Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Lewis v Shimokawa [2012] NSWCA 300
• Hearing dates: 27 July 2012
• Decision date: 24 September 2012
• Before: Bathurst CJ; at [1]; McColl JA; at [2]; Hoeben JA; at [3]

Decision

(1) Appeal dismissed.

(2) Appellant to pay the respondent's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORT - negligence - motor vehicle accident - consecutive collisions - whether appellant was in her vehicle at time of second collision - credit findings by trial judge - rejection of appellant's evidence and acceptance of evidence of witnesses of respondent - whether evidence of respondent's witnesses had been contaminated by post-accident discussions and the conduct of an investigator - whether "incontrovertible facts" inconsistent with his Honour's findings existed - whether his Honour's findings were "glaringly improbable" or "contrary to compelling inferences" - whether content of an expert report should have been specifically referred to by his Honour - no basis for interfering with the decision of trial judge established.
• Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336; Director General of Department of Community Services, Re Sophie [2008] NSWCA 250; Fox v Percy [2003] HCA 22; 214 CLR 118; Palmer v Dolman [2005] NSWCA 361; Shimokawa v Lewis [2009] NSWCA 266
• Category: Principal judgment
• Parties: Rebecca Lewis - Appellant; Shizunori Shimokawa - Respondent
• Representation: Counsel: Ms S Norton SC/Ms M Fraser - Appellant; Mr K Rewell SC/Mr A Renshaw - Respondent; Solicitors: Brydens Law Office - Appellant; Sparke Helmore - Respondent
• File Number(s): 2007/290379

Decision under appeal

• Date of Decision: 2011-07-01 00:00:00
• Before: Colefax DCJ
• File Number(s): 2007/290379

Judgment

1 BATHURST CJ: I agree with Hoeben JA.

2 McCOLL JA: I agree with Hoeben JA.

3 HOEBEN JA:

Nature of appeal

The appellant brought proceedings in negligence against the respondent claiming damages for personal injury in respect of a motor vehicle accident which occurred on 21 November 2003. There was no issue that a collision occurred between a vehicle driven by the respondent and the appellant's vehicle. The only issue was whether the appellant was inside her vehicle at the time of the collision.

4 The matter was heard in the District Court between 20 - 29 September 2010 and 24 - 25 May 2011. Colefax DCJ delivered judgment on 1 July 2011. His Honour found in favour of the respondent. The appellant has appealed from that decision.

Background

5 On the afternoon of 21 November 2003 the appellant in the course of her work was driving a Toyota Hi Ace van south along the F6 Freeway from Sydney to Wollongong. The Freeway in that direction consisted of two lanes, with an adjoining sealed breakdown lane. Running alongside the breakdown lane was an iron guardrail. The appellant was alone in the vehicle. Weather conditions were not good and the Freeway was affected by fog and rain. It was peak hour and there was a lot of traffic.

6 At approximately 4.30pm the appellant's vehicle collided with the rear of a Holden Rodeo, being driven by Mr Josie McCaw (the McCaw vehicle). This vehicle had three young men as its occupants; the driver, his brother Andrew and their friend, Mr Kevin Perkins.

7 Shortly after the appellant's vehicle collided with the McCaw vehicle, a 15 seater minibus (the respondent's vehicle) collided with the rear of the appellant's vehicle. There were three occupants of the respondent's vehicle: the respondent who was the driver, his wife and a young friend of their son, Mr Naylor. Very quickly after that collision, another vehicle collided with the trailer attached to the respondent's vehicle.

8 The incidents involving the McCaw vehicle, the appellant and the respondent's vehicles were not the only collisions in that vicinity at that time. Many other collisions (possibly 30) occurred on that section of the Freeway at about that time.

9 There was a dispute as to the severity of the impact between the appellant's vehicle and the McCaw vehicle. The appellant contended that the impact was trivial, whereas the respondent contended that the impact was minor but not insignificant. The importance of this dispute was that the respondent contended at trial that any genuine injury which the appellant may have suffered was caused by the first collision with the McCaw vehicle.

10 There was no dispute that the respondent's vehicle collided with the rear of the appellant's stationary vehicle. There was a dispute concerning the following matters:

(i) The interval of time between the collision with the McCaw vehicle and the second collision. The appellant asserted that the second collision occurred two or three seconds at most after the first collision and that she did not and could not move from her seat during that short time. Messrs Josie McCaw and Perkins gave evidence that there was a longer interval between the two collisions, probably two minutes. (The third occupant of the McCaw vehicle was affected by mental illness at the time of trial. It was agreed that his evidence would not be relied on by either party.)

