Conclusions of the Magistrate
80Following a review of the evidence, including in particular, the matters to which I have referred above, his Honour referred to certain inconsistencies in the evidence provided by Mr Lee and Mr Midgley and also equally noted that there were inconsistencies in the evidence of Mr Walker.
81The learned Magistrate stated that he was not of the view that the inconsistencies in the evidence, so far as Mr Lee was concerned, impugned his evidence or damaged his credibility. That was clearly a finding of credit favourable to Mr Lee. It is clear that the Magistrate's acceptance of Mr Lee was, at least in part, due to the independent evidence of Mr Midgley.
82Whilst his Honour noted that Mr Midgley gave evidence as to some "memory issues" that he had following an accident of his own, those deficits were largely confined to remembering dates and times. It is clear that the Magistrate accepted Mr Midgley's version of events, noting that his more detailed version was consistent with Mr Lee's version, which was accepted.
83The factual account given by Mr Lee was, in fact, fully corroborated in detail by Mr Midgley on all relevant matters. Although both were cross-examined on various aspects suggesting possible unreliability in their respective observations of events preceding the accident and on the subject of the gouge mark and the fluid stain on the roadway, this was a case in which the Court below, not surprisingly, searched for a means of resolving the conflict by looking at all of the circumstances including the evidence of the corroborating witness.
84As earlier noted, from the earliest time, Mr Lee provided an account to Sergeant Synott whilst he was still in hospital after the accident and that account was consistent with the evidence he gave to the Local Court.
85The Magistrate was entitled to weigh in the balance the fact that, whilst it might be expected that Mr Walker would have said something to Mr Midgley had Mr Lee been on the incorrect side of the road, he did not but referred only to the speed of Mr Lee. Silence in those circumstances would constitute some evidence a tribunal of fact would be entitled to bring into the balance in determining, on the balance of probabilities, the facts of the accident.
86In determining the probabilities and the consistency of the account given by Mr Lee and Mr Midgley, the Court was entitled to consider the surrounding circumstances including the relatively narrow road, the tight corner, the fact that the horse trailer was wider than the four-wheel drive vehicle and the fact that, without due care being exercised, the trailer wheels could easily move over the centre line as it rounded the curve. These, of course, are only incidental factual maters that are consistent with the plaintiff's version. It is clear that the Magistrate did have some regard to these circumstances and was fully entitled to do so in determining the ultimate fact in issue.
87Although Mr Walker photographed the gouge mark to which he referred in his statement and evidence soon after the accident, as I have earlier stated, he did not provide any evidence as to any points of reference or corroborative material that established that the mark was in fact at or near the precise point of impact between the two vehicles. It is clear, of course, that he assumed that the mark was related to the collision but there would be need for some evidence to corroborate that his assumption was correct.
88The location of the gouge mark has to be considered in the total context of the evidence as to the dynamics of the accident and the path which the motorcycle took following impact. The description given by Mr Midgley is that the cycle made contact with the right mud guard of the horse trailer and immediately on contact catapulted or somersaulted and, at some point, made contact with the road surface some distance away and eventually at a point of rest that was depicted in the photographs.
89Mr Midgley, in his statement (paragraph 11) described the events:-
"... It was only that the trailer was on the wrong side of the road that the impact happened. It was a heavy impact and Andrew came off the bike, cart wheeling down the roadway ..."
90In oral evidence, he was asked as to what happened at the point of collision. He said that the bike "somersaulted" (TB103). He was referred to his statement when he said the bike went off to its left and landed on the left side edge of the correct lane to which Mr Midgley said, "Yeah, after it somersaulted" .
91He said he saw oil and other debris "everywhere" . When asked where, he replied, "Where the bike ended - where the bike was just lying there, there was bits and pieces from the corner spread right down around the, around the - from way back up here right round there was bits and pieces everywhere" (TB104).
92He was then asked, apart from where the bike ended up, whether he recalled seeing oil at any other place on the road. He responded, "No, not really, I didn't, I didn't sort of have much of a look for it" (TB105).
93I have earlier referred to observations made by the Magistrate in the course of his Honour's reasons. At the conclusion of his analysis, the learned Magistrate stated (TB139):-
"... Taking into account the width of the trailer, the narrow road, the windy road and the evidence of the defendant that when he first saw the plaintiff's motorcycle it was in the plaintiff's lane of travel, not on the incorrect side of the road, given the short distance or given the very short time frame between first seeing the motorcycle and the point of impact, I am of the view that the plaintiff's motorcycle was on its correct side of travel. I cannot be satisfied on the balance of probabilities, and whilst it is not for the defendant to prove anything, I cannot be satisfied that the gouge mark was caused in this collision. I am of the view the evidence establishes that the wheels of the defendant's trailer, whilst he firmly believes otherwise, did cross onto the wrong side of the road that was the cause of the collision ..."
94I am of the opinion that Mr Walker's observation that he saw a gouge mark and fluid stains on the roadway, without more, did not establish that those matters had, in fact, resulted from the particular collision in question. It is clear, based on Mr Midgley's account, that after the cycle catapulted or somersaulted, it then landed some distance to a point shown in the photograph where Mr Midgley identified there was much debris strewn about in that location.
95The question of the gauge mark and the stain on the roadway was not a matter overlooked by the Magistrate. Indeed, his Honour gave it specific attention and referred to relevant evidence when examining its possible significance.
96There was, in my opinion, a sound basis for the Magistrate's conclusion that it had not been established that the gouge mark was a result of the subject accident. Even if his decision was wrong as a matter of fact (which, as I have stated in my opinion, it was not), no question of law could thereby arise.
97Whilst expert evidence as to physical evidence found at an accident scene can be of assistance in reconstructing pre-accident events, the evidence was, not in my opinion, such as to require a finding or a conclusion contrary to that which the learned Magistrate determined. Indeed, upon a close review of the evidence, I am of the view that the fact finding process and conclusions expressed by the Magistrate are beyond criticism.
98It is unnecessary here to review the well-known principles enunciated in Soulemezis (supra) and cases that have applied those principles. It is unnecessary in a case such as the present involving a collision between two vehicles for a Magistrate to give an elaborate discussion of the evidence and the issues raised in the course of cross-examination of the witnesses.
99Furthermore, I do not consider that the appellant has identified a question of law or an error concerning such a question.
100In Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139, Glass JA stated (at 156):-
"... To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal ...
A finding of fact in the Commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date. Further, an ultimate finding of fact, even in the absence of misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made ..."
101I have determined that the following orders should be made:-
(1) Appeal dismissed.
(2) Unless application is made within 14 days seeking any contrary order on costs, the appellant is to pay the respondent's costs of and incidental to the appeal.
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Decision last updated: 04 March 2011