Ms Carmelina Spitaleri, Solicitor to the Transport Accident Commission

1 I have had the advantage of reading the reasons of Whelan JA in draft form. I agree with those reasons and the order his Honour proposes.

2 In the early afternoon of 29 March 2004 Anthony Cuthbertson was riding his motor cycle down the Great Alpine Road from Mt Hotham Ski Village towards Harrietville. There were four other motor cyclists riding 'in convoy' with him. There was thick fog and the road was damp. The five motor cyclists were riding behind each other, but the distance between them and the thick fog meant that they each had only intermittent vision of the rider in front of them.

3 At the same time Mr Casey Van Der Zaag was driving a Ford F100 utility towing an open steel trailer in the opposite direction to the five motor cyclists up the Great Alpine Road. He had a passenger in the vehicle with him.

4 An accident occurred involving an impact between Mr Cuthbertson and the trailer Mr Van Der Zaag was towing. Mr Cuthbertson suffered significant injuries.

5 The area where the accident occurred was close to a sharp bend. The bend was a left hand bend for Mr Cuthbertson on his motor cycle and a right hand bend for Mr Van Der Zaag in the F100 with the trailer. The impact was just before the bend for Mr Van Der Zaag and just after the bend for Mr Cuthbertson.

6 Mr Cuthbertson brought proceedings in the County Court alleging negligence by Mr Van Der Zaag. Mr Van Der Zaag died before the trial. His death was unconnected with the accident. Mr Cuthbertson had no recollection of the accident as a consequence of the injuries he suffered. Such evidence as he was able to give

was largely discounted by the trial judge.[1] Before his death Mr Van Der Zaag had made some informal statements in relation to the accident to a variety of people, but the trial judge found them to be of limited assistance.[2] Mr Van Der Zaag's passenger, Cornelius Bouma, gave evidence as to the circumstances of the accident. The trial judge found that evidence to be unreliable.[3] For the purposes of the appeal, the appellant accepted that the trial judge was justified in reaching the conclusion he did as to Mr Bouma's evidence.

7 Thus, the trial judge had no reliable evidence which was of assistance from anyone on or in the vehicles involved in the accident.

8 Immediately prior to the impact between Mr Cuthbertson and the trailer, Mr Cuthbertson had become separated from his motor cycle. The cause of that separation was the subject of submissions and speculation but was not determined. The trial judge observed that Mr Cuthbertson may have become separated from his motor cycle for any of a number of reasons ranging from his own negligence, to his taking fright because of the negligence of Mr Van Der Zaag in allowing his vehicle and the trailer to cross over onto the incorrect side of the centre line.[4]

9 The unusual concurrence of circumstances to which I have referred resulted in a negligence case against Mr Van Der Zaag which eventually turned on this single issue: Did Mr Cuthbertson suffer his injuries as a result of impact between his body and the oncoming trailer whilst the oncoming F100 and trailer were on their incorrect side of the road and his body was on his correct side of the road?

10 The trial judge found that there was an impact between the right hand (driver's side) wheel of the trailer being towed by the F100 and Mr Cuthbertson's body, and that that impact occurred on the correct side of the road for Mr Cuthbertson and the incorrect side of the road for the trailer. The trial judge concluded that once there was a finding that the trailer was on the incorrect side of the road when it struck Mr Cuthbertson, negligence by Mr Van Der Zaag had been established. On this appeal, the judge's conclusion as to the point of impact is submitted to be erroneous. The conclusion as to negligence, if the point of impact was where the trial judge found it to be, is not challenged.

11 In reaching his conclusion that the impact occurred on the wrong side of the road for the trailer, the trial judge's acceptance of evidence given by the motor cyclist who was riding behind Mr Cuthbertson, Kenneth Lamb, was crucial. The issue of on which side of the road the impact had occurred was also the subject of expert evidence by an engineer experienced in accident reconstruction work named John Terence Marshall.

12 There are fifteen grounds of appeal (the number 10 is used twice). Leaving aside three grounds (grounds 12-14) which merely broadly assert error and which do not add anything to the other grounds, the grounds fall into three groups. They are:

(1) Grounds 1 to 3 assert error by the judge in finding Mr Lamb to be a credible witness and in relying upon his evidence, or assert a failure to give adequate reasons for finding him to be credible. It is said that there are four matters which ought to have resulted in the trial judge reaching a different conclusion as to Mr Lamb. The four matters relied upon are:

(i) A written statement by Mr Lamb provided to the Transport Accident Commission (TAC) in which he had expressed an inability to say whether the F100 was on the wrong side of the road.

(ii) The fact that Mr Lamb made no allegation at the scene attributing fault to the driver of the F100.

(iii) The contradiction between Mr Lamb's evidence that he did not speak to a policeman and the evidence of the policeman who attended the scene, Senior Constable Hawley, that he did speak to Mr Lamb.

(iv) The fact that in the trial, counsel for Mr Cuthbertson did not attempt to rebut an allegation that Mr Lamb's evidence was a recent invention.

(2) Two grounds (grounds 4 and 5) concern the evidence of Mr Marshall. It is said that the trial judge adopted certain evidence of Mr Marshall, namely that in his opinion the impact was most likely to have occurred 30 to 40 centimetres to the right of the centre line and on the incorrect side of the road for the trailer, which is said to be 'wrong and completely reverses Mr Marshall's ultimate evidence' in cross-examination.

(3) The balance of the grounds (grounds 6 to 11) set out a number of matters upon which it is said that the trial judge erroneously relied and a number of matters upon which it is said that the trial judge erroneously failed to rely. The matters upon which it is said that the trial judge erroneously relied are his conclusion as to the position of Mr Cuthbertson's body at the point of impact; his reliance on the position of the motor cycle after the accident; his reliance on a statement by the motor cyclist riding in front of Mr Cuthbertson, Wayne Maxworthy, which was tendered; his reliance on his conclusions in relation to the injuries suffered by Mr Cuthbertson to his chest and upper body; his conclusion concerning how the impact damage to Mr Cuthbertson's helmet was sustained; and his conclusion that at the point of impact it was impossible to say whether Mr Cuthbertson was sliding or ceased sliding fractionally before or simultaneously with the impact. The factors which it is said the trial judge ought to have relied upon but did not are the fact that Mr Cuthbertson was riding around a sharp left hand bend; the fact that the F100 was proceeding along a straight section of roadway; the fact that prior to the impact Mr Cuthbertson lost control of his motor cycle and fell; what was said to be the 'high probability' that, having fallen, Mr Cuthbertson would have moved in a north easterly direction and thus towards and across the centre of the road; and the weather conditions and reduced visibility.

