Ross v Vaughan [2016] NSWCA 188 | Case summary

Ross v Vaughan [2016] NSWCA 188 | Case summary | Zoe

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of Simpson JA. I agree with her Honour's reasons and proposed orders.
SIMPSON JA: At about 3.30am on 11 September 2010 on Kanangra Drive, Summerland Point (on the Central Coast of NSW), a white Toyota Echo and a red Mazda sedan collided. Kanangra Drive is made up of a single lane in each direction (which, at the relevant point, was roughly east west), divided by double unbroken central lines. On the outer extremity of the bitumen of each lane is a white "guideline".
The collision took place on the approach to a bend in the road that follows a straight section. It was of the kind that is popularly known as "head on" (although the evidence suggests, and the primary judge found, that the impact was a "glancing" one, rather than full frontal impact). It follows that at least one of the vehicles was on the wrong side of the road. (I say at least one because it is conceivable in such a case that both were on the wrong side of the road - that was not posited as a possibility in this case.)
The Toyota was being driven in the westbound lane by the appellant, Daniel Mark Ross; the Mazda was being driven in the eastbound lane by the respondent, Mark Anthony Vaughan. Both the appellant and the respondent suffered injury as a result of the collision, and each commenced proceedings against the other in the District Court, claiming damages. Each alleged that it was the other who was driving on the wrong side of the road, and was, accordingly, negligent.
The claims came on for a joint hearing before Robison DCJ ("the primary judge") on 16 March 2015, and were completed within three days. Issues of liability and damages had been separated, and the only issue for determination was which of the two drivers was responsible for the collision. Both gave evidence; each gave a different account of the circumstances of the collision. The appellant called additional witnesses. Both parties tendered a number of photographs.
On 20 March 2015 the primary judge delivered judgment. He found that the collision occurred on the eastbound lane; he accepted the version of events given by the respondent, and, accordingly, that the appellant was negligent, gave judgment in favour of the respondent in his case, and judgment against the appellant in his case.
The appellant appeals against both orders. Arguably, his purported appeal against the judgment against him in the respondent's case is an appeal against an interlocutory judgment, for which leave is required: Supreme Court Act 1970 (NSW), s 101(2)(e). To the extent that leave is required, it should be granted.
The grounds of appeal are narrow. Essentially, they assert error in the conclusion that the collision occurred on the eastbound lane (meaning that it was the appellant who had crossed the dividing lines into the wrong lane); the appellant points to some specific evidence that, he claims, warranted the contrary finding (that is, that it was the respondent who had crossed to the wrong side of the road and was negligent).

[5]

The appellant

The appellant was 23 years of age at the time of the accident. He worked as a security patrol officer; his employment required him to drive to different businesses on the northern Central Coast and lower Lake Macquarie areas. He lived near Wyong.
On Friday, 10 September he commenced work at 8.30pm. He finished at 3.30am the following morning. He began to drive to his home near Wyong. That took him in a westerly direction on Kanangra Drive. He was familiar with the road, having grown up in the area and having worked in his then employment for about 12 months.
He reached a straight stretch of road, ahead of which was a right hand bend. As he approached the bend, he saw headlights "glowing in the shrubs (or scrub)". He saw the vehicle (to which the headlights belonged, and which may be taken to be the respondent's Mazda) begin to come around the corner. He said "the vehicle run the corner wide". By this he meant that it "crossed over the centrelines and approached the outer shoulder". He said that the vehicle "straightened down in my direction and the headlights were at me face on". It "appeared to try and swerve back onto the opposite side of the road". The appellant "applied the brakes and clutch", and put his "head down towards the passenger seat". He did this because he knew the two "vehicles were about to collide".
The vehicles did collide. The appellant felt a "forward shunt", and then lost consciousness.
He came to in the vehicle, and looked around, but was unable to see anything and found it difficult to breathe. He lost consciousness again, and came to again, still in the vehicle. He was experiencing pain and pressure in his legs. He began to panic and call out for help, which was not forthcoming. He unbuckled his seat belt and opened the driver's door. He fell face down onto the bitumen. His next memory was of again coming to, and being told by a male stranger that police and an ambulance had been called. His parents arrived and he was taken to hospital by ambulance. He remained in hospital for five nights. Initially, he had no recollection of what had happened. After the second night he began to have "short flashbacks". There was an objection to the use of the word "flashbacks" and the appellant then gave evidence of his returning memories of the collision. He said that he could remember applying the brakes and clutch and looking down to the left, the lights shining in the scrub on the corner, and coming out of the S-shaped corner leading onto the straight stretch of road.
It was common ground that the Toyota came to rest wholly in the westbound lane, facing west.

