The case is not directly in point, because it was a patent case concerning a hayrake. The issue was anticipation and as Lord Reid had said:
The question was what the eye of the man with appropriate engineering skills and experience would see.
72 Nonetheless, the passage gives guidance on a wider basis. Certainly Meagher JA so considered when in Short v Barrett (CA, unreported, 5 October 1990) he made reference to part of the passage in dealing with the use made by a trial Judge of photographs in an occupier's liability case.
73 In my view the use of other components in a photograph or series of photographs to identify objects in a photograph is an appropriate procedure. Upon occasion it may be a matter of common sense. In a case involving machinery parts, as here, it would normally require an expert to make the identification.
74 Mr Senz relied in part upon a diagram, which is exhibited, of a HAS series Hendrickson suspension whereas the vehicle was fitted with a HA series suspension. No significant difference was suggested other than that the rose joint was of a different type, a circumstance which it was conceded on the hearing before this Court was of no importance.
75 Mr Senz also relied in part upon his observations of trucks and their suspensions as he drove about his affairs. It was put that such observation was not a proper basis for an expert opinion as to which type of extension rod was fitted to the prime mover. As I have mentioned this issue was in the end of no significance. In any event I consider that appropriate observation by a suitably qualified person may well properly found the expression of an expert opinion.
76 The written submissions contain a general assertion that "the evidence offends numerous prerequisites of the law relating to admissibility as stated in Makita...…… Her Honour erred in accepting the evidence of Mr Senz......upon the basis that he did not satisfy the requirements to enable him to proffer an expert opinion".
77 I have dealt with the specific matters raised in the submissions both written and oral. As to this assertion I am content to make the general observation that I have read the passages of transcript relied upon and do not accept that Judge Gibb erred in accepting Mr Senz's evidence as that of an expert. She found, as on the evidence she was entitled to do, that Mr Senz had "relevantly expert opinion within the field of specialised knowledge constituted in training, study and experience".
78 It is convenient to deal with grounds 7 and 8 together. In the written submissions the second of the two substantive bases upon which the findings on liability were challenged was expressed as follows:
Her Honour's conduct during the course of the trial coupled with Her Honour's reasoning as displayed in her judgment in rejecting all evidence favourable to the appellant but accepting all evidence unfavourable to the appellant demonstrated Her Honour either failed to use, or palpably misused her advantage to the extent that the trail miscarried.
79 Before turning to the more detailed submissions which dealt with this assertion and related matters it is relevant to note that no application was made to Judge Gibb to disqualify herself on the basis of bias or otherwise.
80 Further, whilst reference is made to the tone used by Judge Gibb in relation to a number of criticisms of her conduct of the trial, there was no evidence from Counsel or his instructing solicitor nor was the tape recording of the evidence tendered (See Aardvark Security Services Pty Ltd v Ruzkowski (1996) 13 NSWCCR 1 per Handley JA at 17).
81 Before considering the criticisms made in respect of the Judge's treatment of individual witnesses it is appropriate to make three observations of general application to my conclusions on this aspect of the appeals.
82 First, it is clear that the Judge took into account her observations of the witnesses whilst they gave, in most cases, quite lengthy evidence. The principles laid down in cases such as Abalos v Australian Postal Commission (1990) 171 CLR 167 and Devries v Australian National Railways Commission (1993) 177 CLR 472 are applicable. Indeed this is accepted in the way the relevant grounds of appeal are framed.
83 Second, other Judges may have used more diplomatic language than Judge Gibb in expressing conclusions as to credit, however, this is a matter of style and not error.
84 Third, it is not correct to assert that the Judge accepted everything put for the respondents and rejected everything put for the appellant.
85 For example the Judge rejected the theory advanced by Mr Foster that the rear axle had been misaligned at the time of modification.
86 The Judge accepted Mr Axup and Mr Senz in terms I have set out. She had commented upon their failure to note the breakage of the Z leaf spring, however, considered that their credit remained intact. No doubt the Judge was assisted by the way in which each witness responded to the lengthy and rigorous cross-examination which took place.
87 Judge Gibb found Mr Griffiths, the expert witness called by the appellant, to be partisan, evasive and unimpressive. She also observed that he was very reluctant to concede anything that might be against his client's interests in cross-examination.
