(c) The evidence of the worker that a bus had swerved into her lane causing her to swerve and collide with Mr Pike's vehicle was an account contemporaneously made by the worker, firstly, to Mr Pike immediately following the accident (Black AB 93 C-F); secondly, within a short time after the accident on the morning of the accident to the police (Ex. G, Blue AB 24); and thirdly, in the worker's compensation claim form for "injury on the journey" (Ex. D, Blue AB 10) and the worker's compensation claim form (Ex. E, Blue AB 12). Her Honour did not refer to and, by implication, overlooked the contemporaneous accounts on the part of the worker as to the presence of the bus as the cause for the accident." [emphasis added]
28 What the trial judge actually said about Mr Pike's evidence was this: "he was prepared to concede when giving evidence that there was a bus, but it [was] 100 metres ahead at the time the accident happened and he confirmed his contemporaneous statement that he did not see a bus in the position as described by the worker at the time of the incident" (Red, 15S). The trial judge goes on to state that "I find it extraordinary that … Mr Pike would not have noticed the presence of a bus if it had manoeuvred to the extent evidenced by the worker. I find it would have come within metres of his vehicle" (Red, 15V). Undoubtedly this summation of his evidence suffered from compression. However, while first the statement by the trial judge omits the fact that Mr Pike had seen a bus back at Gladesville, a long distance from Ryde, that of itself was hardly of great weight given the number of Government buses likely to be around at that time.
29 Second, and more materially, the trial judge talks about the bus being "100 metres ahead at the time the accident happened". A more accurate statement of his evidence was that when the accident happened there followed this sequence of events preceding sight of the bus by Mr Pike:
(a) an initial period when he wondered what had happened, then
(b) appeared a realisation as to what had happened and a period to make sure that his car was safe and not going to cause problems for other traffic users, and
(c) an appreciation for what to do next in terms of driving away or not, and where to,
All of this happened in a matter of seconds so that accepting the car speeds were 50 km/h and the bus in excess of that, the bus could well have gone ahead by the estimated 100 metres and still have been alongside Ms Peterson's car at the time of the accident. Moreover, Mr Pike conceded that he just didn't know whether or not there was a bus beside Ms Peterson whilst Senior Constable Thorpe said that "just because he didn't see it doesn't mean it's not there".
30 To this, the respondent places great emphasis not only on other discrepancies in the account by Ms Peterson to which I will return, but in particular on the notion that Mr Pike would be unaware were a bus as to half its length to veer into the lane adjoining him in front of Ms Peterson, doing so sharply and at speed and so that the bus must have been within five metres of him.
31 One may derive from this that there was thus no "incontrovertible fact or uncontested testimony" demonstrating in clinching fashion error by the trial judge in her inference that Mr Pike must have been so aware, and that is so though it be the case that her conclusion on that score is itself not incontrovertible. It must be remembered that the onus lies upon the appellant to demonstrate the incontrovertibility in question.
32 This still leaves the possibility of contrary facts falling short of being "incontrovertible", but nonetheless cumulatively pointing to the trial judge's conclusion being "glaringly improbable" or "contrary to compelling inferences". The cases where contrary facts render the trial judge's conclusion "glaringly improbable" or "contrary to compelling inferences" tend to shade into what I would call the third possibility of appellate intervention. This relies on a cumulative failure, where it can be shown that overall, the trial judge failed to give sufficient attention to all of the evidence of the case and did not determine the appellant's case on the real strength that the body of evidence presented: State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq). To ascertain the strength of that contention made by the appellant it is necessary to consider the further matters to which I have earlier made reference, where the trial judge either rejected or doubted the credit of the worker.
33 I turn therefore to the next of these, namely the speed of the worker's vehicle and Mr Pike's vehicle at the time of the accident. The trial judge found that Mr Pike's evidence was that "the speed at which they were travelling was only 30 kph and not 50kph as alleged by the worker"; Red, 16C. He then said, "that I find to be more consistent with vehicles travelling through vicious curves" in the roadway and as alleged by the worker when giving evidence before the Commissioner; Red, 16D.
34 To the extent that the trial judge relied upon that combination of findings, the trial judge was, with respect, in error.
35 Thus Ms Peterson said that she was travelling between 50 kph and 60 kph approximately at the time of the accident (Black, 12V-W). Mr Pike said in his statement to the police on the day of the accident that the vehicles were travelling at 50 kph (Blue, 25). Moreover, Mr Pike accepted in his evidence, in cross-examination, that his statement to the police was more accurate than his recollection at the time of the hearing and that the speed of the cars was likely to have been 50 kph or thereabouts (Black, 93W-Y and 94F-G).
