He then held that the plaintiff's injury was caused by the negligence of the defendant through his agent and assessed contributory negligence at 25%: Judgment, p 15.
146 Assuming, as must be the case, that the findings of intention to injure were deliberately made, a question arises as to whether a defence of contributory negligence arose at all. The answer to that question depends upon the common law, which is generally applicable, as modified by statute: see Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 8; the 1999 Act, s 138(1); Civil Liability Act, ss 5R and 5S. Those provisions of the Civil Liability Act will not, however, apply with respect to an intentional tort: s 3B(1)(a). In New South Wales v Lepore [2003] HCA 4; 212 CLR 511 at [270], Gummow and Hayne JJ noted that "negligently inflicted injury to the person can, in at least some circumstances, be pleaded as trespass to the person, but the intentional infliction of harm cannot be pleaded as negligence". The precise scope of that statement may require elucidation: see Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) Aust Torts Reports ¶81-928 at [367].
147 Whether a defence of contributory negligence is available in relation to an intentional tort intended to cause injury is at best doubtful: see State of New South Wales v Riley [2003] NSWCA 208; 47 NSWLR 496 at [104] (Hodgson JA, Sheller JA and Nicholas J agreeing); Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 at [121]-[128].
148 It is not necessary to conclude that the approach taken by the trial judge was wrong; it is sufficient to note that an issue with respect to the availability of contributory negligence will arise again at the retrial, if the conduct of Mr Nagra is held to give rise to liability and is held to have involved the intentional infliction of injury. That may properly be characterised as involving at least one complex legal issue.
149 A second defence relied upon by the defendant was the statutory form of self-defence to be found in s 52 of the Civil Liability Act. That section relevantly provides:
" 52 No civil liability for acts in self-defence
(1) A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding:
(a) was unlawful ….
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a) to defend himself …, or
…
(c) to protect property from unlawful taking, destruction, damage or interference, …
and the conduct is a reasonable response in the circumstances as he or she perceives them."
150 The "person" whose conduct and state of mind is relevant for present purposes must be the driver of the taxi, Mr Nagra. If Mr Nagra is not liable by reason of the operation of s 52(1), the defendant, arguably, would not be liable by reason of s 3C of the Civil Liability Act.
151 Subsection 52(2) provides a definition of conduct carried out in self-defence. It involves two limbs: first, a subjective belief of the person that the conduct is necessary for one of the prescribed reasons and, secondly, a partly objective assessment of whether the conduct is a reasonable response in the circumstances, as perceived by the person carrying out the conduct. (There is a danger in labelling the second limb as objective, because it depends upon the subjective perceptions of the person involved in the conduct.)
152 The trial judge, in applying s 52(2), stated at pp 12-13:
"It would be a prerequisite for Mr Nagra to establish, pursuant to s 52(2), that he believed his conduct was necessary. He gives no evidence in acceptance of that conduct to deal with what his perceptions were and as I have indicated I reject much of his evidence. Ultimately he said that when he reversed the vehicle, the plaintiff was not to be seen. That I do not accept. Accordingly, as s 52 only operates to exculpate a defendant if the conduct is a reasonable response in the circumstances that he perceives them, I do not accept that Mr Nagra's driving, as I have found, was a reasonable response to the situation as it has arisen and I accordingly find that s 52(2) has no [application] in the context of this case."
153 On the appeal, the defendant challenged the approach adopted by the trial judge in this passage on the basis that he was not precluded from relying upon the defence because Mr Nagra did not give relevant evidence as to his own perceptions. Reference was made to the judgment in Derek Denton Bonnick (1977) 66 Cr App Rep 266, in which the UK Court of Appeal held that, on a charge of unlawful wounding, where the defence was an alibi, self-defence should have been left to the jury if there were evidence sufficient to raise the issue: see also The Queen v Howe [1958] HCA 38; 100 CLR 448. However, care must be taken in applying criminal analogies; self-defence, despite its name, must be negatived by the prosecution in order to obtain a conviction. The principle remains good that a subjective state of mind may be inferred from circumstances other than the person's own statement as to his perceptions. In the present case, although Mr Nagra acted in a manner which was inconsistent with a belief that the conduct was necessary in self-defence, his unequivocal evidence was that he was in fear, possibly of his life, at the time. As Tobias JA has demonstrated in detail, Mr Nagra appears to have prevaricated and lied, no doubt out of perceived self-interest, but with little appreciation of what was inculpatory and what exculpatory.
154 In the passage set out above, his Honour erred in suggesting that it was a "prerequisite" for Mr Nagra to establish any matter: Mr Nagra was not a party to the proceedings. What his Honour appears to have meant was that the only way in which he could be satisfied as to Mr Nagra's perceptions was if Mr Nagra gave evidence of them which was accepted. As a practical matter, that will often be true, but it is not necessarily so. As Tobias JA has explained, there are difficulties implicit in findings that Mr Nagra's evidence could not be accepted at all, or only where corroborated, without there being any serious attempt to identify those parts which were true and those which were not.
155 There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases.
156 Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44].
157 There are other curiosities in the approach adopted by the trial judge on the second hearing. For example, in purporting to set out the terms of various provisions of the Civil Liability Act, including s 52, he in fact paraphrased the provisions in a manner which was erroneous in significant respects: Judgment, p 13. The application of s 52 is likely to arise and to involve complex legal issues.
158 Reliance was also placed by the defendant on s 53 of the Civil Liability Act which would preclude recovery even were the conduct not a reasonable response in the circumstances, unless the Court were satisfied that the circumstances were exceptional and a failure to award damages would be harsh and unjust: s 53(1). The application of this provision, which could well arise depending on the findings of fact, may itself involve novel and complex legal issues.
159 Finally, the defendant relied upon s 54 of the Civil Liability Act which precludes a court awarding damages in respect of liability if satisfied that the injury occurred "at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence", which conduct materially contributed to the injury or risk of injury. However, the defence is not available if the conduct of the defendant constituted an offence: s 54(2). Again, the application of these provisions may give rise to complex legal issues.
160 For these reasons, in addition to those given by Tobias JA, I agree with the orders proposed by his Honour.
161 HANDLEY AJA: I agree with Tobias JA and with the additional reasons of Basten JA.
**********