurred in cross-examination of Mr Smith: "Q. What I want to suggest to you is that the car in which you were travelling started to fishtail up the road. Do you understand what I mean by the word 'fishtail'? A. Yeah. Q. Do you say you have never heard that expression, fishtailing? A. Fishtail like - you mean like a fish how the fishtail goes like this? Q. Precisely. A. Yes. Q. You are indicating with you[r] hand? A. Yes. Q. Moving backwards and forwards like a - - A. Like a fish. Q. - - the tail of a fish? A. Yes. Q. What I want to suggest to you in fact as the vehicle came around that bend the vehicle in which you were travelling started to fishtail up the road, didn't it? A. No. So are you trying to say that - I don't understand what you're trying to say. Q. I want to suggest to you that there was no black vehicle that resulted in any emergency driving by Mr Harris. That is the case, isn't it? A. No. Q. What I want to suggest to you in fact is that as the vehicle came around the bend that is the vehicle driven by Mr Harris that you were in - - A. Yes. Q. - - As he came around the bend it started to fishtail up the road that is travelling south? A. Yeah. Q. And I want to suggest to you that the car fishtailed for some distance, at least 50 metres, up the road before it then swung onto the incorrect side of the road. That's what happened, didn't it? A. No. Q. I want to suggest to you that effectively what happened was Mr Harris lost control of the car as it started to fishtail up the road. That's what happened, isn't it? A. No. He lost control when the car cut in front him and he broke [braked]."
Mr Smith's evidence in chief, extracted above, was that after the black car "come out of nowhere" Mr Harris "just lost control", causing their vehicle to end up on the other side of the road. That is not inconsistent with Ms Callister's account of the vehicle "fishtailing". There is no clear denial by Mr Smith that the vehicle had "fishtailed". It is plain that Mr Smith did not have a clear understanding of what the cross-examiner meant by "fishtailing". His denials (in the last two answers extracted) follow an apparent acceptance of "fishtailing", but may have been intended to be denials of fishtailing for 50 metres before swinging on to the incorrect side of the road, or of Mr Harris' loss of control of the vehicle after the fishtailing. What is clear is that he accepted - and, indeed, asserted - that Mr Harris had lost control of the vehicle. That is entirely consistent with Ms Callister's evidence. There is no conflict in the evidence that the primary judge failed to determine.

[25]

(ii) Jones v Dunkel

There was evidence that the solicitors representing Mr Harris (in reality, representing Mr Harris' insurance company) had made efforts to locate Mr Harris, and serve on him a subpoena compelling his attendance. These efforts were unsuccessful.
As set out above, the argument under this ground was that an inference of the kind referred to in Jones v Dunkel ought to be drawn against Mr Smith by reason of the absence of Mr Harris from the proceedings. The inference to which reference was made was set out in the judgment of Kitto J as follows: [31] "But what should have been added, and not being added was in the circumstances as good as denied, was that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. The jury should at least have been told that it would be proper for them to conclude that if [the absent witness] had gone into the witness-box his evidence would not have assisted the defendants by throwing doubt on the correctness of the inference which, as I have explained, I consider was open on the plaintiff's evidence." (italics added) In the judgment of Menzies J it was put this way: [32] "In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant … as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference."
The argument fails for two obvious and compelling reasons. The first is that, as Kitto J made clear, the inference is available where no sufficient explanation is given for the absence of the person who might have been expected to be called. In this case, Mr Harris' absence was explained - he was unable to be located.
The second, and even more compelling, reason to reject the submission is that it overlooks an important consideration. In this respect it is to be emphasised that the Nominal Defendant seeks to have the inference drawn against Mr Smith - the plaintiff. The important consideration that is overlooked is that Mr Harris was a defendant to the proceedings brought by Mr Smith. How, then, could Mr Smith be expected to call Mr Harris as a witness? It is, to me at least, a novel proposition that a Jones v Dunkel inference may be drawn against one party who fails to call as a witness an opposing party. Even if it were feasible that Mr Smith might have taken advantage of Mr Harris' presence at the proceeding (had he been present), it could hardly be said that Mr Smith should have taken steps to secure his attendance.
Senior counsel for the Nominal Defendant urged that an inference be drawn that Mr Harris was evading service, and argued that insufficient efforts were made to find him. Either or both of these suggestions may be warranted, but neither assists the Nominal Defendant in its case against Mr Smith. There is no evidence of when Mr Smith (or his solicitors) first became aware that Mr Harris could not be found. At the commencement of the hearing on 8 December, counsel for Mr Harris informed the court that Mr Harris could not be found.
The primary, if not the sole, obligation to bring Mr Harris to court lay on his legal representatives. They had a greater interest even than Mr Smith in establishing the presence of the black vehicle. But the Nominal Defendant has not sought that any inference be drawn against Mr Harris.
I would reject this contention.

