WILLIAMS v McFARLANE

HELD: (Powell JA, Clarke JA concurring; Kirby P dissenting): Leave to raise fresh ground of appeal should be refused - as no other ground going to liability was pursued, verdict at trial in favour of respondent affirmed and appeal dismissed.

Mummery v Irvings (1956) 96 CLR 99; Maloney v Commissioner for Railways (NSW) (1928) 52 ALJR 292 (HC) distinguished; Leotta v Public Transport Commission (1976) 50 ALJR 666 (HC); Suttor v Gundowda Pty Ltd (1950) blank CLR 81; Coulton and Ors v Holcombe and Ors (1986) 162 CLR 1; and Water Board v Moustakas (1988) 180 CLR 491 applied; Chouman v Margoules, Court of Appeal (NSW), unreported, 24 June 1993 discussed by Kirby P.

NEGLIGENCE - motor vehicles - person claims injury whilst pedestrian caused by impact of motor cycle - motor cyclist pleads that injured person was intoxicated passenger who accepted risk - judge disbelieves injured person and dismisses claim - whether, upon hypotheses that defence made out, judge ought to have considered, notwithstanding, the possible entitlement of the injured person to some damages - whether, for default of such consideration, a new trial should be ordered - held: (Powell JA, Clarke JA concurring; Kirby P dissenting): No new trial ordered - application for leave to raise ground not advanced at trial refused - appeal dismissed.

Mummery v Irvings (1956) 96 CLR 99 distinguished; Water Board v Moustakas (1988) 180 CLR 491 applied.

1.Motion to for leave to add a ground of appeal, refused; and

Kirby P This appeal concerns the approach of the Court to a claim that, in the exceptional circumstances of the case, the interests of justice require a new trial on an issue of fact not litigated at the first trial.

A CLAIM OF MOTOR VEHICLE NEGLIGENCE IS REJECTED The basic facts are contained in the reasons for judgment of Powell JA (with whom Clarke JA concurs). I will not repeat what his Honour has there said.

Mr Scott Williams (the appellant) was undoubtedly injured on a public road on 3 July 1987, viz in Oatley Avenue, Oatley. That much was not in doubt. What was in doubt was how the appellant's injuries were caused:

a) Whether they arose when he was struck, whilst a pedestrian, by a motor cycle driven by Mr Gordon McFarlane (the respondent). That is how he pleaded his case, asserting that he was lawfully crossing Oatley Road when the collision occurred. That is how he gave his oral evidence at the trial in the District Court before HH Bell DCJ;

b) Whether they arose whilst he was a voluntary pillion passenger on a motor cycle driven by a person whose ability to drive the vehicle was impaired by consumption of alcohol of which impairment the [appellant] was aware, or ought to have been aware. This is how the respondent, presented his defence. He denied negligence on the basis asserted by the appellant, pleading a defence of contributory negligence.

On the face of the pleadings, therefore, the issues for trial did not, as such, present a question whether the appellant's injuries arose out of the use of the respondent's motor vehicle. Indeed, that much was common ground between the respective pleadings of the parties. The dispute presented for resolution on the pleading was whether, at the time of the collision, the appellant was a pedestrian (as he claimed) or a pillion passenger (as the respondent asserted). Of course, the appellant was put to the proof of his claim in the normal way.

The evidence supporting the respondent's version was substantial. It comprised:

(i) A Transcover claim form (exhibit 6) signed by the appellant's uncle;

(ii) The Intermediate Transport Accident Claim Form (exhibit 1) which referred to the initial Transcover claim form;

(iii) The P4 Traffic Collision Report of the New South Wales Police Service which was annexed to the Intermediate Transport Accident Claim Form;

(iv) The statement of the appellant to an investigator, Mr Ellis, on 31 October 1987, ie three months after the incident; and

(v) The oral evidence of Senior Constable Heard, who was, at the relevant time, a senior investigator, lecturer and instructor in the Accident Investigation Squad of the New South Wales Police. In the face of this contemporaneous and objective evidence, as well as his impressions of the appellant, it is little wonder that HH Bell DCJ concluded that he could not rely upon the testimony of the appellant. He said:

"To my mind [the] circumstantial evidence does not support the plaintiff's case. It falls short, however, of establishing clearly that he was a pillion passenger. The most that can be said of it is that it seems somewhat more consistent with that version than with the plaintiff's version. If the defendant's submissions were inconsistent with some credible sworn evidence I would prefer the latter, but for the reasons given I do not find the sworn evidence of the plaintiff to be credible and there will therefore be a verdict for the defendant."