[7]

The evidence of other witnesses

Mr Ruben Stemphelet was the first person to arrive on the scene of the collision after it occurred. He was travelling west, the same direction as the appellant. He saw the white Toyota, in the middle of the road. He stopped his car and approached the Toyota. He saw a person (the appellant) lying on the road; the driver's side door was open. The Toyota was wholly in the westbound lane, a little distance from the centre lines. He observed debris next to and in front of the Toyota.
Evidence was given by three members of the Ross family - the appellant's mother (Michelle), his father (Mark) and his brother (Joel). They gave evidence of two important matters. One was the location of debris resulting from the collision. The other was evidence of skid marks. Their evidence was consistent. Michelle Ross said that there was an amount of debris within three metres in front of the Toyota, on his side of the road; she could not recall any debris in the eastbound lane. Joel Ross said that there was a lot of debris in front of the Toyota, still in his lane. Mark Ross said that there was debris in front of the Toyota, and that Mr Ross was lying in a bit of debris like glass and fluid and so on.
As to skid marks, Michelle Ross said that she saw two skid marks, both on the westbound lane at the back of the appellant's car. One was on an angle, and a bit fainter. The other was approximately 1½ to 2 metres long, was straight, was darker, and was leading towards the back of the Toyota, but finished about three or four feet prior to the back of the Toyota. She observed police officers taking photographs and measurements of the skid marks. Joel Ross saw "a prominent set of skid marks" behind the Toyota; they were "very clear, two skid marks, so a set". They were about a metre and half in length, and leading up to the back of the Toyota, and stopped approximately a metre behind. Mark Ross gave evidence to the same effect.
Also in evidence were a number of photographs. Exhibit 17 was photographs taken by the respondent's son on 12 September 2010, the day after the collision. The photographs are not captioned to identify compass points, and the oral evidence about them is difficult to follow. One thing of importance, however, is that, in the lane which was identified (in the appeal) as the westbound lane, are a number of noticeable skid marks. (As senior counsel for the respondent pointed out, they may not be entirely consistent with the description of the skid marks observed by the Ross family. Moreover, it appears that there may be marks on the road from more than one vehicle.)
Exhibit B is a series of photographs, taken of the relevant part of the road, facing an easterly direction (that is, the direction in which the respondent was travelling). These photographs are of no assistance in relation to skid marks, because they were taken long after the event. They do, however, depict the road in the direction that the respondent was travelling. Exhibit C is another series of photographs, this time showing the road facing a westerly direction, that is the direction in which the appellant was travelling. They are no more helpful than the photographs in Exhibit B.
There are also photographs of the vehicles following the collision. As mentioned above, it was common ground that the Toyota, when it came to rest, was wholly within the westbound lane, that is, its correct side of the road.
Exhibits 8, 9, 12, 13 and 14 are all photographs of the Mazda. They confirm the respondent's evidence that his vehicle came to rest on the shoulder of the road, to the far left of the eastbound lane, and outside the white guideline, but facing in the easterly direction in which it had been travelling.
There was tendered, in the respondent's case, medical records of the appellant's consultation with a general practitioner (Dr Lim) on 21 September 2010, that is, 10 days after the accident. The relevant part of that record reads: "had whiplash has amnesia - 40 mins retrograde anterograde - to hospital remembers the hospital"

[8]