The physical characteristics of the location and the F100 and trailer

13 The relevant bend in the road has a rock face rising above what was Mr Cuthbertson's left hand side and has a sheer drop falling below what was Mr Van Der Zaag's left hand side.

14 The straight section of road immediately after the bend for Mr Cuthbertson and immediately before it for Mr Van Der Zaag runs north/south. The direction in which Mr Cuthbertson was proceeding is north and the direction in which Mr Van Der Zaag was proceeding is south. Thus, the correct side of the road for Mr Cuthbertson is the west side and the correct side of the road for Mr Van Der Zaag is the east side. Whilst the trial judge in his reasons always made it clear to which side of the road he was referring, he often confused the compass points, referring to west when he clearly meant east and vice versa.

15 The road in the area where the accident occurred is bitumen and is 7.1 metres wide. There are unbroken yellow lines on the edge of the bitumen on each side of the road and there is an unbroken yellow line down the middle of the road.

16 The F100 is 1.9 metres wide and the trailer is 1.65 metres wide and 3 metres long.

17 Mr Lamb was travelling 10 to 20 metres behind Mr Cuthbertson as they proceeded down the mountain in the thick fog. The evidence of Mr Lamb was significant because, if accepted, it established the following propositions:

(1) Prior to the bend Mr Lamb himself was travelling along or very close to the unbroken yellow line on the extreme left of the bitumen, and his intermittent observations of Mr Cuthbertson leading up to the bend were that Mr Cuthbertson was travelling in the same position.

(2) Because of the conditions, and in particular the thick fog, Mr Lamb was travelling at a maximum speed of about 20 kilometres per hour in first gear. His intermittent observations of Mr Cuthbertson indicated that he was travelling at a similar speed.

(3) When the F100 and the trailer passed Mr Lamb, which had to be immediately after the impact with Mr Cuthbertson, it was very close to Mr Lamb, who was then on the extreme left hand side of the road. Mr Lamb said: ' ... the recollection that I have is of a mudguard of a - which turned out to be a utility, loomed up at me out of the fog, which I believe I could have nearly put my hand out and touched the mudguard, it was that close'.

(4) Immediately after the impact, Mr Cuthbertson's motor cycle was on the correct side of the road, and Mr Cuthbertson himself was lying on the road with his head and part of his left shoulder on the centre line and with his right shoulder and the rest of his body on the correct side of the road for him. 90 to 95% of Mr Cuthbertson's body was positioned on the correct side of the road.

18 Mr Marshall, the accident reconstruction expert, attended the accident scene with Mr Lamb, Mr Cuthbertson, and the motor cyclist who was riding behind Mr Lamb, Jeffery Cook, on 10 November 2008. Mr Lamb demonstrated for Mr Marshall the position in which he had found Mr Cuthbertson lying on the road immediately after the impact. Mr Cook identified the same position. Both Mr Lamb and Mr Cook adopted that description of Mr Cuthbertson's position in their evidence at the trial.

19 Mr Marshall took measurements, conducted tests, and conducted an examination of the location. Amongst other things, he found residues of a white plastic material impressed into the surface of the paint used to mark the yellow centre line of the road. He found shallow gouge marks approximately three metres north of the spot where that white plastic residue was found. The white residue was at the location identified by Mr Cook and Mr Lamb as the position of the helmet of Mr Cuthbertson.[5]

20 Mr Marshall expressed the conclusion in a written report which he prepared, extracts of which were tendered,[6] that at the time of impact the F100 and the trailer were travelling 30 to 40 centimetres to the right of the centre line, that is on the incorrect side of the road. In his evidence in chief he explained that this conclusion was based upon the measurement of the distance between the centre line and Mr Cuthbertson's chest. Mr Cuthbertson suffered injuries to his chest consistent with impact.

21 In his cross-examination Mr Marshall was asked questions directed towards establishing the proposition that the point where Mr Cuthbertson's body was found was not the point of impact. The questioning began by addressing the hypothesis that Mr Cuthbertson might have come off his bike because of a 'sudden correction', as a result of taking a wrong line in the corner or finding it sharper than anticipated, causing a loss of traction. Mr Marshall agreed that such a circumstance would propel the rider towards the centre of the road. A little later he agreed that 'whatever happened', when he was hit, Mr Cuthbertson was sliding in a north easterly direction. It was suggested, and Mr Marshall appeared to agree, that that conclusion was necessary if Mr Cuthbertson's injuries were caused by being run over by the trailer because otherwise he would have been hit or run over by the F100. It was then put to Mr Marshall that if a person was sliding in a north easterly direction and went under the wheels of a southbound vehicle there was a high probability that he would be dragged or knocked in the direction of travel of the southbound vehicle and Mr Marshall agreed with that. The following was then put to him:

So it becomes absolutely clear that - and let's assume that the point where the plaintiff finished up was the point where you found the plastic residue - it's clear beyond doubt that the point where the plaintiff was hit or run over, more accurately, was at a point generally north of that point? - - - Yes, I'd agree with that, and possibly north east in fact.

22 When asked to estimate the distance he said that it would be 'a relatively small distance'.

What is clear is that at the point where the plaintiff was struck he was further on his incorrect side of the road than he was when he finished up? - - - That's probably correct.

24 It was put to Mr Marshall that the point of impact could have been in the middle of the southbound carriageway and he said that he could not discount that and that it was a possibility.

25 In re-examination Mr Marshall said that the only way a collision could occur with the trailer and not the F100 would be if Mr Cuthbertson slid behind the F100. He was then asked the following:

If the car and the trailer were travelling in a southerly direction and somebody moves into the path of the trailer in a north easterly direction and there is movement of the person following the collision, in what direction is that person likely to move? - - - In a southerly direction.