88 My reading of the relevant portions of the evidence does not incline me to the view that the Judge misused the advantage of seeing and hearing Mr Griffiths rather to the contrary.
89 I do not consider it necessary to traverse the evidence as a few examples will suffice.
90 Mr Griffiths in his second report criticised the method by which Mr Axup had calculated the critical speed for the semi-trailer on the corner, yet when challenged in cross-examination he agreed that the method was an acceptable one.
91 His own calculations as to the critical speed produced a result significantly less than that of Mr Axup supporting his theory of excessive speed. Cross-examination established that the figures he used put the centre of gravity of the vehicle at an untenably high point.
92 Mr Griffiths later embraced the theory that the most probable cause of the accident was the fracture to the Z leaf spring on the trailer.
93 To overcome the difficulty in this theory that McKay said that the problem arose at the rear of the prime mover Mr Griffiths asserted that the driver would not be able to distinguish where it occurred.
94 This was not the view of McKay, a very experienced driver who had experience of trailer roll overs and of Mr Axup who considered that an experienced driver would be aware of such a matter.
95 Mr Griffiths, as the Judge found, had no relevant experience in driving vehicles of the type involved and did not hold a heavy vehicle licence.
96 Mr Griffiths dealt in cross-examination with some difficulties in relation to his first report by asserting that he had written it as "reactive" to Mr Axup's report, a matter which does not appear from the report.
97 Mr Griffiths concluded in his second report that he had seen no evidence of the suspension collapsing before the accident.
98 However, as Judge Gibb noted:
Mr Griffiths proceeded on the basis that David Axup's inspection of the truck and photographs did not record evidence of "grinding" style marks on any components which could have explained sparks allegedly observed by other drivers.
In that Mr Griffiths was in error - as he ultimately conceded. Mr Axup's report contained a simple textual and photographic explanation.
99 Sparks were observed by another driver which Mr Axup explained as likely to have come from the mudguard being pushed down onto a tyre as the suspension collapsed. He considered that marks on the tyre he found supported that view.
100 In re-examination Mr Griffiths, in the Judge's view, further reduced his credibility by introducing an alternative theory in respect of the sparks which in cross-examination he agreed was speculative and at odds with Mr Axup's photographic record.
101 A reading of the cross-examination of Mr Griffiths, in my view, shows a reluctance to deal directly with the questions put to him. Whether that was an inherent trait or reflected his approach to the case is very much a matter of impression.
102 I shall come to more matters relating to Mr Griffiths in dealing with other grounds, however, I consider that the allegation that the Judge misused her advantage in respect of Mr Griffiths is not made out.
103 Judge Gibb found Mr O'Keefe, the appellant's workshop foreman, an unimpressive witness who failed to bring an objective mind to the task. The written submissions put that this was inconsistent with her conclusion that he sought to be an honest witness. There is no necessary inconsistency between these two concepts. The Judge noted that Mr O'Keefe simply assumed that the work would have been done properly. She pointed out that he did not know what was done with the relevant vehicle.
104 Mr Harradine was also considered by the Judge to be an unimpressive witness who failed to bring an objective mind to the task. He, she considered, relied upon his faith in the job having been dealt with in accordance with the usual practice and was in obvious error as to the completion of signatures and verifications which were not as he expected to find.
105 The Judge found that Mr Harradine was honest in what he said but that his omissions were at the contrived end of the scale, rather impairing his apparent frankness and that he was very reluctant to concede anything that he considered might be adverse to the appellant's interests.
106 Judge Gibb ascertained, when Mr O'Keefe gave evidence, that he and Mr Harradine had in the early days of the trial inspected a vehicle they believed to be the relevant one. She considered that the non disclosure of this fact, as she put it, raised significant concerns about his degree of frankness.
107 Mr Bridge had not lead from Mr Harradine, not considering it relevant at that stage, the fact of the inspection and no other questions were asked of him calling for its disclosure. In these circumstances I do not think that the Judge was entitled to use the omission as she did in her evaluation of Mr Harradine's credit, however, when other factors are taken into account, together with the conceded limitations on the evidence Mr Harradine was able to give, I do not consider that the error had any significant effect.