(ii) Was the appellant in her vehicle at the time of the second collision?

11 The appellant asserted that she did not alight from her vehicle after the first collision but prepared herself, anticipating that her vehicle would be struck from behind. If her evidence were accepted, there was insufficient time for her to move from her seat after the first impact before the second impact.

12 Messrs McCaw and Perkins said that they alighted from the utility and that the appellant alighted from her vehicle after the two collided, but well before the respondent's minibus collided with the rear of the appellant's van. They gave evidence that the appellant was engaged in conversation with them at the side of the Freeway at the time the respondent collided with the rear of her van.

13 The respondent and his wife gave evidence that they observed a group of four persons standing together by the side of the Freeway before the respondent's minibus collided with the appellant's van. The appellant was identified as one of that group at the side of the Freeway.

14 It was common ground that before taking statements from the respondent and his wife, an investigator, Mr Shore, told them that the McCaw brothers and Mr Perkins were asserting that the appellant was outside her vehicle at the time of the second collision. It was also common ground that this investigator did not interview the respondent and his wife separately, but together. Statements were obtained by that investigator from the respondent and his wife.

15 There were earlier proceedings in the District Court which resulted in a judgment in favour of the appellant. On appeal (Shimokawa v Lewis [2009] NSWCA 266) that judgment was set aside and the matter was returned to the District Court for a new trial on all issues. The proceedings now appealed from constituted the retrial.

Proceedings in the District Court and the findings of the trial judge

16 His Honour identified the fundamental question as whether or not the appellant was in her car at the time of the second collision. To answer that question, he identified three subsidiary issues:

(a) What was the force of the impact in the first collision?

(b) An assessment of the appellant's evidence by a comparison with the evidence of those witnesses called on behalf of the respondent.

(c) The extent to which there was corroborative evidence supporting the appellant.

17 In determining those questions, his Honour was mindful of the seriousness of the issues under consideration and made specific reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, Palmer v Dolman [2005] NSWCA 361 and Director General of Department of Community Services, Re Sophie [2008] NSWCA 250.

18 In relation to the force of the impact in the first collision, his Honour reviewed the evidence of the appellant, her former husband Mr Lewis, and the persons in the McCaw vehicle. His Honour noted the following evidence from the appellant, both in chief and cross-examination:

"Q. Whereabouts on your vehicle and whereabouts on his vehicle did the collision occur?

A. I actually slid straight into his tow bar.

Q. Are you able to estimate what sort of speed you were doing when you impacted into the rear of his vehicle?

A. I can't say exactly what speed I was doing at that time. I remember when I was coming through I was only doing about 40, 45 k's before I broke. So I would have, I would think, slowed down.

Q. What sort of impact did it feel like to you?

A. I literally just bumped into his towbar.

Q. With any force or not?

A. Not much at all." (Black 13M)

"Q. When you hit your brakes the wheels locked and you slid?

A. Yes.

Q. And so you weren't able to reduce your speed greatly before sliding into the rear of Mr McCaw, were you?

A. Well, I don't know exactly what speed I was doing, no.

Q. Well you've estimated as best you can 40 to 45 kilometres an hour?

A. That was the speed that I was doing yes before I hit the brakes." (Black 65H)

"Q. Well when you say "just tapped it", you hadn't actually reduced your speed much below 40 to 45 kilometres an hour, had you?

A. I really don't know. I wasn't looking at my speedo at the time.

Q. I fully accept that but --

A. Yeah.

Q. You had hit the brakes hard at 40 to 45?

A. Yes.

Q. And slid on the wet road?

A. Yes.

Q. So the speed of the car no doubt reduced, but not by much. Would you agree?

A. Probably not, yes." (Black 66H)

19 Mr Perkins did not think that the impact had been particularly great because there was no damage to the McCaw vehicle and after 7 years he had no clear recollection of the extent of the impact. He did remember that the appellant's vehicle had sustained more damage than the McCaw vehicle. The evidence of Mr Josie McCaw was that the impact was not particularly great but that the bumper bar of the van had gone through the tow ball of the Rodeo.

20 Evidence was given by Mr Lewis about a phone call which he had with the appellant an hour or so after the collision when she had been allowed to depart by the police. In cross-examination it was clear that his recollection was hazy about what he had been told by her. His evidence was:

"Q. Might she have said "I relaxed and sighed after I struck the towbar of the car in front"?