26 He was asked what he meant by a 'relatively small distance' and he said that he thought 'no more than a metre'.

27 The critical conclusion which is challenged on this appeal is the trial judge's conclusion that the impact between the trailer and Mr Cuthbertson occurred on the correct side of the road for Mr Cuthbertson and the incorrect side of the road for the F100 and the trailer. It is necessary to quote in full what the trial judge said in his reasons for judgment under the heading 'Where was the point of impact and on which side of the centre line was the F100 and the trailer?'

1. These are related issues. I accept that the plaintiff had been travelling on the left side of the carriageway. I accept that, at the time that he was struck, he had separated from his motor cycle. I also accept the evidence of Mr Lamb in relation to the position of the F100 on the roadway in the bend when he first saw it and, obviously, immediately after impact. Mr Lamb was travelling close behind the plaintiff and there could only have been approximately a second between the impact and Mr Lamb seeing the mudguard of the F100 appear out of the fog. He was travelling in the extreme left of the eastern lane and the mudguard was so close that he claims he could have reached out and touched it. He demonstrated his reach, which would appear to be in the order of one metre. If one allowed another metre for the width of his bike and his body and a small gap between the bike and the left yellow fog line, that would still leave the F100, in the bend, in excess of a metre on the incorrect side of the centre line. The trailer would have been marginally less - about 12 centimetres by my calculations - on the incorrect side but still on that side by something in the vicinity of a metre.
2. It seems to me that the fundamental proposition that the plaintiff came off his motor cycle and slid a short distance under the trailer is correct. I do not accept that the plaintiff's motor cycle struck either the F100 or the trailer. I do not accept that the plaintiff's body struck either the F100 or the body of the trailer. Whether the plaintiff was still moving when struck by the wheel of the trailer or whether his slide ceased fractionally before or simultaneously with the impact is impossible to say. I accept that it was the right-hand wheel of the trailer that struck the plaintiff. Given the height of the trailer axle above the ground (28 millimetres) and given the position in which he was found, it does not seem feasible that the plaintiff was struck by the left-hand wheel of the trailer and this was not seriously suggested.
3. On the balance of probabilities, I am satisfied that the impact between the right-hand wheel of the trailer and the plaintiff occurred on the eastern [western][7] side of the centre line. In other words, it occurred on the correct side of the road for the plaintiff and the incorrect side of the road for the trailer. This is consistent with a number of items of evidence including the following:

(i) the position of the plaintiff on the roadway after the accident.

(ii) the position of the plaintiff's motor cycle on the roadway after the accident.

(iii) the statement of Mr Maxworthy that, when the F100 passed him it was 'hugging the centre line' and was only one to one and a half metres from him.

(iv) the evidence of Mr Lamb as set out earlier.

(v) given where the plaintiff's body was found after the accident, the injuries to his chest and upper body.

(vi) the evidence of Mr Marshall that, in his opinion, at the time of the collision the F100 was most likely travelling 30 to 40 centimetres to the right of the centre line.

1. There are other factors which are more in the realm of speculation and guess work and perhaps the best that could be said for them is that they are not inconsistent with the conclusion which I have reached. Some were referred to in submissions. These include such matters as:

(i) the line which the plaintiff had been following down the mountain, and I accept the evidence of Mr Lamb in this regard, although of course this is no evidence as to what occurred on the bend in question.

(ii) the general lack of reliability of the evidence of Mr Bouma, which impacts more upon which evidence I prefer but which seems to me to indicate that Mr Bouma had no real idea as to where the F100 was on the roadway at the relevant time.

(iii) the statement made immediately after the accident by Mr Van Der Zaag to Mr Cook which basically is to the effect that Mr Van Der Zaag simply saw someone and felt a bump, and which contained no assertion as to where on the roadway either the F100 or the plaintiff were located.

(iv) the fact that Mr Van Der Zaag and Mr Bouma had previously overshot the turn on the left to Dargo and were then coming back up the mountain, looking for a turn on the right.

(v) the fact that the F100 is a large vehicle which was coming up a windy road in a fog, and with a precipice on the left-hand side, and was coming into a right-hand bend.

As stated, probably the most that can be said about these matters is that they are not inconsistent with the conclusion that I have reached, although some of them were the subject of submissions or argument.

1. In summary, I am satisfied on the balance of probabilities that both the F100 and the trailer were, for them, on the incorrect side of the centre line at the moment that the trailer struck the plaintiff.

29 The principles which apply when an intermediate appellate court is asked to allow an appeal on the basis of erroneous factual findings by a trial judge were not the subject of submissions on this appeal, save for a reference in the appellant's written submissions to the High Court decision in Fox v Percy.[8]

30 The facts in Fox v Percy were, in some respects, strikingly similar to the facts in this case.

31 Fox v Percy has been cited and considered on many occasions since it was decided, and the applicable principles were re-considered by the High Court in CSR Ltd v Della Maddalena.[9]

32 The authorities were not canvassed on this appeal, but it does seem to me that there are continuing differences of view, or perhaps only of emphasis, in the High Court as to the proper approach by intermediate appellate courts where there is a challenge to a trial judge's findings as to credit.

33 Notwithstanding those differences, the following propositions can be taken as established:

(1) An intermediate appellate court can, and must, overturn a factual finding where, after a review of all of the evidence, the intermediate court considers that an incorrect inference has been drawn from undisputed facts, facts incontrovertibly established, or facts as found by the trial judge.

(2) Where a trial judge has made a finding based upon credit an intermediate appellate court can, and must, overturn that finding where the finding is inconsistent with facts incontrovertibly established, is glaringly improbable, or is contrary to compelling inferences in the case.