From the judgment which followed the foregoing verdict, the appellant appealed to this Court. Initially, his appeal relied, as the notice of appeal shows, upon a number of complaints about the way in which HH Bell DCJ conducted the trial, admitted evidence or misunderstood the evidence. However, when the

matter came before this Court, the hopelessness of those grounds of appeal was candidly accepted by counsel appearing for the appellant in this Court (who were not counsel at the trial). Instead, an application was made to amend the grounds of appeal to add an additional, new ground, upon which only the appellant moved for a retrial:

"15. His Honour should have entered judgment for the appellant on the basis that the evidence before him established that the appellant was either a pedestrian who was injured when he was struck by the motor vehicle negligently ridden by the respondent or was a pillion passenger on the motor vehicle who was injured by reason of the negligent riding of the respondent and in either case the appellant was entitled to succeed."

The respondent opposed the application to amend. He complained that it presented the Court with an entirely new and different case from that which had been presented for the appellant at trial. It would be to impose upon the respondent a procedural unfairness in the relevant sense, to permit the case to be presented on appeal in such a different way. This Court, in obedience to the authority of the High Court of Australia, should decline that attempt. Reliance was placed upon the well known decisions of the High Court in Coulton and Ors v Holcombe and Ors (1986) 162 CLR 1, 7 and Water Board v Moustakas (1988) 180 CLR 491, 497.

In the lastmentioned case Mason CJ, Wilson, Brennan and Dawson JJ said:

"More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a Court of Appeal may find it expedient and in the interests of justice to entertain the point, otherwise the rule is strictly applied."

For the respondent, it was submitted that, had the appellant advanced such a different case, he might have been tested by cross-examination. Moreover, the inconsistencies between his competing versions would have been tested by questioning. The very presentation of the two versions would have led to questions and submissions designed to show that the appellant was not to be believed at all. If he was uncertain, or would support alternative cases then, perhaps, his entire story was a concoction and he was injured in some other, different way, neither as a pedestrian nor as a pillion passenger. To support this proposition, the respondent relied upon the passage in the reasons of HH Bell DCJ cited above.

The principles applicable to this appeal are not really in doubt. What is difficult is the application of them to the facts of this case:

1. Normally, under the modern remit, amendments to pleading will be permitted in order that the Court may, in the one proceeding, dispose of all issues in controversy between the parties. The formerly rigid approach to the amendment of pleading, including notices of appeal, has been replaced, under statutory stimulus, by a more flexible approach designed to permit courts to get at the justice of the case, as defined by law. But to consider whether a pleading amendment is allowed, it is necessary to judge whether it has utility. If it leads nowhere, because the point of the amendment is doomed to fail, the Court will reject it;

2. The principle behind Holcombe, Moustakis and other like cases is basically that of due process of law. It also rests upon the defence, by appellate courts, of the finality of primary decision-making. If a party could run a trial in a particular way and then, having lost, present a new and different case on appeal, the other party would be forced to fight the new battle without the facilities of evidence and submission which would have been available at trial. Moreover, the important principle of finality, which the High Court has been at pains to support in many fields, would be undermined. The further rule which encourages, and requires, competence on the part of legal representatives, would be undermined. No trial would be safely final. Rehearings on appeal would expand into effectively, second trials, presenting a great mischief to the administration of justice;

3. Nevertheless, in keeping with rational and more flexible modern procedures, certain exceptions are acknowledged to mollify a strict or rigid application of the foregoing rules:

(a) where the point raised is solely one of construction or of law upon proved facts. See Holcombe, 7; Moustakis, 497;

(b) where all relevant facts have been established beyond controversy and what is involved is no more than argument of law or of facts based upon the facts proved and accepted;;

(c) where, in a very exceptional case.... "the interests of justice... require a new trial". See Maloney v Commissioner for Railways (NSW), (1978) 52 ALJR 292 (HC), 294; and

(d) (Semble) where the Court comes to the conclusion that the first trial has not been properly and competently presented so that a new trial must be had to avoid a risk of serious injustice to the appellant. This ground (d) is really a category, or illustration, of (c).

The existence of truly "exceptional cases" is acknowledged in terms by Jacobs J in Maloney, 294. It is accepted by Gibbs CJ, Wilson, Brennan and Dawson JJ in Coulton (above), 8 endorsing what was said in University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 (HC), 483. It is reflected in Gaudron J's (dissenting) opinion in Moustakas (above) at 501. Her Honour expressed the view as "an exception to the general rule enunciated in Suttor vy Gundowda Pty Ltd" which had not "been excluded by any subsequent decision of this Court".

Unfortunately, the kind of case where such an injustice will ordinarily arise is precisely one in which the fundamental rule of holding a party to the presentation of the case at trial by that party's legal representative is undermined. Where that representative makes a fundamental mistake or displays a basic departure from the obvious requirements of the case, it is to stretch too far the rule that a client is bound by the lawyer's conduct to permit that beneficial and necessary rule to become an instrument of masking or condoning the serious injustice.