A. I just remember her saying that she'd - I would be proud of her because I taught her how to drive and basically when she seen the ute stopping quite quickly in front, she jammed her brakes on, it locked up but she was able to relax and remember how I taught her to sort of release the brake and go again she had just slid in and bumped against the tow ball of the car in front." (Black 185R)

His Honour did not regard the evidence of Mr Lewis as particularly useful in assessing the extent of the first collision.

21 His Honour concluded that the best evidence on this issue came from the appellant. He said:

"Given that the plaintiff had expressly estimated her speed (between 40 to 45 kph) and given a clear estimation of the distance between her vehicle and that of the McCaw vehicle immediately before impact (one to one and a half vehicle lengths), the plaintiff has not proved on the balance of probabilities that the first impact was not an insignificant one." (Red 44L)

22 His Honour also took into account the evidence of Dr Conrad, the only doctor to give evidence on this issue:

"Q. Would it be fair to say that your experience has taught you that sometimes a minor impact can lead to a major injury?

A. It can.

Q. Sometimes a major impact can lead to no injury or a very minor injury?

A. That's correct.

Q. Is that the reason why you properly don't regard it as part of your function to try and sort out which impact might have caused injury?

A. That's right.

Q. Because it would be medically imprudent to do so?

A. Yes." (Black 224W)

23 On the basis of that material, his Honour found:

"Accordingly, on the basis of Dr Conrad's evidence, the plaintiff's assumed injuries could have been sustained by the first collision. Those assumed injuries therefore are not independently corroborative of the plaintiff's evidence that she was in her vehicle at the time of the second accident." (Red 44S)

24 His Honour then reviewed the evidence concerning the appellant's presence in the van at the time of the second collision. His Honour found the appellant to be a not particularly impressive witness, insofar as demeanour was concerned. Nevertheless, his Honour did not place particular weight on that consideration, although he did not entirely disregard it.

25 His Honour summarised the appellant's evidence concerning the second collision. The appellant said that having collided with the McCaw vehicle, she expected a further collision and accordingly, braced herself by holding onto the steering wheel. She said that within two or three seconds, a second impact occurred with the respondent's vehicle. She described that impact as "a big force", "a huge force". She said that the force of the impact was such that she was lifted off her seat and that her head hit the roof of the van. She said that she was quite shaken by the impact.

26 The appellant said that after she had collected her cigarettes, she observed the three occupants of the McCaw vehicle walking towards her in the left-hand traffic lane. She got out of her car and had a conversation with them and smoked cigarettes, initially standing beside her van in the left-hand traffic lane, but then moving to the front of the van. She also had a brief conversation with the respondent who was taking photographs.

27 His Honour considered that there were aspects of the appellant's evidence which were unsatisfactory.

28 The matters specifically identified by his Honour were:

(i) Her evidence as to whether and when she had read the transcript of her evidence given in the previous hearing. His Honour characterised that evidence as improbable and evasive.

(ii) Her evidence concerning whether she had a pre-existing injury, which was still being treated in 2003. The appellant said that she did not. She accepted that she had suffered a back injury in July 2001 which had been symptomatic for about six months, but thereafter it had resolved. That evidence was inconsistent with the records of her general practitioner, Dr Low, which referred to eight - nine months of massage without relief as of March 2002 and treatment by a physiotherapist thereafter. There was evidence of the appellant receiving chiropractic treatment for her back as of the date of the accident. The appellant sought to explain the note of Dr Low by saying that this was a reference to "rubbing" performed by her husband. His Honour characterised the appellant's responses to these issues as unsatisfactory and deliberately evasive.

(iii) The content of a workers compensation claim form. In it the appellant declared "to the best of her knowledge and belief [its content] was true and correct in every detail". Under the section concerning witnesses to the incident she had written "I only have the man who actually hit me" and then the name and details of the respondent were set out. No reference was made to anyone in the McCaw vehicle, although it was clear that the appellant was aware of their names and details. His Honour found that her explanation as to why she did not provide this information was implausible.

(iv) At the previous trial, when giving evidence as to domestic assistance provided to her, she had made no mention of assistance which she was then receiving from her partner, Mr Witt. In this trial, a significant claim for unpaid domestic assistance was based on the assistance provided by Mr Witt. His Honour characterised the appellant's explanation for why she did not refer to the assistance provided by Mr Witt in the first trial as improbable.

29 Taking all of those matters together, and having regard to the demeanour issue, his Honour said:

"I have concerns about the reliability of the plaintiff's evidence generally and in particular on the immediately relevant issue for resolution".