34 A trial judge has advantages over an intermediate appellate court in the fact finding process which an appellate court ought to recognise and acknowledge.[10] This does not alter the appellate court's statutory obligation to determine appeals after its own review of the evidence, but it should act as a restraint upon an appellate court reaching a conclusion that a factual error has been made.[11] The traditional view of the importance of a trial judge's ability to observe the demeanour of witnesses has declined in significance, and is almost entirely dismissed by some, but it remains the more generally accepted view that the capacity to observe demeanour will be significant in particular cases and particular circumstances.[12] The nature of the trial process gives the trial judge advantages in fact finding which extend beyond the capacity to observe demeanour.[13] The trial judge sees the case evolve through the witnesses themselves in a process which, in certain kinds of cases at least, has a closer connection to the events in question than the process on appeal. The trial judge sees and hears the people who participated in or observed the relevant events. The appellate court can only read about it. In cases which turn upon accounts of events given by witnesses from memory, as opposed to cases which turn more on documentary or other records, this may be important. But there are also some respects in which the appellate process has advantages.[14]

35 I have referred to the key issues which are raised in this appeal, to some of the evidence, and to the findings on those key issues. It is important to note, however, that the trial judge's reasons were detailed and comprehensive and dealt with many other matters as well. He reviewed the conditions of the road and the topography, the prevailing weather, the vehicles, and the progress of all the vehicles to the relevant area. He set out all of the evidence led by the parties in some detail. He gave detailed reasons why he was unable to accept the evidence of Mr Van Der Zaag's passenger, Mr Bouma. He reviewed the evidence and reached conclusions as to the position of Mr Cuthbertson on the roadway after the collision; the position of Mr Cuthbertson's motor bike after the collision; the damage or absence of damage to the respective vehicles; the statements made by Mr Van Der Zaag to various persons; the evidence of Mr Marshall, including the cross-examination relied upon on the appeal; the investigation conducted at the scene by Senior Constable Hawley; and evidence given concerning the injuries suffered by Mr Cuthbertson. He reviewed aspects of the relevant law, and he then made findings as to the critical issues, including those which are now relevant to this appeal and which I have set out in full.

Accepting the evidence of Mr Lamb - grounds 1 to 3

36 There are four factors by virtue of which it is said that the trial judge erred by accepting Mr Lamb's evidence.

37 The first factor is the fact that Mr Lamb made a statement to a TAC investigator which contained this sentence:

I am unable to say whether it was on its incorrect side of the road.

38 The statement itself was not tendered. All the trial judge knew was that a statement existed which contained that sentence. He knew nothing of what else was in the statement and knew nothing of the context in which that sentence appeared. It seems clear from the transcript that both counsel had the statement. Presumably, each party determined that tendering the statement would not advance their respective positions or considered that it was unnecessary to tender the statement to establish their respective positions.

39 When giving his evidence in chief Mr Lamb was asked the following question and gave the following answer:

Now, did you notice a vehicle come past you? - - - I did. When this all happened, everything happened very, very quickly, that we came down around - around, for us, a left hand bend in the road and the recollection that I have is of a mudguard of a - which turned out to be a utility, loomed up at me out of the fog, which I believe I could have nearly put my hand out and touched the mudguard, it was that close.

40 The vehicle to which he was referring was the F100.

41 Counsel for Mr Cuthbertson, anticipating cross-examination on the TAC statement, decided to deal with it in evidence in chief. He referred Mr Lamb to a statement he had prepared and then the following interchange occurred:

In that statement, you say you are unable to say whether the truck was on the incorrect side of the road? - - - I wouldn't like to say where the truck was or where it was except for the fact that to me, as I was on the extreme left hand side of the road, the truck, I felt like I could just reach out and touch the mudguard on it, it was that close.

So although you didn't see the lines in the middle of the road - - - ? - - - Yes.

• • • having thought about it now here in court, what do you say about what side of the road that truck ...

At that point there was an objection. Eventually, counsel was permitted to ask the question: 'On what side of the road do you believe the vehicle was on?' The answer given was as follows:

I believe a good part of that vehicle was in the oncoming lane, in my lane. The reason I wrote those words is that I couldn't really judge exactly what part of the road it was on but going by how close it was to me and the width of the road, that must have been in my lane.

42 It seems to me that what Mr Lamb was saying in his evidence in chief was that he did not make an observation of the F100 on the wrong side of the road. He did not observe the position of the F100 in relation to the centre line. What he said he did observe was himself on the extreme left and the mudguard of the F100 going past him so close that he could have reached out and touched it. As a result of those observations which he did make, when specifically asked to give his belief, he did so saying that he believed a good part of the F100 was on his side of the road.

43 When cross-examined on the statement, Mr Lamb said that he could not say exactly where the F100 was on the road, while adhering to his evidence as to his own position and as to his capacity to have touched the mudguard.

44 The only reference to the TAC statement made in the judgment was words in parenthesis which the judge inserted into an extract from Mr Lamb's evidence which he was quoting. The words in parenthesis are 'apparently in a previous statement Mr Lamb had expressed an inability to say whether the F100 was on the incorrect side of the road'.[15]

45 The second factor by virtue of which it is submitted that Mr Lamb should not have been accepted is a conflict of evidence between himself and Senior Constable Hawley.

46 Mr Lamb in his evidence said that he did not speak to a policeman at all at the scene. Senior Constable Hawley's evidence was that he spoke to two motor cyclists at the scene whose surnames were Forsyth and Lamb, and that neither indicated that they had witnessed the accident. Rodney Forsyth was the last motor cyclist in the 'convoy'. He did not give evidence.

47 The trial judge referred to this conflict in the evidence.[16] He also referred to the evidence of one of the other motor cyclists, Mr Cook, who was riding behind Mr Lamb and in front of Mr Forsyth. Mr Cook's evidence was that he spoke to the police officer, gave him his name and address, and gave him a brief idea of what he thought had happened. The judge then said:

Both Mr Lamb and Mr Cook struck me as reliable witnesses, but Senior Constable Hawley clearly seems to have recorded Mr Lamb's name and address. Doubtless there was a considerable amount of confusion prevailing, but where the truth of the matter lies as to who spoke to Senior Constable Hawley and who did not is impossible to state with any confidence.