In Chouman v Margules, Court of Appeal (NSW), unreported, 24 June 1993 (Priestley JA agreeing with my orders) I referred to the developments in the area of criminal law and procedure and derived a principle applicable equally to civil trials (at 10):

"Normally, a party is bound by the way in which his or her counsel conducts a trial on his or her behalf: This is our system of justice. It is necessary to the efficient administration of justice. Our form of advocacy trial could not really work effectively under a different rule. So long as the legal representative's mandate is unrecalled and is performed bona fide according to the judgment of the advocate, the conduct of the trial by the advocate will bind the client. See Batchelor v Pattison and Mackersy (1876) 3 R (Ct of Sess) 914. Specifically, a

barrister ordinarily enjoys *complete control over the way in which the case is conducted". See Halsbury's Laws of England, 4th ed, vol 3, (1), para518 and para420. In the Court of Criminal Appeal, it has been recognised that inadvertence on the part of an advocate, or plain incompetence in the presentation of a criminal trial, can, in certain circumstances, require the intervention of the Court in order to avoid the risk of a miscarriage of justice. See eg R v McCall (1920) 20 SR (NSW) 467, 472; (1920) 37 WN (NSW), 189, 192 (FC); R v Birks (1990) 19 NSWLR 677 (CCA) at 684; Re Knowles [1984] VR 751 (FC); and R v Ensor [1989] 1 WLR 497 (CA). This jurisdiction is, however, exercised most cautiously. As Gleeson CJ pointed out in Birks (above), at 685, it is exercised with the full appreciation of the way in which "the system of criminal justice operates". The mere fact that a mistake or unwise decision in the conduct of a trial is made on behalf of a client by an advocate will not, without more, justify the setting aside of a conviction to avoid a miscarriage of justice. If this is so in a criminal trial where liberty and reputation are at stake, it is clearly so in civil trials. See eg Burchett v Kane [1980] 2 NSWLR 266 (CA), 268; Seaton v Burnand [1900] AC 135 (HL), 141; Skrzypkowski v Silvan Investments [1963] 1 WLR 525 (CA). Although an appellate court stands as a guardian against serious injustices occasioned by oversight or incompetent representation, its stewardship is exercised within a legal system which depends upon trained advocates who are not admitted to practise law unless and until their basic qualifications and training are verified."

In the event, in Chouman, I did not have to resolve the point discussed above. T held that the relevant error was that of the trial judge and that this caused the trial to miscarry. In the instant case, there was no error on the part of the trial judge. The appellant presented a simple, clear-cut case. He was not believed. So the issue in Chouman is squarely presented.

This case, clearly enough, does not fall within the usual exceptions to the basic tule of due process. Thus, it is not an appeal involving issues of construction or of law. Nor do I believe that it is a case where all of the facts are incontrovertibly before the Court such that this Court would just as well reach a conclusion upon them, as reported in the transcript, as the primary judge did.

Therefore, the only basis, for the Court's intervention in this appeal is the residual, exceptional power to prevent a serious miscarriage of justice in a case which is still alive before the courts and which persuades, an appellate court, exceptionally, to order a retrial. I fully realise that this jurisdiction is, as it should and must be, wholly exceptional. I acknowledge the strong arguments for finality of litigation and the powerful policy arguments for holding parties to the way in which their legal representatives present their cases at trial. Why then have I concluded that this is a case where the exceptional order shall be made?

First, the purpose of the residual power to order a retrial must be considered. This is to prevent a serious injustice which it is still within the power of a court to prevent. Our legal system is not one which upholds, at all costs, idiosyncratic or personal opinions of justice. It is more disciplined. The justice which the law offers is justice according to established legal rules. Those rules include rules defensive of finality, due process and lawyerly authority and competence. But where, through oversight or incompetence an important, even crucial, consideration in a case has been overlooked, the Court is not confronted with a purely mechanical problem. It can either ignore the error and satisfy itself by reference to the competing principles. Or it can submit to what it feels are the

insistent demands of justice. Upon such questions views will inevitably differ, as they do in this case. As they did in Holcombe, in the High Court. But each judge must give effect to his or her conscientious opinion of what the demands of justice require. In my opinion, in this case, they require a retrial;

Obviously, the more serious the apparent error, the more grave the consequences for the party affected and the more substantial the issues at stake in the litigation, the more likely will it be that the appellate court will intervene to prevent an apparent injustice. Thus, a case presenting a dubious error; or one involving a decision apparently deliberate and of a tactical kind on the part of the litigant; or one in which the amounts or issues at stake are small, will not normally excite the intervention of the appellate court. In the present case, the course adopted does seem to have flowed from a deliberate decision of the appellant himself. It was he who gave instructions to his legal representatives. Those instructions are explained in his present counsel's written submissions as probably having been grounded upon an apparent attempt to enhance his claim and to avoid the consequences which might flow from a finding of intoxication on his and his driver's part. But the appellant was seriously injured. He suffered a great disruption of his earnings and earning capacity. He had little formal education. He was 22 years of age at the time of his injury. Clearly, the injury had a profound affect upon him and serious consequences for his future life. The appeal must be approached keeping these considerations in mind;

