The state of ambient light (Grounds 3 & 4)
25The trial judge regarded the state of ambient light as being the central and most important issue. It is convenient to commence a consideration of the factual grounds with those which challenge this finding.
26It is always difficult to be precise about any description of darkness during the evening twilight period: darkness is relative. There was no issue that the accident occurred shortly before 5.42pm. That was the time when the first call to the ambulance service was logged. The evidence showed that the sun had set more than half an hour before, at 5.02pm. His Honour found that civil twilight had occurred at 5.29pm. He accepted that the defendant had his headlights on. The only issue in dispute on that matter was whether the headlights were on low-beam or high-beam. His Honour found that they were on low-beam: there was no challenge to that finding.
27On this critical factual issue, the whole of the trial judge's reasoning was as follows:
"70. The collision between the plaintiff's motorcycle and the defendant's car occurred sometime after 5:30pm, more probably than [not] at about 5.42pm. The evidence was that the call to the ambulance service was logged at that time. The sun had set more than half an hour before, at 5.02pm. Civil twilight had occurred at 5.29pm and it was either dark conditions or getting dark.
71. The state of darkness was described by the various witnesses, some of which evidence I have referred to above. In the plaintiff's favour was the evidence of Miss Wass that she could only see about 50 metres ahead. All the other evidence, however, suggests that it was particularly dark, such that visibility was quite limited. Mr Sayers, for example, did not even see the motorcycle before the collision, and had trouble locating the puddle he had stepped in.
72. The defendant said he never saw the plaintiff or his motorcycle.
73. More importantly, however, was the evidence of Miss Wass that she did not pick the motorcycle up until it was 5-6 metres away, and of Ms Monley that she was only able to locate the motorcycle when it was practically upon them.
74. I am therefore satisfied that, irrespective of the clothing the plaintiff might have been wearing and having regard to the speed at which the plaintiff was travelling, he and his motorcycle were not visible to the defendant prior to making the turn into Emora Avenue."
28Paragraph [70] was uncontroversial, so far as it went, although the closing words "either dark conditions or getting dark" merely restate the issue. The paragraph did not refer to the unchallenged evidence that on the day of the accident, nautical twilight occurred at 5.59pm, (about 20 minutes after the collision) at which time it was "dark for normal practical purposes".
29Each of the remaining paragraphs discloses error. There was probative evidence inconsistent with his findings to which the trial judge did not refer, and the judge both misstated and failed to reconcile the evidence on which he relied.
30First, as to [71], the ambulance paramedic (Mr Christopher Jones) who attended at the scene at around 5.54pm described light conditions as "dusk" and said that he could see houses and vehicles from across the street without the aid of artificial light. We would understand his reference to artificial light as being a term used to describe light introduced to the scene which was not normally there, such as vehicle headlights, to which he referred as being on as he left the scene. Mr Jones estimated 15 to 20 metres as the distance that could be seen when he arrived at the scene, which was over 10 minutes after the accident had occurred. During that period, the light would have been fading from civil to nautical twilight. Certainly, the light conditions were no worse at the time of the collision than when he arrived some short time later.
31It cannot be doubted that the principal interest of Mr Jones was the treatment of the plaintiff, which would have engaged his close attention, and which may be a reason to treat his evidence carefully, but such consideration did not permit the trial judge to ignore it.
32Secondly, the police officer, Constable James Kennedy, described conditions as "daylight going on dusk" when he arrived at the scene. Although the manner in which Constable Kennedy expressed that opinion was open to the criticism that he had reasoned his way to such a conclusion, rather than having an actual recollection of the ambient light conditions, he was not challenged on that evidence in cross-examination. In those circumstances, his evidence could not properly be ignored.
33As well, although both men would have attended many accidents, their evidence might nevertheless be thought to be probative, because they were independent and trained to deal with traumatic incidents. In contrast, it was clear that the recollections of the plaintiff and the defendant were faulty, probably because of the traumatic nature of the accident and their injuries.
34Further, the plaintiff's mother, Ms Sexton, gave evidence that it was "still light" when her son left home, which she said was a few minutes before the collision. The plaintiff himself said that he saw the defendant's car when it was "10, 15, 20 metres" away, that it was dusk and that he could be seen.
35It was therefore wrong for his Honour to say that "All the other evidence, however, suggests that it was particularly dark, such that visibility was quite limited." The evidence of Mr Jones and Constable Kennedy was to the contrary, and prima facie, probative; his Honour appears, so far as the dispositive portion of his reasons discloses, to have failed to have regard to this evidence. The evidence of the plaintiff's mother was also to the contrary, and likewise inconsistent with his Honour's statement about the effect of the other evidence.
36It was of course open to the trial judge to discount the evidence of those witnesses (particularly, that of the plaintiff and his mother), although, in the circumstances of the factual contest at this trial, it was desirable, to say the least, for his Honour to have done so expressly, given the importance of the issue.
37Next, his Honour placed reliance on Mr Sayers not seeing the motorcycle before the collision. But Mr Sayers and his son were jogging along Emora Avenue, and Mr Sayers said they were paying attention to the defendant's car. Moreover, although Mr Sayers did say (in chief) that it "was a really dark night", such that he could not see the puddle, in cross-examination he gave evidence that:
"Q. [T]he lighting was okay at the time that you were in Emora Street, but of course it deteriorated later while you were waiting around at the scene following his accident.
A. Yeah, it would have got darker and darker.
Q. ... Whatever the state of the lighting, it certainly got darker and darker after the accident, didn't it?
A. That's for sure.
Q. And what I'm suggesting to you is that you were able to see sufficiently to let you run at fast pace on back roads, and that you wouldn't have done that had you not had reasonable vision, would you?