[26]

(iii) the existence of the unidentified vehicle

The central plank of the Nominal Defendant's argument was Ms Callister's evidence that she had not seen the black vehicle, and that she had a clear view of the road. From this, the Nominal Defendant seeks to have drawn the inference that there was no such vehicle.
I would not be prepared to draw any such inference. The finding of fact that there was a black car is not subject to any frailties of the kind spelled out in Fox v Percy. I do not consider that a finding to the contrary is one, within the meaning of s 75A(10) of the Supreme Court Act 1970 (NSW), which ought to have been made. That is sufficient to dispose of the appeal.
However, I would add that if it were relevant to re-determine the facts, I would come to the same conclusion as the primary judge.
The Nominal Defendant's argument ignores a number of salient factors. One is Mr Smith's description of the weather conditions. He said that it was "a terrible" day: "… it was wet, it was raining, it was muggy, it was dark, it was …"
At that point, he was cut off by the questioner. That it was dark was confirmed by Constable Charlton who said that visibility was poor. That is significant when it is borne in mind that the unidentified vehicle was said to have been black. It is readily understandable that Ms Callister may not, in such conditions, have seen a black vehicle travelling on the other side of the road to that on which she was travelling. That does not entail the conclusion that there was no black car. A second factor is that when Ms Callister first saw Mr Harris' car, it was already "fishtailing" - that is, the black vehicle (assuming its existence) had already cut in on Mr Harris. Again, it can readily be understood that the black vehicle had already passed when Ms Callister observed its effect on Mr Harris' vehicle. A third factor is that Ms Callister was (it may be inferred from her own evidence) concentrating on her driving, in the northbound lane, and not concerned with the southbound lane until her attention was drawn to it by the unusual movement of Mr Harris' car. A fourth factor is that events took place in a very short space of time (as Ms Callister said); the black vehicle (again, assuming its existence) would have rapidly disappeared from view. Finally, Ms Callister was considerably shaken by the experience. I have already extracted her evidence in this respect. Indeed, the Nominal Defendant relied upon the shock she experienced as an explanation for her failure to remember the impact.
The finding that there was a black car is supported by Mr Harris' statement, immediately after the accident, to Constable Charlton. That statement was entirely consistent with what Mr Smith said. I have not overlooked that the statement was not admitted as evidence of the truth of its contents, and I do not suggest it should be relied upon for that purpose. The statement was admitted as evidence of the fact that it was made. The fact that it was made, and was consistent with Mr Smith's account, is significant. It could hardly be suggested (and was not) that Mr Smith and Mr Harris had, in the immediate aftermath of a serious collision in which Mr Smith was severely injured, concocted a story about an unidentified black vehicle. Indeed, there is no reason to think that either of them had any appreciation of the benefit to either of them of concocting such a story. Nor was it suggested to Mr Smith that he had subsequently fabricated an account of the black motor vehicle, having familiarised himself with Mr Harris' statement to Constable Charlton. Mr Harris' statement stands, in my opinion, as powerful support for Mr Smith's account, and for the fact finding of the primary judge.
I would, accordingly, dismiss the Nominal Defendant's appeal.

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