If a claim arises out of the use of a motor vehicle on a public street, the injured party's claim will give rise to a claim for damages, if negligence on the part of the driver of a motor vehicle can be proved. To that extent, the version given by the appellant or asserted in his defence by the respondent, would not deprive the appellant of his entitlement to recover damages. Even an intoxicated pillion passenger would be entitled to expect a motor cycle rider to take reasonable care to avoid injuring him. The latter would have a greater control over the risks of inflicting profound consequences upon the former than vice versa;

Although HH Bell DCJ stated that the evidence fell short of establishing clearly that the appellant was a pillion passenger at the time of injury, the pleading, the evidence, and the conduct of the case suggests that that was, in fact, the only alternative explanation seriously offered at the trial to explain the appellant's injuries. The introduction of systems of compulsory motor vehicle (and employers' liability) insurance have not altered the obligation of a plaintiff to prove how his or her accident occurred and that it arose out of negligence on the part of the driver of the motor vehicle. But it is difficult to deny that the existence of compulsory insurance has affected the definition and boundaries of the common law cause of action in negligence. Not only has it stimulated many claims at litigation which would not otherwise been brought. It has also engendered community expectations which, in turn, stimulate many proceedings. This is a natural development of the common law in harmony with the statutory law with which it must interact. Indeed, it would be surprising if the common law did not adapt, in this way, to its environment. All of this is to say that the community now expects (and court decisions reflect this fact) that, if a person is injured, especially seriously, in circumstances which arise out of the use of a motor vehicle on a public street then, so long as some degree of fault of the motorist is established, the injured person will recover damages. He or she will, in fact do so from the compulsory third party insurer. The form of the action remains one of negligence. But the reality and context are affected by the

foregoing. Thus, if the appellant could show, notwithstanding the case he presented at trial that, even if the respondent's case were accepted, he was entitled to recover some damages, this consideration would have to be taken into account by the judge before rejecting his claim entirely. A legal practitioner of reasonable competence, presenting his case, would have put this point, in the alternative. It does not appear that it was put in this trial. The only hint that it was ever considered lies in the passage from the reasons of HH Bell DCJ cited above. Yet that passage is concerned with whether the respondent had clearly established his defence of contributory negligence. An alternative case for the appellant, not having been pleaded or (apparently) advocated, was not expressly considered by the primary judge;

The appellant's entitlement to damages should be considered free of any inclination to punish him, in these proceedings, for giving a false version to the trial court of how his injuries were received. If the ultimate conclusion is that the appellant was injured in a way other than as he deposed in his sworn evidence, the law provides other sanctions to punish persons for false testimony to a court. Those sanctions incorporate special procedural safeguards. The purpose of the present proceedings is purely compensatory. That purpose should be kept steadily in mind; and

The ultimate question, therefore, is whether a proper interpretation of the conduct and outcome of the trial in this case is that a third possible cause of the appellant's injuries (ie that it did not arise out of the use of the motor vehicle of the respondent) could not be excluded or whether, as the appellant asserted, the only real choice presented to the primary judge was between injury as a pedestrian or injury as a passenger on the motor cycle.

I have already pointed out that the respondent's pleadings did not raise the third possibility. On the contrary, it pleaded the passenger cause. My reading of the transcript of the trial suggests that this was also the way in which the case was conducted at trial for the respondent. Moreover, the objective evidence strongly suggested that the choice to be made was between the competing hypotheses advanced in the parties' respective pleadings and cases. The scuff marks, scrapes and tyre burns of the motor cycle, before it came to rest in the gutter, described a generally straight line for a distance of 72 metres. The marks ran from north to south. The appellant, on reliable evidence, was found lying on the road 14 metres south of the start of the marks. The respondent was found 42 metres from the start of the marks. These facts may be deduced from the evidence of Mr Gilding who was the first witness to arrive at the scene as well as from the evidence of Senior Constable Heard and the statement of Constable Wagoner. Because Mr Gilding reached the scene immediately after the crash, there was no suggestion in the evidence that the accident had resulted from the operation of any mechanism other than the motor-cycle of the respondent. It is in this way that the evidence and submissions before HH Bell DCJ posed, in fact, the competing contentions of the happening of the appellant's injuries.