A. Definitely not if it was pitch black.
...
Q. And you were prepared to allow your inexperienced son with a disability to run along where there were indentations and variations in the surface as you were going along Emora Avenue?
A. Yeah.
Q. Because you each could see what you were doing at the time. That's right?
A. Along Emora Avenue, we could see enough in front of us to be able to run, yeah.
Q. Because even if it was dark, so that your vision was obscured, there's no way you'd have let your son run in that way, is there?
A. I probably wouldn't have ran if it was that black, dark I couldn't see where I was going to put my feet anyway myself. Yeah."
38There is no mention made by the trial judge of the extent to which Mr Sayer's evidence was qualified by cross-examination, and was explained by his circumstances (which were focussing on the vehicle about to turn into the street on the side of which he was running). Finally, limited weight can be attached to Mr Sayers' difficulties in relocating the puddle in which he trod, to which he and the defendant took the plaintiff after the accident, because the ambient light was undoubtedly fading.
39Secondly, in relation to [72], the fact that the defendant did not see the plaintiff is, with respect, not probative on the issue of ambient light conditions and visibility. The question for determination is whether his failure to see the plaintiff was because of his negligence or, alternatively, because of other circumstances which meant that a non-negligent driver would have failed to do so. It is circular to reason from the defendant's undoubted failure to see the plaintiff prior to the collision to the conclusion that it was too dark to see, thereby excluding the possibility that the defendant was failing to pay proper attention to the road.
40Thirdly, [73] demonstrates that the trial judge placed greatest reliance on the evidence of Ms Wass and Ms Monley. It was open to him to do so, although it was desirable to have addressed all of the independent evidence. But to the extent that he based his finding upon the evidence of Ms Wass, it was necessary to address the inconsistency in her evidence (as appears from [71]) that she could see some 50 metres ahead. Ms Wass said she was able to distinguish between the visibility conditions prevailing when the accident took place and when she left the scene between 30 and 45 minutes later:
"Q. Did you notice whether the light was the same by the time the police had arrived as when you were walking or had it changed in some way from when you were finishing your walk?
A. It was completely dark by the time I left.
Q. How would you describe the light at the time you were walking?
A. It was dusk.
Q. Are you able to tell us, by reference to your looking up the street, how far you could see up the street?
A. Probably only 50 metres. I'm not sure on the distance. It's very hard to say."
41That evidence is strikingly different from the evidence referred to in [73]. His Honour was seemingly conscious of the conflict, but failed to resolve it. One obvious resolution is that Ms Wass could see 50 metres into the distance, but in circumstances where she was walking with a dog and chatting to her friend while walking on the side of the street, she did not in fact look out to see the plaintiff's motorcycle until it was five metres away from her. If so, the fact that two pedestrians in conversation did not see the plaintiff until he was almost upon them says little about whether a driver intending to turn right was negligent in failing to see him. Similar reasoning could explain Ms Monley's evidence that she saw the motorcycle "only when it was probably about 2 to 3 metres away". There may be other reconciliations of the conflict in their evidence, but if so, the trial judge, who was much better placed than this Court to evaluate it, failed to do so expressly.
42Fourthly, in [74] the trial judge made a finding that whether or not the plaintiff was wearing a fluorescent shirt did not matter. That reasoning is troubling. It does not seem to be well-founded in the evidence. The trial was run on the basis that it mattered very greatly whether the plaintiff, who chose to ride a motorcycle on a road without headlight or helmet, was or was not wearing a high visibility shirt. If the ambient light conditions were such that it did not matter whether his torso was covered in a high visibility shirt which was reflective, or at least readily visible, then at the very least, this required persuasive reasoning to justify setting aside the relevance of the issue. The reasons do not include such reasoning.
43The applicable principles are not in dispute. This Court is required to conduct a "real review" of the trial. "Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect": Fox v Percy [2003] HCA 22; 214 CLR 118 at [25]. In considering the adequacy of the reasons of the trial judge, the reasons which are actually stated are to be understood, on appeal, as recording the steps that were in fact taken by the trial judge in arriving at the end result: Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [130] (Hayne J). It is necessary to " ... engage with, or grapple or wrestle with, the cases presented by each party": Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116], MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417 at [134], Coote v Kelly [2013] NSWCA 357 at [39]. As the opening paragraph of the joint reasons of Mason P, Ipp and Tobias JJA in Whalan v Kogarah Municipal Council [2007] NSWCA 5 records:
"[J]udges' duties to give reasons are ... designed to ensure that a judge wrestles adequately with the issues in the case, to enable appellate accountability and to provide basic fairness to the losing party."
44The subsequent decisions were recently reviewed by Gleeson JA in Keith v Gal [2013] NSWCA 339 at [109]-[119]. It suffices to recall the statement by McColl JA in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66]:
"Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried."
45The reasons disclose that this judgment falls into the description given by McColl JA. The issue of ambient lighting and visibility was the critical issue in a nine day trial. The plaintiff is entitled to be told why the evidence of Mr Jones and Constable Kennedy and of his mother (and indeed his own evidence) was rejected. That is to say, most of the testimonial evidence which favoured his case was not mentioned in the dispositive paragraphs of the trial judge's reasons. Further, the plaintiff is entitled to be told why that part of Ms Wass' evidence which favoured him was rejected for that part which told against him. And the plaintiff is entitled to a sense of grievance to the extent that the defendant's own evidence that it was too dark to see him influenced the outcome.
46It follows that grounds 3 and 4 should be upheld. However, the conclusion that the fact-finding process miscarried is strengthened by the way in which the remaining two issues were resolved.