48 The trial judge was unable to accept other aspects of Senior Constable Hawley's notes and his evidence. Senior Constable Hawley had drawn a diagram of what purported to be Mr Cuthbertson's position on the road when he attended the accident scene but in his evidence it was revealed that Mr Cuthbertson was already in the ambulance when Senior Constable Hawley arrived.[17] The diagram was not accurate. Senior Constable Hawley also made, and noted, measurements at the scene which, by reason of other evidence, the trial judge found himself unable to accept as being accurate.[18]

49 The third factor which it is said is sufficient to warrant appellate intervention in relation to the trial judge's acceptance of the credibility of Mr Lamb is Mr Lamb's failure to assert that responsibility for the accident was with the driver of the F100 at the scene.

50 In his cross-examination the following was put to Mr Lamb:

If you thought that there was a chance that the F100 was on its incorrect side of the road, why didn't you go to the policeman and tell him that? - - - Look, all of this was rather daunting. You've got a friend of yours laying on the road. You don't know whether you're going to have to go home and tell his wife that he's dead. As it was, it was left up to me to ring Barbara and say, 'I think you better go to Melbourne very quickly, Tony has been in an accident'.

Let me stop you there though. Why didn't you tell the policeman? - - - Nobody approached us.

51 As can be seen, this factor is related to the second factor.

52 The submission that was put to the trial judge on this issue was as follows:

We say in particular that if Mr Lamb - and we are critical of Mr Lamb's evidence - had a view that any part of that F100 was on its incorrect side of the road, that he would have been vociferous in making that point to the policeman, to the ambulance people, to Mr Van Der Zaag and to his passenger.

We would submit it would be utterly contrary to what we can assume Mr Lamb's character - and the feature I am talking about is capacity to talk - that he would have remained mute if he thought that there was a skerrick of a possibility that the F100 driver had, by his negligence, very badly injured his companion, and plainly enough the fear at the time was that the initial injuries could have been so severe as to be fatal.

53 When senior counsel made that submission he was inviting the trial judge to act upon something only those present at the trial could assess, namely what was asserted to be Mr Lamb's talkative nature, so as to reach a conclusion that Mr Lamb would have been 'vociferous' in making the point he subsequently made at the trial and would not have remained 'mute'.

54 Mr Lamb's explanation was accepted by the trial judge. He set out the explanation given and said he had no difficulty in accepting it.[19]

55 The final factor relied upon is what is said to be a failure on the part of counsel for Mr Cuthbertson to call evidence rebutting recent invention by Mr Lamb. In oral submissions on the appeal when asked to identify where the suggestion of recent invention was put to Mr Lamb, senior counsel for the appellant relied on the following passage:[20]

I'm putting to you that at all times the F100 was on its correct side of the road? - - - I don't believe that's correct.

56 I turn then to consider these four factors individually, although it is also the combined force of all of them which is relied upon.

57 The single sentence which was put before the trial judge from the TAC statement was arguably inconsistent with Mr Lamb's evidence, but it seems to me that the trial judge could have properly taken the view that its significance was difficult to assess given that it was a single sentence with no context. The obvious diffidence with which the trial judge did treat the statement, referring to it only in parenthesis when quoting a passage from Mr Lamb's evidence where he addressed it, was an approach which in my view was open to him.

58 I say that the statement was only 'arguably' inconsistent for this reason. What Mr Lamb appears to have attempted to do in his evidence (accepting his credibility for these purposes) was to say what he did observe and to leave the drawing of conclusions to the barristers arguing the case and to the judge. Witnesses are often criticised for not doing this. Mr Lamb said he could recall being on the extreme left of the road and seeing the F100 pass by him so close that he could have reached out and touched it. It was for others to say what conclusion ought to be drawn from those observations. Mr Lamb was pressed to give his own conclusion or belief by counsel, both counsel for Mr Cuthbertson anticipating the cross-examination and counsel for the TAC in cross-examination. He then drew the conclusion and expressed it as his belief. The judge drew the same conclusion, relying not upon Mr Lamb's expressed belief, but upon the observations which Mr Lamb made, and which the judge accepted.[21]

59 The second factor relied upon does not seem to me to be significant. The possibility of an honest mistake, having no effect whatsoever on the credit of either Mr Lamb or Senior Constable Hawley is, in my view, obvious.

60 As to the third factor, this was a matter quintessentially within that area where the trial judge is significantly advantaged over an intermediate court of appeal. Counsel for the TAC relied, in terms, when making his final submissions on this issue, upon the trial judge's observations of Mr Lamb.

61 I also do not consider that the fourth factor is significant. I do not think it is clear that an allegation of recent invention was even put.

62 The factors put forward in support of the proposition that this Court should now overturn the trial judge's decision to accept the credit of Mr Lamb, either individually or in combination, fall well short of what would be required. There is no incontrovertible evidence which is inconsistent with the account given by Mr Lamb and there is nothing which indicates his account is glaringly improbable. The factors relied upon did not require the judge to reject his evidence and, in my view, do not warrant an appellate court intervening. The trial judge's conclusion as to Mr Lamb's credit has not been shown to be either erroneous or inadequately explained.

63 Senior counsel for the appellant frankly conceded in the appeal hearing that if Mr Lamb was accepted as a credible witness, the combination of his evidence and the position of the plaintiff's body immediately after the accident put the appellant's case in serious difficulty. I agree with that assessment. I turn nevertheless to the other grounds.