36 To this, the respondent attempted to argue that the error was not material to the trial judge's reasoning. However, it did underlie the trial judge's reference to the cause of the accident being vehicles travelling through "vicious curves" in the roadway, a description which finds no basis in the evidence whatsoever. Thus Mr Pike described the road as having "curves" and "a sort of two sort of s-bends" (Black, 87U and X-Y). Senior Constable Thorpe, having a familiarity with the road, described the curves as "moderate" and "not extremely sharp" (Black, 84H-J).
37 Indeed the presence of bends, albeit moderate, is consistent with the bus failing to negotiate the bends accurately and appearing to swerve from lane 3 into lane 2 when negotiating the bends, as indeed Ms Peterson's account at Black, 13E-G suggests, where she says "suddenly when we were negotiating the bend, [the bus] swerved into the centre lane".
38 There is no mention in the trial judge's reasoning of that possibility but rather an overstated reference to "vicious curves" as the reason for Ms Peterson, who had travelled the road for some 8 months, failing to negotiate those curves and thus having the accident.
39 Moreover, the trial judge was critical of Ms Peterson as regards that aspect of the evidence in the following passage:
"She was asked how long the curves had been present and she said they had been present prior to her accident but in her statement to police she had stated 'I came through the new section of the road which used to be straight but is now curved '. She could not satisfactorily explain what she meant. She denied that there were road works taking place at the time of her accident and nor would she accept that the roadway surface was quite rough at the time." (Red, 8U-W)
40 This criticism is not really fair. There was no evidence at all that the roadway surface was quite rough at the time nor evidence of repairs. What there had been was an earlier reconstruction so that the road which was originally straight had been changed with a new section with "s-bends", as corroborated by Senior Constable Thorpe (Black, 84B-G) and Mr Pike (Black, 87U-Y). The trial judge goes on to say "she would not concede that the roadworks created what was described as a 'vicious s-bend' " (Red, 9B). As I have already explained there is simply no evidence of there being then in place roadworks or any evidence of a "vicious s-bend". Her unwillingness to concede this, relied on against her by the trial judge, was wholly justified on her part.
41 Finally the trial judge states, evidently unfavourably, that "she would not accept that the accident was caused due to her unfamiliarity with the road at the time". As I earlier indicated, she had been driving on that road for 8 months so it was not to be expected that she would accept that the accident was so caused.
42 Finally, the trial judge described the evidence of Ms Peterson as to the location of the accident as unsatisfactory, upon the basis that the new section of road appeared to have recently undergone repairs and that Ms Peterson resiled from that description when giving evidence and denied that the road had undergone repairs (Red, 14U-V).
43 Again this was less than fair. The disinterested evidence of Senior Constable Thorpe corroborating Ms Peterson, was that the accident did not involve roadworks (Black, 86H-J).
44 I have earlier referred to the criticism that Ms Peterson had given more than one version as to how the accident occurred; see Red, 13T. In her evidence Ms Peterson said that the bus veered from the right hand lane into the centre lane causing her to swerve into the kerbside lane (Black, 13E-K, 14A-M, 15U-V and 16F). In a statement to the police (Blue, 25) Ms Peterson said that she swerved to the right to avoid the bus and collided with another vehicle that was in lane 1.
45 I agree with the appellant's submission that self-evidently, Ms Peterson in lane 2 could not have swerved to the right so as to collide with the vehicle driven by Mr Pike in lane 1. Indeed in her evidence (Black, 39R-T) Ms Peterson explained that this was a mistake and that she swerved to the left. Ms Peterson was never cross-examined to the effect that she swerved to the right or that there was no mistake. Rather Ms Peterson was cross-examined on the basis that she had swerved to the left (Black, 49G-J). The evidence of Mr Pike, that he was driving in lane 1 when Ms Peterson swerved from lane 2 into lane 1 resulting in the collision, corroborates Ms Peterson's evidence that she swerved to the left and that she had been mistaken when she described the direction as being to the right.
46 Thus I would not consider it fair to cite that confusion between left and right as materially undermining her account or constituting a different version of how the accident came about.
47 The final matter relates to the severity of the collision. The trial judge concluded that there was not a severe impact at the time of the collision and that Ms Peterson's evidence was unreliable when she said that she had been jolted as a result of the collision; Red, 16E-F. The evidence however was that both vehicles were travelling at about 50 km/h at the time of the collision. However, in answer to a question "when the vehicles came together, with what force did they come together", he replied "not a great deal of force, just a minor touch" (Black, 89O-P). He had earlier described the impact as "a minor crunch"; Red, 89L.