The primary judge should have been invited to turn his mind to the question whether he accepted that the appellant had proved his case. If not, the question was posed whether there was any real possibility of a third explanation of how the appellant was injured? If not, the question remained whether, upon the motor-cycle passenger theory advanced for the respondent, the appellant was nonetheless entitled to some recovery. His Honour did not consider these questions in that way. Undoubtedly, this was because the legal representative for

the appellant at trial failed to direct his attention to all relevant considerations, including the one now advanced in this Court in the appeal.

This is not a case as many (or most) are, where the fundamental issue advanced in the appeal was not fairly and fully put at the trial. Because the respondent had pleaded the passenger theory, in support of his defence of contributory negligence, the respondent was able to, and did, call all evidence relevant to that hypothesis, available at the time of the trial.

The only evidence which the respondent did not have available to him at that time concerned the effect of the blood alcohol reading of 0.112 of the respondent and what effect this would have had on his physical capacities. But the reason such evidence was not available was because the respondent had failed to serve the relevant medical report upon the appellant as required by law. Thus no valid complaint could be made by the respondent concerning the exclusion of that evidence. Any such complaint is unconnected with any new point advanced, for the first time, in the appeal. The only other witness who might have helped the respondent's case and was not called, was the respondent himself. But his absence was explained by the evidence of a private inquiry agent, Ms Johns. She deposed to many unsuccessful enquiries on behalf of the compulsory insurer in an attempt to find the respondent. Thus, nothing in the case advanced in the appeal is such as to give rise to a legitimate complaint on behalf of the respondent that he has been denied a chance to call factual evidence relevant to the proof of the passenger theory. All evidence relevant to the competing theories is before this Court as it was before HH Bell DCJ.

I do not say that this is an easy case or that the decision is clear. The application of the principle forbidding an attempt to recast the case on appeal is understandable enough at first blush. It produces the result favoured by the majority. But when one looks beyond initial impressions, the failure of the first trial becomes increasingly apparent. The basic failure was that of the then representative of the appellant in omitting to urge upon the primary judge that the appellant was entitled to succeed, even if the respondent made out his defence of contributory negligence. He was, even then, entitled to a verdict on the basis that he had pleaded, viz negligence. This failure effectively led the primary judge to omit consideration of the possibilities. In my view, that omission resulted in a serious injustice to the appellant whose damage is substantial.

Because the respondent had posed the particular case now relied upon by the appellant, and had the opportunity to bring all evidence relevant to that case, no procedural unfairness is done by now considering it in this Court. But there is a risk of serious injustice to the appellant in a failure to consider the case in the way now advanced.

This Court cannot resolve the disputes which remain. It has not seen the witnesses. But it can cure the injustice identified by requiring a retrial. Because the failure of the first trial was effectively caused by the way the appellant gave evidence and the way in which his representative presented his case, it would be appropriate to deprive the appellant of any costs of the first trial, whatever the outcome of a second trial. He should pay those costs. But the appellant should have the second trial he seeks so that the judge conducting it can turn his or her attention to the possibilities raised for the first time in this Court. The outcome might be the same. But at least, then, justice will have been done, manifestly. The risk of a serious miscarriage of justice will be avoided.

2. Set aside the judgment in favour of the respondent entered by his Honour Judge HH Bell;

3. In lieu thereof, order that the proceedings be returned to the District Court for retrial;

4. Order that the plaintiff pay the defendant's costs of the first trial, whatever the outcome of the second trial;

5. Order that the respondent pay the appellant's costs of the appeal but to have, if otherwise so qualified, a certificate under the Suitors' Fund Act 1951.

Clarke JA For the reasons given by Powell JA I agree that the appeal should be dismissed.

Powell J The first question to be decided in relation to this appeal is whether, as has been sought by the Appellant, he ought to be granted leave to raise a fresh ground of appeal, it being accepted by counsel for the Appellant, who has indicated that he does not seek to support any of the grounds of appeal relating to liability originally taken on behalf of the Appellant, that, unless that leave be granted, the appeal must necessarily be dismissed. Not surprisingly, the application for leave to add the additional ground of appeal is strongly opposed by the Respondent, primarily upon the ground that, if the leave be granted, the Appellant would thereby be permitted to raise a case which not only had he not sought to raise at the trial, but, when, at the trial, it had been raised against him by the Respondent, he had expressly denied it.