Finding concerning the evidence of Mr Marshall - grounds 4 and 5

64 The appellant is correct in submitting that the bald statement in sub-paragraph (vi) in paragraph 123 of the judgment (set out in the passage I have previously quoted) does not reflect Mr Marshall's evidence in his cross-examination. But that was not the only place where the trial judge addressed that issue. The part of the judgment which addressed the issue in detail reads as follows:

1. Tests carried out by Mr Marshall revealed that what could be described as the maximum safe speed on the corner in question, and assuming that the road was wet, would be 67 kilometres per hour. Above that speed there was a risk of losing traction, but the corner could be safely navigated below that speed. He also calculated that the plaintiff would have separated from his motor cycle approximately three metres south of where he came to rest. Further, based on the position taken by Mr Lamb in replicating where the plaintiff was found after the accident, Mr Marshall estimated that the plaintiff's chest and ribs would have been 30 centimetres east of the centre line.[22] He also gave evidence that, in normal circumstances, the wheels of a trailer follow a parallel path to that of the vehicle towing it. This would also be the case with a vehicle going around a bend. He expressed the view that the gouge marks would indicate that at the time the motor cycle was probably sliding within the northbound lane and parallel with it. He also agreed with the proposition that, if a rider and his bike come down and start to slide, they will both slide in the same direction unless something on the road surface intervenes and causes them to diverge. Thus, if the bike was sliding downhill in the direction of travel of the lane, unless something happened to cause the plaintiff to change direction, he would have been expected to be sliding in the same direction. He was also of the opinion that, bearing in mind the relevant coefficient of friction, the motor cycle would probably slide further. His tests suggested that the plaintiff separated from his motor cycle approximately three metres south of the position in which he finally came to rest. Based upon the available material, his conclusion was that any loss of control by the plaintiff was not due to excessive speed. Again, based upon the available material, Mr Marshall concluded that at the time of the collision the F100 was most likely travelling 30-40 centimetres to the right of the centre line.
2. In cross-examination Mr Marshall agreed that initially a rider, separated from his bike and the bike would go in the same direction but that other things could intervene so that they diverged. One factor that caused him to conclude that in the present case the motor cycle had slid was that there was only damage to one side of it so that it had not, for example, flipped over. Given that ultimately it was facing back uphill, he believed that it would have slid and swung on its left hand side. He agreed that one thing that was clear was that the rider had lost control of the motor cycle. He considered it unlikely that the plaintiff lost control on the corner. However, he also agreed that, given the very heavy fog, if the bend was effectively blind, it would be a factor which could precipitate a loss of control. If the plaintiff had lost control in a swerving situation, was trying to pull the bike harder to the left and came off it, he would tend to go to the right or outside of the curve. He did not believe the plaintiff was stationary prior to being hit or he would have been struck by the F100.
3. Mr Marshall agreed that, north of the collision site, there was a straight section of road that was at least 140 metres in length. He stated that the point where the fragment of the helmet was found could be described as being the point of the end of the straight section as one headed uphill and the commencement of the curve. The F100 would have been entering the bend and the plaintiff would have left the bend. He agreed that it was probable that the plaintiff had lost control in the left hand bend. On further questioning he stated that it was probably correct that the plaintiff had lost control when he was out of the left hand bend, bearing in mind that the bike, whilst it may have spun, continued in a northerly direction. However, he also agreed that something had happened to the plaintiff's momentum which gave him a different direction of travel to that of the motor cycle. The point where the plaintiff was hit or run over would be the point generally north of where he ended up and possibly north-east, although he estimated the distance would be relatively small. He agreed that it was probably a correct proposition that, at the point where the plaintiff was struck, he was further on his incorrect side of the road than he was when he finished up. He also agreed that there were many imponderables to be considered. It was possible that the plaintiff was either knocked or dragged by the trailer to some extent, and he could not discount the possibility that the point of impact was almost in the middle of the southbound carriageway.
4. In re-examination Mr Marshall stated that the only way that the collision could occur with the trailer and not the F100 was if the plaintiff was sliding into the path of the F100 and, as a matter of timing, passed behind the F100 but was run over by the trailer. If the vehicle and the trailer were travelling in a southerly direction, the person who was struck would be most likely to move in a southerly direction. He could not estimate the distance of such movement, only that it would be a relatively small distance. However, he was of the view that it was inevitable that someone in those circumstances would move.
5. Whilst some years elapsed between the occurrence of the accident and the visit by Mr Marshall, along with Mr Lamb and Mr Cook, to the scene, on balance I am of the view that the piece of plastic and the gouge marks found by Mr Marshall do relate to the accident. The plaintiff was wearing a white helmet which was damaged and the fragment found was embedded in the centre line. There were marks on the motor cycle consistent with it having scraped along the road surface. Both Mr Lamb and Mr Cook, and particularly Mr Lamb, were confident in identifying the location of the accident. Quite a considerable part of Mr Marshall's evidence in relation to other matters was based upon assumptions that might or might not be correct, and he did tend to 'chop and change' a little depending upon the questioning. I accept such things as measurements taken by him. As stated by him, there are various imponderables and the like which may also have played a role.

65 It is also necessary to bear in mind Mr Marshall's evidence in chief and what he said about his conclusion that the F100 was 30-40 centimetres over the line. As I indicated earlier, in his evidence in chief when he was asked about his conclusion that the F100 and the trailer was 30-40 centimetres over the line, he made it clear that that conclusion amounted to saying that the area of Mr Cuthbertson's injured chest was that distance on his side of the centre line, assuming Mr Lamb's demonstrated position was accepted. The conclusion was not much more than a measurement, on analysis.

66 The statement of Mr Marshall's conclusion in sub-paragraph (vi) in paragraph 123 of the judgment was a bald one. But the judge had earlier dealt with the matter fully. There, he had indicated that he accepted Mr Marshall's evidence about such things as measurements but that his evidence on other matters was based upon assumptions that might or might not be correct, that he had tended to 'chop and change', and that he had said that 'various imponderables' may also have played a role.

67 I have earlier referred in some detail to the cross-examination relied upon in relation to this ground. It was introduced by senior counsel asking Mr Marshall to address the assumption that Mr Cuthbertson had become separated from his motorcycle because of a 'sudden correction' as a result of taking the wrong line in the corner or finding it sharper than expected. This was pure speculation. There was no evidence of any such manoeuvre. Given Mr Lamb's evidence that the motorcycles were travelling at a maximum of 20 kph, and Mr Marshall's evidence that the corner could be negotiated safely in the wet at up to 67 kph, this assumption is not one which seems inherently very likely.

68 Two problems emerge from this. First, it is difficult to know when, or if, Mr Marshall's evidence in cross-examination ceased to be referrable to a loss of control caused by the manoeuvre he was asked to assume; what the judge then referred to as a loss of control in 'a swerving situation'. I am not prepared on a reading of the transcript to say the judge was wrong to say that a considerable part of his evidence was based on assumptions that might or might not be correct.