48 Mr Pike said the collision involved the front fenders of both vehicles and the front passenger door of Ms Peterson's vehicle (Black, 94R-U). Mr Pike said that after the cars collided they did become wedged together (Black, 94V-W).
49 The difference between Mr Pike's evidence and that of Ms Peterson could therefore be fairly described as simply differing impressions of events that occurred in a split second. Ms Peterson relied upon the severity of the collision as causing her to feel herself "jolted" at the time of the collision; Black, 17H. Again, I would not describe this difference in viewpoint between Mr Pike and Ms Peterson as undermining her assertion on that matter.
50 Summing up, there is evidence on the part of Ms Peterson which establishes
(a) The presence of the bus at the time of the incident and which swerved from lane 3 into Ms Peterson's lane, lane 2 (Black, 13E-G, 13K-L, 15A-B, 15H-I and 15K-L);
(b) The collision between Ms Peterson's vehicle and Mr Pike's vehicle caused by the driving of the bus (Black, 15U-V and 16D-H); and
(c) The contemporaneous account given by Ms Peterson to the police following the accident on the day of the accident that the bus veered into Ms Peterson's lane causing the accident (Blue, 25), her giving such account being corroborated by Senior Constable Thorpe (Black, 78P-R, and 79A-C).
51 There is evidence on the part of Mr Pike which corroborates the evidence of Ms Peterson as to:
(a) The presence of the bus proximate to the time of the accident (Black, 91Q-R, 91V-W and 92S-U).
(b) The presence of the bus in the right hand lane, lane 3 (Black, 90V-W, 91R-T, and 92S-V).
(c) That Ms Peterson veered to the left (Black, 89D-E, 95Q-T).
(d) A collision between the vehicle driven by Mr Pike and the vehicle driven by Ms Peterson (Black, 95T-W) albeit differing as to severity.
(e) The statement by Ms Peterson to Mr Pike immediately following the accident that the bus veered into Ms Peterson's lane from the right land lane (Black, 93C-D).
(f) The statement by Ms Peterson to Mr Pike immediately following the accident that the bus in veering into Ms Peterson's lane caused Ms Peterson to veer to the left so as to result in the accident (Black, 93 E-J).
52 That evidence, when weighed against matters relied upon in error by the trial judge in order to explain the accident by the erroneous reference to vicious curves and repairs in the road, to my mind do demonstrate that the trial judge either did not have regard to, or did not accurately have regard to, the evidence of Senior Constable Thorpe, Mr Pike and Ms Peterson. What remains is the emphatic weight placed by the trial judge on the fact that Mr Pike gave evidence that he had no awareness of the bus veering across, which the respondent pressed upon this court as being decisive excepting that there were these other errors. However, as against that supposed decisiveness is Senior Constable Thorpe's entirely plausible reaction to Mr Pike's version of events, namely that "just because he didn't see [the bus] doesn't mean it's not there". This was in circumstances where Mr Pike himself indicated that he was concentrating on his own lane, thus he just didn't know, because he wasn't looking as to the presence or otherwise of the bus; Black, 92V.
53 All that is then left if one removes the supposedly clinching matter of Mr Pike's unawareness of the bus is the trial judge's adverse view of Ms Peterson. That was by reason first of her failure to attend court though she appeared well enough in video evidence and well enough a week earlier to attend Sydney for a doctor's certificate, second, her exaggeration of her symptoms as determined after viewing the video evidence and, third, the other matters which were emphasised by the trial judge as affecting her credibility, summed up in the reference to vicious curves and the observation, unfair as I have said, that "the worker has given various versions of how the accident came about and the exact location". As to location, there was no discrepancy between the location of the accident at the intersection of Devlin Street and Victoria Road when completing the relevant claim forms, and Ms Peterson's evidence on commission; see the claim form (Blue, 11S-W) and the diagram on page 2 of that exhibit where the place of the accident is shown as after the intersection and to the west of it. Indeed Mr Pike put the accident in the same place.
54 In those circumstances, and where the trial judge did not have the advantage of observing the witness' demeanour, I consider that the trial judge, with respect, did fail to give sufficient attention to all of the evidence of the case and did not determine the appellant's case on the real strength of the body of evidence presented. That suffices in an exceptional case such as this for an appellate court to substitute its own conclusion, more especially as this is a conclusion essentially by way of inference from the circumstances and evidence presented.