Mr BMJ Toomey QC, who appeared with Mr FD Curtis on the hearing of the appeal - neither of them having appeared for the Appellant at the trial - while accepting that, in the normal course, a party should not be permitted to raise, on appeal, a case which he did not seek to raise at the trial, nonetheless sought to avoid the application of that general rule to the present case by submitting:

1. (a)in the proceedings the Appellant sought to recover against the Respondent damages for injuries which he had sustained as the result of the Respondent's use of a motor cycle on a public street;

(b) while the Appellant's case at the trial - which case was denied by the Respondent - was that he had been run down by the Respondent while crossing the public street, the Respondent, at the trial, in addition to denying the Plaintiff's case, sought to raise a case of contributory negligence, that case being based (inter alia) upon an assertion that, far from being a pedestrian, the Appellant had been a pillion passenger on the motor cycle, that each of the Appellant and the Respondent was heavily affected by alcohol, and that, in addition, the Appellant, although a pillion passenger, had failed to wear a protective helmet;

(c) there being - so the submission ran - no dispute but that the Appellant's injuries arose out of the use of the motor cycle, and there having been offered only two explanations - that is, that the Appellant was run down by the motor cycle, or, that he was thrown off the motor cycle while a pillion passenger - of the manner in which the Appellant came to sustain his injuries, it was clear that, whatever version of the facts be correct, the Respondent, at the relevant time, had ridden the motor cycle in a negligent fashion;

(d) that, in the circumstances, the trial judge had no alternative but to find a verdict for the Appellant.

2. the failure of the Appellant's then counsel - which failure, so it was submitted evidenced incompetent representation - to draw to the attention of the trial judge what - so it was submitted - was the Appellant's entitlement to a

verdict whatever version of the facts be found, led to a serious injustice which this court ought not to permit to go unrectified.

In seeking to oppose the grant of the leave sought by the Appellant, Mr HM di Suvero - who had not appeared for the Respondent at the trial - relied upon the following matters:-

1. although it was, in a broad general sense, possible to categorise the Appellant's claim at trial as a claim to recover damages for injuries sustained as the result of the negligent use of a motor cycle, the breach of duty advanced at the trial by the Appellant was that of the failure of a motor cycle rider to take care to avoid injuring a pedestrian on a public roadway, rather than the failure of a motor cycle rider to take reasonable care for the safety of a pillion passenger on his motor cycle;

2. this was made clear by the form the Appellant's Statement of Claim, the Appellant's counsel's opening at the trial and the manner of conduct of the Appellant's case at trial - neither in his Statement of Claim, nor at trial, did the Appellant seek to raise an alternative case;

3. it was obvious that - for reasons which could readily be understood - the manner in which the Appellant's case was framed and conducted at trial, was the result of a deliberate strategic decision and not due to oversight or incompetence;

4. that being so, there are no exceptional circumstances in this case which would justify a departure from the general rule.

In the Statement of Claim which was filed on his behalf on 15th June 1990, the Appellant's claim, so far as is relevant, was pleaded as follows:-

"THE PLAINTIFF PLEADS HIS CAUSE OF ACTION AS FOLLOWS:

On or about the 3 July, 1987 the plaintiff was lawfully crossing Oatley Avenue, Oatley.

At about the same time, date and place the defendant was the owner and rider of motor cycle BF 415, which was being ridden in a southerly direction along Oatley Avenue, Oatley.

Whilst the plaintiff was lawfully crossing Oatley Avenue the defendant caused his motor cycle to collide with the plaintiff.

As a result of the collision the plaintiff suffered injury, loss and damage.

The said collision and resultant injury, loss and damage occasioned by the plaintiff were the result of the negligence of the defendant.

The plaintiff claims damage in respect of such injury, loss and damage. PARTICULARS OF NEGLIGENCE

The Defence which was filed on behalf of the Respondent on 16th October 1990 was in the following terms:-

"1. The allegations contained in paral,para2,para3,para4,para5 and para6 of the Statement of Claim are not admitted.

2. The Defendant denies that the Defendant or the Defendant's agent was guilty of the negligence alleged in the Statement of Claim or any negligence at all.

3. The injuries loss and damage alleged in the Statement of Claim are not admitted.

4. Alternatively it is admitted that the Plaintiff was involved in an accident and the Defendant says that the injuries loss and damage if any suffered by the Plaintiff were suffered as the result partly of the Plaintiff's own fault and contributory negligence.

1. Failure to heed the risks in travelling as a voluntary pillian (sic) passenger on a motor cycle driven by a person whose ability to drive the vehicle was impaired by consumption of alcohol when the plaintiff was aware or ought to have been aware of the impairment.

2. Failure to warn the said driver of the risks involved in driving the vehicle whilst the driver's ability to control the vehicle was affected by consumption of alcohol.

3. Failure to wear a protective helmet securely on the head in contravention of the Motor Traffic Regulations 1935."

Despite para4 of the Defence, and the particulars of contributory negligence which were given, the Appellant's Statement of Claim was not thereafter amended so as to raise an alternative case of negligence in failing to take reasonable care for the safety of the Appellant when a pillion passenger.

When the trial commenced before HH Bell DCJ on 23rd June 1993, the Appellant's then counsel opened the Appellant's case to his Honour in the following way:

"Your Honour, this case arises out of an accident that occurred on 3 July 1987 at approximately 11.40 pm when the plaintiff was lawfully crossing Oatley Avenue, Oatley. He was walking as a pedestrian west when a motorcycle registered number BF 416 was ridden by the defendant, one Gordon Angus McFarlane, south along Oatley Avenue, Oatley, and that cycle came into collision with the plaintiff's person, the plaintiff was thrown down and suffered grievous injury."