The respective cases at trial

The case made on behalf of the respondent at trial was that the appellant fell asleep at the wheel. This was no more than a hypothesis, based, it seems, on two aspects of the evidence. The first was a note in a report made by paramedics who attended to the appellant. The note records the collision, and the treatment given to the appellant. There then appears the following: "? Pt [patient] fell asleep at wheel." There is no indication in the note of the source of this, which can, having regard especially to the question mark, be regarded as no more than speculation, or, at best, theory. The appellant was cross-examined, extensively, about the paramedics' report, but said, repeatedly, that he had no recollection of paramedics, or of any conversation with them. That cross-examination should be recounted: "Q. And what you said to the police officer was that you looked down and you then remember waking up. A. After the impact, yes."
It was suggested that this was an acknowledgment that the appellant had, prior to the collision, been asleep.
In his final address, senior counsel for the respondent acknowledged that the observation was "perhaps … outside the ambulance officers' remit" but nevertheless twice invited his Honour to have regard to it.
The second basis for the respondent's hypothesis was drawn from an interview the appellant had with police on 18 October, five weeks after the collision. No record of the interview was in evidence; evidence of what was said was elicited from the appellant in cross-examination.
The case made on behalf of the appellant depended principally on three aspects of the evidence. The first was the evidence, given by all members of his family, of skid marks at the scene, and almost immediately at the back of the Toyota. The second was the final resting places of the two vehicles, the Toyota wholly within the westbound (that is, its correct) lane, facing west, although (his Honour found) at a slight angle. (The Mazda was also facing the direction in which it had been travelling (east), but was well off the bitumen surface of the road and on the gravel shoulder. There was a gouge mark on the bitumen.)
The third aspect of the evidence on which the appellant relied was the location of debris from the vehicles.

[9]

The primary judgment

The primary judge considered the case to be one of the most difficult he had had to decide. This was because of the competing (and conflicting) versions given by each of the parties. He placed some store on the medical record of Dr Lim, and particularly the distinction between the use of the past tense ("had whiplash") and the present tense ("has amnesia"). He appears to have taken this to mean that, as at the time of consultation with Dr Lim, the appellant continued to be amnesic.
After a painstaking review of the evidence, the primary judge accepted the case made on behalf of the respondent. There appear to have been a number of factors that led him to this conclusion. He noted that the paramedics who attended the respondent recorded, in their report, that he had "total recall" of the accident and denied any loss of consciousness, whereas the appellant suffered amnesia for some days, although he claimed, at the time of giving evidence, that his memory had returned. Quite what his Honour made of the paramedics' note is difficult to determine. He did say, on two separate occasions, that memory "looms large" with respect to the appellant's evidence. He considered it necessary to exercise caution in the assessment of the reliability of the appellant's evidence.
By contrast, the primary judge described the respondent's evidence as "clear, concise and accurate". He considered the respondent's evidence to be more reliable than that of the appellant. Towards the end of the judgment, he "remind[ed] himself of the force and effect" of the respondent's evidence.
He considered, in more than one place in the judgment, the evidence of skid marks; each time he did so, he effectively discarded that evidence on the basis that the skid marks had not been shown to have been created by the Toyota.
He noted (in general terms) the question that had been raised concerning the respondent's credibility, but considered that "very little turns on that", and that there was "other evidence" that tended to support the respondent's evidence. (He did not specify the questions about the respondent's credibility, or identify the "other evidence" on which he relied.)
He concluded his judgment by apparently accepting that the appellant had fallen asleep or "dozed off, or lacked sufficient concentration that would have equipped him to keep within his side of the road", but added: "If I am wrong in all of that, in any event, it is clear to me, when one steps back and looks at the objective evidence and the evidence from each of the participants in all of this, that for some reason or another the vehicle driven by [the appellant] made its way over to the incorrect side of the road, thereby causing the collision. As to the dynamics of the accident as described by [the respondent], it is entirely possible, given the mechanics of the accident, for the Echo driven by [the appellant] to have bounced back or to have been propelled back to the location as depicted in the photographic evidence. This is in the context of the momentum of the respective vehicles and I agree that it is indeed more probable that after the impact each vehicle travelled to positions where they each eventually came to rest." He concluded that it was more probable than not that the collision involved "a glancing impact rather than a full frontal impact".