69 Second, it was never put to Mr Marshall that, given the interchange in cross-examination, his conclusion that the impact was 30-40 centimetres on the wrong side of the road for the F100 had no continuing validity. I am not criticising counsel for that. No doubt he took the matter as far as he considered he needed to. But it makes it difficult now to find that the judge was bound to put that conclusion aside, especially when it is recalled that in his evidence in chief Mr Marshall had explained that that conclusion was really a measurement (the distance between the centre line and the postulated position of Mr Cuthbertson's chest by reference to Mr Lamb's demonstration and the plastic residue). The judge said he accepted Mr Marshall's evidence on such things as measurements. That conclusion is not, and could not be, criticised.

70 As to the judge's observation about chopping and changing a little depending on the questioning, I am not prepared to conclude there is any error there. Movement after impact was significant only if it was east/west, not north/south. That is why senior counsel for TAC fairly seized upon the reference by Mr Marshall to north easterly movement before the impact. But when asked about post-impact movement between Mr Cuthbertson and the F100 travelling south in re-examination, he said the movement would be southerly. Again, I would not be prepared to say the judge was wrong in describing this as chopping and changing a little depending on the questioning.

71 Reading the reasons as a whole,[23] the trial judge's treatment of Mr Marshall's evidence has not been shown to be either erroneous or inadequately explained.

Matters relied upon and not relied upon - grounds 6 to 11

72 The list of matters relied upon by the trial judge, and matters which it is asserted he ought to have relied upon, were not the subject of specific separate submissions on the appeal, with one exception. The matters raised were addressed in the context of the grounds concerning Mr Lamb and Mr Marshall. The exception was a submission put that the judge ought not to have relied upon the statement of Mr Maxworthy which was tendered.

73 Mr Maxworthy did not give oral evidence because of illness. A statement he made was tendered.[24] It will be recalled that Mr Maxworthy was the first motor cyclist in the 'convoy', and was the motor cyclist immediately in front of Mr Cuthbertson.

74 In his statement Mr Maxworthy said that when he passed the F100 it was 'hugging the centre line', by which he said he meant that the driver's side wheels were on the centre line.

75 The trial judge referred to this evidence in his reasons[25] and included it in his list of factors set out in paragraph 123 previously quoted. The submission by the appellant is that this evidence 'did not support the judge's finding'. I do not agree. If Mr Lamb's evidence is accepted, immediately after the impact the F100 was well over the centre line. Mr Maxworthy's evidence is that immediately before the impact the vehicle was on the centre line. The point of impact was at the commencement of a right hand bend for the F100. Mr Maxworthy's evidence does not enable a conclusion to be drawn, on its own, that at the point of impact the F100 was over the centre line, but it is a relevant fact. This was a circumstantial case. Mr Maxworthy's evidence was appropriately considered as part of that case. It was a relevant 'piece in the jigsaw puzzle'.

76 I referred earlier to the fact that the facts in Fox v Percy were, in some respects, strikingly similar to the facts here. That case also concerned an accident on a winding country road. In that case, the road was gravel. The issue there was also: on which side of the road did the accident happen? In that case there was a motor vehicle approaching a left hand bend who collided with a woman on a horse coming around what was for her a right hand bend. The trial judge had accepted the evidence of the horsewoman and her companion to the effect that they were on the correct side of the road when the accident occurred. It was held, however, in both the Court of Appeal of New South Wales and in the High Court that that conclusion was inconsistent with incontrovertible evidence, being skid marks on the correct side of the road for the vehicle, and also with the observations of credible witnesses as to the position of the vehicle immediately after the accident.

77 In the joint judgment of Gleeson CJ, Gummow and Kirby JJ, they observed:[26]

Having regard to the fact that the bend in the road was to the left, any natural inclination on the part of a descending driver would probably have been to the left, not to the right hand side where the road fell away. On the other hand, horses ascending the steep incline might, if uncontrolled have had a tendency to cut the bend, veering to the right hand side of the road where the respondent said the horses were.

In the end, it was not logic and the assessments of probable behaviour in the circumstances that persuaded the majority of the Court of Appeal. Such considerations might not alone have warranted disturbance of the primary judge's conclusion. It was the objective fact of the skid marks which, to the close of the trial, remained unexplained, or insufficiently explained, by the appellant.

78 There is no equivalent of the skid marks in this case. In this case the considerations of logic and probable behaviour support Mr Cuthbertson's case. He was descending and turning left. The F100 was ascending and turning right.

79 I turn then to those remaining matters which the grounds refer to as having been wrongly relied upon, and which I have not dealt with already.

80 The grounds of appeal assert that erroneous conclusions were reached by the trial judge in relation to the injuries to Mr Cuthbertson's chest and upper body and in concluding that Mr Cuthbertson was run over and that his head was 'banged' into the roadway.

81 The trial judge accepted, and in the end it seems to me to have been common ground between the parties, that Mr Cuthbertson was run over in the area of his chest by the driver's side wheel of the trailer. The injuries which he suffered were consistent with that.

82 Mr Cuthbertson was found lying with his head on the centre line. When the ambulance attendants removed his white helmet it was apparently undamaged at the front but there was a large impact mark the size of a cricket ball on the back of the helmet and some helmet debris on the road.[27] The trial judge found that the white plastic residue which Mr Marshall prised out of the yellow centre line, at the point which Mr Lamb had identified as the place where he found Mr Cuthbertson, was from Mr Cuthbertson's helmet.[28] At trial, a submission was made on behalf of Mr Cuthbertson as to the inference to be drawn from these facts. The submission was that the injuries suffered, the damage to the helmet, and the place where plastic residue was found, ought to lead to the inference that Mr Cuthbertson's helmeted head hit the centre line at the time of impact with the trailer. It was suggested that the wheel ran over the plaintiff's chest and in the course of that process his head 'got smacked into the road'.[29]

83 The judge reviewed the medical evidence and other relevant evidence and concluded: '... It seems to me to be probable that the wheel of the trailer ran over the plaintiff's chest and that his head was banged into the roadway as part of this occurring'.[30]

84 In my view, the inference which the judge drew was open to be drawn. I do not consider that the trial judge made an error by drawing it.