Although the trial continued thereafter for a number of days, the Appellant's case did not vary from that which his counsel had opened to HH Bell DCJ, as the following passage at the commencement of the Judgment which his Honour delivered on 30th June 1993 makes clear:-

"The plaintiff was injured in a motor cycle accident on 3 July 1987 and he says that the defendant was the owner and rider of the cycle. There is no doubt that the plaintiff was injured in the accident in question. It is not disputed that injuries were very serious indeed. The issue is whether or not those injuries were sustained as a result of breach of duty owed by the defendant as a cyclist to the plaintiff as a pedestrian. No other basis is pleaded or argued."

The principal witness to give evidence at the trial was the Appellant himself, his evidence extending over a number of days. The Respondent did not give evidence as, despite inquiries which had been made by his third party insurer, his whereabouts could not be located. Although this latter fact would seem to indicate that the task that faced the learned trial judge would have been an easy one, it was not to be so, for the Appellant was extensively cross-examined by counsel then appearing for the Respondent, that cross-examination being based on a number of documents and other records and that cross-examination being directed towards establishing not merely that the Appellant's evidence was unreliable - there were documents indicating that he had earlier told a number of people that he had no recollection whatsoever of what had happened - that at the time of the accident he was heavily intoxicated - there was evidence that he had been drinking in a nearby hotel for some 5 hours or thereabouts and also material

tending to suggest that an analysis of a blood sample taken after the Appellant had been admitted to hospital disclosed that the concentration of alcohol present in the sample was 0.263 grams of alcohol per hundred millilitres of blood - that at the time of the accident, he was riding pillion on the Respondent's motor bike

• there were documents tending to indicate that the Appellant had told one or other of the police officers who were later to attend the scene of the accident that he had been riding pillion on the Respondent's motor cycle when the Respondent lost control - and that at the time of the accident he was not wearing a safety helmet. Throughout his extensive cross- examination, the Appellant steadfastly maintained that the accident occurred when he was run down by the Respondent's motor cycle at a time when he was in the course of crossing Oatley Avenue from east to west so as to gain access to Oatley Railway Station. Although other witnesses were called to give evidence at the trial, those other witnesses including one of the investigating police officers, none of the witnesses who were called had witnessed what had occurred at the relevant time, and none of the investigating police officers - the statements of those who were not called at the trial were nonetheless tendered as exhibits - had at any time been able to take a statement from the Respondent.

The task which thus faced HH Bell DCJ was to determine what credence should be given to the evidence of the Appellant, and, in the event that he was unable to accept the Appellant's evidence, what were the inferences that might legitimately be drawn from the facts which were established by the evidence of others or by the various documents which had been tendered in evidence. In the event, his Honour concluded that he was unable to accept that the evidence which the Appellant gave was based on any genuine recollection of the events of the night in questions. Having then considered the submissions which had been put as to the inferences proper to be drawn from the other evidence, his Honour concluded:- "To my mind that circumstantial evidence does not support the plaintiff's case. It falls short, however, of establishing clearly that he was a pillion passenger. The most that can be said of it is that it seems somewhat more consistent with that version than with the plaintiff's version. If the defendant's submissions were inconsistent with some credible sworn evidence I would prefer the latter but for the reasons given I do not find the sworn evidence of the plaintiff to be credible and there will therefore be a verdict for the defendant."

Having done so, his Honour then went on to record some observations as to the approach which he would have adopted in calculating the Appellant's damages if he were entitled to a verdict.

In the Notice of Appeal which was filed on the Appellant's behalf on 26th July 1993, some ten grounds of appeal going to the issue of liability were taken, the nature of those grounds being sufficiently indicated by the following:-

"1. His Honour erred in law in finding a verdict for the Defendant.

2. His Honour failed to have proper regard to the weight of evidence in the Plaintiff's favour.

3. His Honour erred in not being satisfied on the balance of probabilities that the Defendant was guilty of negligence causing injury to the Plaintiff as a pedestrian."

A number of grounds going to the question of damages were also taken.

As I have previously recorded, no attempt was made on the hearing of the appeal to support any of the grounds of appeal directed to the question of liability originally raised, and the Appellant's counsel sought in lieu to raise the following ground of appeal:-

"15. His Honour should have entered Judgment for the Appellant on the basis that the evidence before him established that the Appellant was either a pedestrian who was injured when he was struck by the motorcycle negligently ridden by the Respondent or was a pillion passenger on the motor cycle who was injured by reason of the negligent riding of the Respondent and in either case the Appellant was entitled to succeed."