[10]

The appeal

The challenge to the decision is wholly factual.
The position taken on behalf of the respondent was essentially that this Court should not interfere with findings of fact made by the primary judge. Oblique reference was made to the majority judgment in Fox v Percy [2003] HCA 22; 214 CLR 118; senior counsel concluded his oral submissions with: "… the ultimate submission which we make is that the trial judge's findings are based on credit. He did describe [the respondent's] evidence in comparison with the plaintiff and his witnesses as clear, concise and accurate … And he dealt with the element of accuracy and reliability … and he accepted the proposition that, upon impact, the Toyota did bounce back in the way described by [the respondent] …"
Two responses may be made to this. First, I do not read the observations of the primary judge to incorporate "credit" findings, if by that is meant that the respondent was a more honest witness than the appellant. The primary judge's finding that the respondent's evidence was more "reliable", was, when properly read, a finding that the respondent's oral evidence accorded, in the view of his Honour, more neatly with other evidence in the trial, such as evidence of the location of the debris, and the final positions of the vehicles on the road. The primary judge expressly noted that neither party had been attacked as dishonest. The reliability finding was, in my opinion, no more than a finding that the respondent's evidence fitted with the view the primary judge otherwise came to.
Second, and because the preference for the respondent's evidence was not demeanour based, there is no impediment of the kind stated in Fox v Percy to this Court proceeding to make its own judgment on the facts, something it is required, by s 75A of the Supreme Court Act, to do.
Fox v Percy is not authority for the proposition that it is only when conclusions have been drawn contrary to incontrovertible facts or uncontested testimony, or that a conclusion is "glaringly improbable or contrary to compelling inferences" that this Court can intervene. Those possibilities were cited as instances that would warrant appellate intervention. However, the import of the joint judgment is clear: where, as here, the appeal is by way of rehearing, "a judgment of the appellate court is required both on the facts and the law" (at [29]). That judgment of course must make "due allowances for the advantage available to the trial judge", but the appeal court "must not shrink from giving effect to its own conclusion".
In any event, I am satisfied that there are indications of error in the primary judgment. One example is the reference to the report of the paramedics, that queried whether the appellant had fallen asleep. It is not clear what, if any, bearing that had on the outcome. It could not, properly, have had any: Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352. Leaving aside that note, there was no evidence on which to base the conclusion that the appellant had fallen asleep. The respondent's reliance upon the appellant's answer to a question in the police interview, that, after the impact he "woke up" was misplaced. The answer is equally consistent with the appellant having recovered consciousness after a temporary loss of consciousness. That means that the conclusion that the appellant "fell asleep, or dozed off, or lost concentration" is unsupportable on the evidence.
Further, the primary judge, in my opinion, too readily discarded the evidence of skid marks. He did not analyse the evidence of members of the appellant's family in order to determine whether any inferences about the cause of the skid marks on the road could or should be drawn. Nor did he analyse the evidence concerning the location of the debris.
Reliance on the variation of tenses ("had whiplash", "has amnesia") is also dubious. Dr Lim was not called to give evidence. The respondent denied telling Dr Lim that he had (at the time of the consultation) no memory of the accident; he said that he told Dr Lim that initially he had had no recollection of the accident, but that his memory had recovered.
The consequence of these conclusions is that this Court must proceed, under ss 75A(6) and (10) of the Supreme Court Act to make its own determination. That means it is necessary more closely to examine the evidence.