85 The assertions in the grounds of appeal that the trial judge was wrong to rely on the position of Mr Cuthbertson, as he had found it to be, and the position of the motor cycle, are also incorrect, in my view. Certainly, in isolation, they could not have established that the F100 was on the wrong side of the road, but taken together with the other factors, and, in particular, the acceptance of Mr Lamb's evidence, they were relevant facts to be taken into account.

86 The suggestion in the grounds of appeal that the trial judge's statement that it was impossible to say whether Mr Cuthbertson was still moving when struck by the wheel of the trailer or whether his slide had ceased fractionally before or simultaneously with the impact, was against the evidence of Mr Marshall, is also incorrect, in my view.

87 The relevant passage in Mr Marshall's cross-examination reads as follows:

As far as the plaintiff is concerned, you're prepared to assume - let's assume that the road at this point runs north and south - - - ? - - - Yes.

• • • that the plaintiff was at some stage prior to his being hit sliding in a general north-easterly direction? - - - Yes.

It has to be that way, doesn't it? Because that's the only way the trailer can run over. He's got to slide under the southbound vehicle, or more accurately under the trailer of the southbound vehicle, because otherwise he'd be hit by the F100 itself. Correct? - - - That's correct, yes.

So there's no scope for an inference that prior to being hit the plaintiff was stationary, is there? - - - No, I don't believe so.

It can't happen though, can it? - - - No.

Because had he been stationary for even a split second he would have got run over by the truck? - - - The towing vehicle, yes.

So it's absolutely clear, whatever happened before and wherever he was when he got hit, when he was hit he was sliding in a north-easterly direction? - - - Yes.

88 In re-examination the following evidence was given:

Let's just assume a southbound vehicle with trailer, in what circumstances might it be that somebody can come into collision with the trailer and not the car that's pulling the trailer? - - - If we assume that the trailer tracks truly behind the tow vehicle, the F100, which it almost certainly would, the only way that the collision can occur with the trailer and not the F100 is if the rider is sliding into the path of the F100.

HIS HONOUR: So he slides behind the F100? - - - Yes, he fortunately is not run over by the F100, but unfortunately is run over by the trailer. Yes.

MR GORTON: A matter of timing, if you like. By the time the rider gets there, the car's gone and the trailer's there? - - - Yes, yes.

89 The trial judge accepted that Mr Cuthbertson came off his motor cycle and slid a short distance under the trailer. He went on to observe that it was impossible to say whether he was still moving when struck by the wheel of the trailer or whether his slide ceased fractionally before or simultaneously with the impact.[31]

90 In my view there is no error in what the judge said and there is no inconsistency between what he said and Mr Marshall's evidence. The point Mr Marshall was making was that because Mr Cuthbertson was struck by the trailer

and not the F100 a conclusion had to be drawn that he had slid past the F100 and under the trailer. He never said that it was impossible that that slide might have ceased fractionally before or simultaneously with the impact and, on my reading of his evidence, that possibility is not inconsistent with what Mr Marshall was saying. In any event, the issue has no significance whatsoever in the determination of the case. The appellant's case was that Mr Cuthbertson slid to the point of impact. The trial judge accepted that. It has no significance whether the slide ceased fractionally before or simultaneously with the impact, or whether he was still sliding at the point of impact, in which case I would have thought that the slide must necessarily have ceased.

91 As to the matters which it is said the trial judge failed to take into account, the short answer is that he did take them into account. He referred to all of them in his judgment.

92 In my view this was a thorough and careful judgment. The trial judge decided the case on the particular basis that at the point of impact the F100 and the trailer were over the centre line. It has not been demonstrated that he made any error in doing so, or that he failed to adequately set out his reasons.

93 I would reject all of the grounds of appeal relied upon. In my view the appeal should be dismissed.

94 I have read the reasons of Whelan JA in draft form. I also agree with those reasons, and with the order which his Honour proposes.

[3] Reasons [62], [66], [67], [77]-[80].

[5] Report of Forensic Consulting Services Pty Ltd 25 August 2009 - Exhibit H.

[7] As explained above, the judge sometimes confused the compass points but his intention is clear.

[8] [2003] HCA 22; [2003] 214 CLR 118.

[9] [2006] HCA 1 ('Maddalena').

[10] Fox v Percy [2003] HCA 22; [2003] 214 CLR 118, 125 [23] per Gleeson CJ, Gummow and Kirby JJ.

[12] It is in this area where differences of view, or of emphasis, are apparent. McHugh J In Abalos v Australia Postal Commission [1990] HCA 47; (1990) 171 CLR 167, 178-9 ('Abalos') and in Fox v Percy, 138-147 [65]-[93] places importance on this consideration, in contrast to the approach of Gleeson CJ and Gummow and Kirby JJ in Fox v Percy at 128-9 [30]-[31], the approach of Callinan J throughout his judgment in Fox v Percy, and Kirby J (with whom Gleeson CJ agreed) in Maddalena at [23]. However, in Maddalena Kirby J did still include 'demeanour or impression of witnesses' as an advantage trial judges enjoy at [17], and Callinan J, notwithstanding his approach in Fox v Percy, joined with Heydon J in Maddalena in deciding that that was a case where 'the subtle influence of demeanour' was critical. This phrase was one which had been used by McHugh J in Abalos and which was referred by Kirby J in Maddalena at [180] in what might be thought to be dismissive terms.

[13] Fox v Percy [2003] HCA 22; [2003] 214 CLR 118, 125-6 [23] per Gleeson CJ, Gummow and Kirby JJ and 138-147 [65]-[93] per McHugh J. Maddalena [2006] HCA 1, [17] per Kirby J (with whom Gleeson CJ agreed).

[14] Fox v Percy [2003] HCA 22; [2003] 214 CLR 118, 163 [142] per Callinan J; Maddalena [2006] HCA 1, [180] per Callinan and Heydon JJ.

[22] This is an error. The judge meant west.

[23] ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31, [78]-[82].

[26] Fox v Percy [2003] HCA 22; [2003] 214 CLR 118, 130 [36].