As I have earlier recorded, Mr Toomey accepted that, as a general rule, a party is precluded from raising for the first time on appeal a case which was not litigated at trial, but submitted that this case did not fall within that general rule for two reasons:

1.that the case which was litigated at trial was, upon analysis, whether or not the injuries which the Appellant had sustained were caused by the Respondent's negligent operation of his motor cycle; and

2. in any event, the factual issue of whether or not the Appellant had been a pillion passenger was fully examined at the trial and the Respondent has had the opportunity to tender whatever evidence he wished in respect of it.

In seeking to support the first of these propositions, Mr Toomey referred to the following passage in the joint Judgment of Dixon CJ, Webb, Fullagar and Taylor JJ in Mummery v Irvings! "In any action conveniently described as a negligence action the particular dut y, a breach of which is relied upon to establish negligence on the part of the defendant, may be alleged to have been transgressed in a variety of ways and if the plaintiff particularises the transgression or transgressions relied upon the defendant may, subject to the discretion of the court, hold him to the issue or issues of fact so raised. But the action is still for a breach of the duty specified and the defendant will not defeat the plaintiff's claim either by establishing that the plaintiff's injuries resulted from or were consistent with some other breach of the same duty. If the facts, as proved in the case, lead to the conclusion that the injuries resulted either from one or the other the plaintiff will succeed. This view is implicit in the decision in Doonan v Beacham and one illustration is perhaps sufficient to show the absurdity of the contrary view. Let it be assumed that a plaintiff has sued a defendant for the recovery of damages resulting from the negligence of the defendant in the control and management of a motor vehicle on a public street and that the particular breach alleged in particulars is that the brakes of the vehicle were defective. Is it an answer to the claim if the defendant, in addition to denying that the brakes were defective, seeks to explain the mishap by asserting that he was so much under the influence of alcohol that he could not use them effectively? Or could he escape liability by seeking to explain the accident by establishing that it really happened as a result of the inefficiency of the steering system."

With respect, it seems to me that the passage does not support the first proposition advanced by Mr Toomey, for the cause of action which was litigated at trial was not that suggested by Mr Toomey but, rather, was that the Appellant's injuries had been sustained by reason of the Respondent's breach of the duty which the rider of a motor cycle on a public street owed to a pedestrian on that public street at the same time. Lest it be thought that this is too fine a distinction, I would but draw attention to the fact that the paragraph immediately following in the Judgment in Mummery v Irvings upon which Mr Toomey has sought to rely is in the following terms:-

"The position is, of course, different where personal injury has been caused in circumstances which give rise to doubts whether the injured person should pursue one cause of action or another. In such circumstances it would be unusual to find that the plaintiff had not based his claim for damages alternatively upon both causes of action. But if he has not his action must fail if upon the trial it appears that he has chosen to pursue, and to persist in pursuing, the wrong one."

Further support for that view is to be found in the dissenting Judgment of Gaudron J in Water Board v Moustakas? upon which Mr Toomey also sought to rely. In the course of that Judgment her Honour wrote?: "It may be accepted that a new case emerges where a different cause of action is asserted from that litigated at the trial. Similarly, it may be accepted that a new case emerges where a different duty of care is asserted. So too it may be accepted that a new case emerges where a different ground of negligence is asserted. See Maloney v Commissioner for Railways (NSW). However, the present case involves none of these. The cause of action asserted at all time was negligence. The duty asserted against the Water Board was at all times the duty to provide a safe system of work. The ground of negligence asserted from the filing of the Statement of Claim until the final address was the failure to provide a barrier or barriers."

Nor, so it seems to me, can the second of the submissions which Mr Toomey advanced, be accepted. It is, in my view, impossible to predict how the trial would have been conducted if, instead of tendering the issue which arose on his Statement of Claim, the Appellant had, either, advanced a case of negligence on the part of the Respondent in failing to take due care for the safety of a pillion passenger, or, had sought to advance such a case alternatively with that which was pleaded in his Statement of Claim. At the very least, one would have thought that, if either of those alternative cases had been advanced, the Appellant would have faced a very grave risk of a substantial discount for contributory negligence, a question to which in the light of the conclusion to which he had come, HH Bell DCJ was not required to direct his attention.

I would propose, first, that leave to raise the fresh of ground of appeal be refused, and no other ground of appeal going to the question of liability now being advanced, then, that the appeal should be dismissed with costs.

1. Motion to for leave to add a ground of appeal, refused; and
2. Appeal dismissed with costs.

Counsel for the Appellant: BMJ Toomey QC, FD Curtis Solicitors for the Appellant: Marriott and Oliver (Nowra) Counsel for the Respondent: HMD Suvero

Solicitors for the Respondent: RM Walters, NSW Insurance Ministerial Corporation