108 Mr Bridge put that Judge Gibb was not entitled to find each of Constable Stringer and Mr Smith singularly unimpressive witnesses of very little credit.
109 Constable Stinger and Mr Smith, an RTA Officer, had attended the scene. They both obviously had a preconception that excessive speed was the cause of the roll over.
110 Mr Bridge said in address that the Judge was perfectly entitled to consider them mistaken and clearly wrong. He conceded that he could not reinstate them and did not try. He did, however, put that the Judge's conclusion as to the witnesses, as expressed by her, was an example of the way in which the Judge has "blackened all of the witnesses called by or on behalf of the defendant".
111 I have earlier commented upon the language used in dealing with credit. In view of the concession made by Mr Bridge I do not need to examine the evidence of these witnesses further, beyond observing that the Judge commented, with convincing illustration, upon the reluctance of Mr Smith to make appropriate concessions.
112 The written submissions draw attention to the fact that Judge Gibb accepted McKay as an honest and straightforward witness despite the fact that "he may have been rather less than frank in the steps taken to obtain and maintain his Western Australian driver's licence". The Judge clearly considered this essentially peripheral matter and then reached her conclusion as to McKay's credit having heard and seen him in the witness box over an extended period.
113 The written submissions note that Judge Gibb accepted Mr Power's evidence as, amongst other things, corroborative as to speed and that she found him an honest witness. This despite the fact that he had earlier made a statement that his truck was 400 metres behind McKay's at the time of the accident. Mr Power gave evidence which, having seen and heard him, Judge Gibb accepted established that the statement was wrong.
114 The Judge set out in her judgment in considerable detail how she assessed the witnesses, those she accepted in part or in whole, and those she did not. Taken as a whole I do not consider that there can be demonstrated any failure to use or misuse of the advantage of the trial Judge.
115 It was put in the written submissions that Judge Gibb conducted the trial as an inquisitorial rather than an adversarial process and that as a result the trial miscarried.
116 Mr Bridge supported that contention by reference amongst other things, to the number and nature of questions asked by Judge Gibb during the course of the trial.
117 During the cross-examination of Mr Harradine by Mr Sheldon he asked 229 questions and Judge Gibb asked 75. When Mr Royle cross-examined he asked Mr Harradine 75 questions and the Judge asked 27.
118 The matter to which Mr Bridge went in some detail was the cross-examination of Mr Griffiths. During Mr Royle's cross-examination he asked 359 questions and Judge Gibb asked 221. During Mr Sheldon's cross-examination he asked 381 questions and Judge Gibb 7. During the whole cross-examination 740 questions were asked of which the Judge asked 228.
119 Mr Bridge submitted that the Judge had taken over the conduct of the cross-examination.
120 We were supplied with a list of the transcript references upon which Mr Bridge relied and I have read all of them. Mr Bridge dealt specifically in address with a number of the passages and I shall go briefly to some of them.
121 Before I do that I make the observation that a reading of the references left me with a firm impression that it was indeed difficult to get Mr Griffiths to deal directly with the question being put to him. The general nature of the questions were attempts to ascertain Mr Griffiths' position on particular issues or questions rather than any attempt to press a particular view or position upon him.
122 A number of questions put by Mr Royle were followed by a question from the Judge:
Q. Mr Griffiths, simple question, did you have more information about the modification.
A. Yes, I did.
123 On the basis of what had gone before I see no proper objection to that question.
124 There was a passage in the cross-examination dealing with an issue relating to the question of sparks in which Judge Gibb asked some 21 questions and also interrupted Mr Griffiths on a number of occasions. Whilst it is clear that the Judge was endeavouring to obtain Mr Griffiths' view on the probable cause of the sparks and the sequence of events, I am of the view that the Judge would have been better advised to have been more limited in her intervention at this point.
125 At one point the Judge asked:
Q. Mr Griffiths you're going to have to pick a fence and sit on it, that the suspension collapsed before, during, after or don't know.
A. Just before or during, considering that in isolation.
126 This hardly sounds an appropriate question to an expert, however, it is understandable in a context where there were a limited number of possibilities and it was proving difficult to get Mr Griffiths to make clear which one he favoured or whether his position was that he did not know.