[11]

Skid marks

As mentioned above, contemporaneous evidence of skid marks behind the appellant's Toyota was given by all members of his family. Unsurprisingly, in the circumstances there were differences in what the witnesses observed and described. These differences were slight. Michelle Ross said that there were two skid marks, on the appellant's side of the road, "at the back of his car". When asked where they started and finished, she said: "I seen two marks. One was on an angle, it was a bit fainter. The other one was approximately 1 and 1½ to 2m long. It was straight, and it was darker, and it was leading towards the back of [the appellant's] car, but it finished I'd say 3 to 4 foot prior to [the appellant's] car - the back of [the appellant's] car."
Joel Ross gave the following evidence: "Q. Did you observe any skid marks? A. Yes. Q. What did you observe? A. I had seen two - a prominent set of skid marks behind [the appellant's] vehicle. Q. What do you mean prominent? A. Very clear, two skid marks, so a set. Q. Where did you see them going from and to? A. They were about a metre and a half in length, they were leading up to the back of [the appellant's] car which stopped approximately a metre behind."
Mark Ross gave the following evidence: "Q. When you say 'the skid marks', what do you mean about that? A. Well, there is two skid marks on [the appellant's] side of the road and that's what they were measuring and taking photos of. Q. Where were they in relation to [the appellant's] car? A. Roughly a metre, metre and a half from the back of his car on his side of the road, probably not far off the centre line. Q. How long were they? A. Roughly a metre, metre and a half. Q. Did they lead right up [the appellant's] car? A. About a foot; about a metre; three foot from the back of the car."
Photographs taken two days later by the respondent's son confirm that there were skid marks on the westbound lane. Senior counsel for the appellant disclaimed significant reliance upon these photographs because they had not been shown to the Ross family witnesses, and had not, therefore, been identified as the skid marks they had observed. The disclaimer was fairly made, and I disregard the photographic evidence of skid marks on the road. That does not, however, affect the potency of the evidence of all members of the Ross family. The skid marks they described are consistent with the appellant's evidence that, when he saw the respondent's vehicle approaching him, and saw it cross the centre line and approach the shoulder, before apparently attempting to swerve back to the opposite side of the road, he then applied the brakes and the clutch, and that after the vehicles collided, he felt "a forward shunt". The forward shunt explains the skid marks stopping a metre or so before the car.
It is, in my judgment, a reasonable inference that the skid marks observed by all members of the Ross family were caused by his sudden application of the brakes of the Toyota.

[13]

Where the vehicles came to rest

The appellant's vehicle was wholly in its correct lane. The respondent's vehicle was off the roadway, and the shoulder, but facing east. The position of the vehicles, in particular the Mazda, is consistent with the appellant's evidence that the driver of the Mazda appeared to recognise what was happening, and veered towards the left. It is also consistent with the respondent's evidence that, when he saw the approaching Toyota, he swerved sharply to the left and onto the shoulder. However, if the impact took place in the eastbound lane, after the respondent had taken that evasive action, it is highly likely that there would have been debris in that location, and none on the westbound lane.
In my opinion, a conclusion that the Toyota, after impact, "bounced back" to the westbound lane, facing west, is unsustainable.
For these reasons, I have come to the view that it is more probable than not that the collision took place on the western side of the road, when the respondent's vehicle crossed the centre dividing lines.
I propose the following orders: In District Court proceedings No 2012/192903 (Daniel Mark Ross v Mark Anthony Vaughan): (1) Allow the appeal, set aside the verdict and judgment for the defendant (Mark Anthony Vaughan) and the order that the plaintiff pay the costs of the proceedings; (2) Order that there be judgment for the plaintiff (Daniel Mark Ross); (3) Remit the proceedings to the District Court for assessment of damages; (4) Order that the respondent pay the costs of the appeal, and of the proceedings in the District Court; (5) Order that, if otherwise entitled, the respondent have a certificate under the Suitors' Fund Act 1951 (NSW). In District Court proceedings No 2013/145816 (Mark Anthony Vaughan v Daniel Mark Ross): (1) Set aside the verdict for the plaintiff on the issue of liability; (2) Order that there be judgment for the defendant (Daniel Mark Ross); (3) Order that the plaintiff (Mark Anthony Vaughan) pay the defendant's costs of the proceedings in the District Court and of the appeal.
HARRISON J: I agree with Simpson JA.

Ross v Vaughan

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (2)

Cited By (1)