127 Mr Bridge criticised a statement by the Judge "Mr Royle, I think by the end of this we're all going to be confused, I think you're going down Mr Griffiths' path, one at a time please".
128 This observation was made, however, after Mr Royle had asked a wrapped up type question which did not assist to clarify matters. His question involved a number of concepts just as did the preceding answers by Mr Griffiths.
129 As I read these passages the Judge was trying to get both Counsel and witness to simplify and clarify their questions and answers. I consider that, in the context, she was entitled to do that.
130 Soon after this exchange the following occurred:
Bridge: I accept that, your Honour. Could I raise one other matter? I am reluctant to do so but we're having your Honour asking a lot more questions than Mr Royle. Now, Mr Royle and Mr Sheldon, without being too overly pleasant to them, they are more than capable of doing so.
Her Honour: They are quite competent to run their own case. I am having extraordinary difficulty in understanding the answers I'm getting.
Bridge: I just raise the concern.
Royle: I can indicate for my part I am more than happy for your Honour to ask the questions if it brings to light the evidence in your Honour's mind better than I asking the questions. I just indicate that.
131 Mr Bridge thus did raise with the Judge the issue of the number of questions but he did not suggest any other vice in them. It is not to the point that Mr Royle did not object.
132 Mr Griffiths was asked a question based upon a number of assumptions. The question referred to the suspension and collapse. I should have thought that was, in the context, clear enough; however, Mr Griffiths supported by Mr Bridge sought clarification and the Judge said:
Her Honour: "Collapsed" means broken, not there, smashed, stolen and any other verb you care to intersperse. We will come back to how it happened. I don't think Mr Griffiths had any difficulty with the word "collapsed", did you Mr Griffith? We are not asking how, we are asking fact, you don't have any difficulty with the word "collapsed"?
133 As Mr Bridge put the observation was not courteous. It no doubt expressed a measure of, in my view not unjustified, exasperation.
134 The same assumptions were put and there was an unfortunate fault in the recording equipment. The Judge said after resumption and a brief account of where the evidence had got to:
Now, it may be that as a matter of fairness Mr Griffiths should see the transcript before he goes anywhere further on assuming the same four, because I suspect Mr Griffiths' recollection may have been a trifle distracted of late. So unless you are to (take) a more simple path, we might resume tomorrow with the transcript, so that Mr Griffiths can find out what the four assumptions were before he was sirened out.
135 It is common place for a Judge to form the view that a witness, particularly during cross-examination, is beginning to tire and become distracted and there is nothing I can see worthy of criticism in the Judge's actions at this point. There was some speculation as to the reference to "sirened out". I think it clear enough that the Judge was referring to the interruption of recording whilst Mr Griffiths was giving his answer. Indeed the transcript records the use of a new tape thereafter. I would think it likely that there had been an audible warning of completion of the earlier one.
136 Complaint is made of the warning given by the Judge to Mr Griffiths, in unexceptionable terms, of the consequences of still being under cross-examination. There is no substance in this complaint.
137 During some cross-examination relating to the calculation of critical speed the Judge asked a question:
Her Honour: I thought Mr Axup had used a different model, and we went down this discussion yesterday, it was delightfully short because you said he had used a different approach and it was a perfectly respectable approach.
138 Mr Bridge put that the reference to "delightfully short" was gratuitous. This is to misunderstand the reference. The Judge was referring to the short and simple method of calculating critical speed used in Mr Axup's report as contrasted with the considerable more complicated calculation favoured, initially at least, by Mr Griffiths.
139 Judge Gibb did press Mr Griffiths for an answer in relation to an aspect of the method of calculation in the following passage:
Q. Mr Griffiths, when you wrote that report did you then hold the view that you told me about yesterday morning, that it was a perfectly respectable approach that Mr Axup had taken, albeit that you had used a different variable?
A. What I said was, and I don't recall my exact words . . .
Q. Did you hold the view, yes or no?
A. What I was trying to say was that it's an alternative way of approximating things . . .
Q. Did you hold the view or not then?
A. It's an acceptable alternative . . .
Q. Mr Griffiths I will ask you only once more, did you hold the view then or not?