30 His Honour then reviewed the evidence of the respondent's witnesses.

31 Mr Josie McCaw gave evidence that he had driven into the breakdown lane in order to avoid colliding with a vehicle in front of him when the appellant's van collided with the rear of his vehicle. He said that he, his brother Andrew, and Mr Perkins exited their vehicle and went to examine the damage. As they were doing this, the appellant stood beside them so that all four were standing in the breakdown lane. He said that when the respondent's vehicle approached, all of them jumped over the guardrail.

32 At the time of the accident in 2003, Mr Perkins was aged 17. He was a backseat passenger in the McCaw vehicle. He gave evidence that after the collision with the appellant's vehicle, he was standing with the appellant and the McCaw brothers immediately before the second collision.

33 Josie McCaw and Mr Perkins were cross-examined to the effect that they were being deliberately dishonest when they said that the appellant was standing with them outside her vehicle at the time of the second collision. His Honour rejected that submission because there was no advantage to them in giving anything other than truthful evidence. They were total strangers, as far as the appellant and the respondent were concerned.

34 The second challenge to the evidence of Messrs McCaw and Perkins was that their recollections had been contaminated because they had discussed the events of that particular day with each other, and with others. Both witnesses freely admitted that in the months following the accident, such discussions had taken place. His Honour noted that when the content of those discussions was tested, it became clear that what had been discussed was not the accident involving the appellant, but the rescue of another driver in which they had participated at some considerable risk to themselves.

35 In re-examination Mr McCaw gave the following evidence:

"Q. There's just one matter I want to raise with you Mr McCaw. You may remember Mr Lidden drawing your attention to the period of months after the accident?

A. Yep.

Q. During which you said that you and your brother explained the accident to others?

A. Yes.

Q. What aspects of the accident did you talk about when you explained it to others during the months following the accident itself?

A. Mainly taking the bloke out of the Escort. There was all petrol on the road and he was bleeding from his head and everything like that. More - more of them sort of things yeah.

Q. Were you at that time discussing anything to do with Miss Lewis?

A. No because that was all clear." (Black 518N)

36 His Honour was satisfied that there had not been any relevant contamination of recollection on the part of those witnesses.

37 The third challenge to their evidence concerned the differences between some aspects of their evidence. For example, while they both agreed that the appellant was standing with them outside her vehicle at the time of the impact by the respondent's vehicle, they had her at a different position by reference to her vehicle.

38 His Honour did not find such differences to be remarkable and considered that they were to be expected after more than 7 years had passed. His Honour concluded:

"88 Those differences, however, do not lead me to doubt the accuracy of their recollections about the incident involving the plaintiff and, more particularly, where she was physically placed between the two relevant collisions." (Red 59N)

39 The fourth challenge to their evidence concerned demeanour. This related to what was described as "some terse exchanges between those witnesses and the cross-examiner".

40 His Honour rejected that criticism of their evidence. He regarded them as unsophisticated young men with no previous experience of courtrooms. In those circumstances, his Honour did not find their responses to be inappropriate. On the contrary, he found them to be "impressive witnesses" (Red 60L).

41 His Honour reviewed the evidence of the respondent's wife, who was a front seat passenger in the respondent's vehicle. She said that as the fog cleared, she saw that they were approaching the appellant's vehicle. She noticed a group of three men and a woman standing between it and the guardrail. She described the woman as having long hair and wearing white Bermuda shorts with a dark top. This was an accurate description of the appellant. She said that the impact with the appellant's vehicle was not very forceful. She alighted from the vehicle, went up to the group and asked if anyone was hurt. Having received a negative answer, she then specifically asked about the driver of the van to which one of the group replied "The driver's here" and indicated the appellant.

42 The respondent's wife was cross-examined extensively concerning the interview with the investigator, whether she had discussed the accident with her husband and whether she had refreshed her memory from statements and photographs taken at the time. In was suggested to her that her evidence was untrue and that she had given such evidence out of a sense of importance.

43 While his Honour was concerned at the impropriety associated with the way in which the investigator obtained statements from the respondent and his wife, he was very impressed by her as a witness. He was particularly impressed by her reaction when she learned for the first time that the appellant was claiming to have been in the vehicle when the second collision occurred. Under cross-examination, the following exchange took place:

"Q. He told you that didn't he?

A. Yes. What I remember him telling us was that she said that she was in the car and I was shocked by that." (Black 331H)

"Q. That was the first time about five years after this accident that you had any thought about whether she was in the van isn't it?

A. No it's not. I was shocked to find that she said that she was. That's what shocked me. I couldn't believe she said she was in the car.

Q. You were shocked?

A. Yes." (Black 331U)

44 His Honour concluded:

"Indeed the longer the cross-examination continued the more I was impressed by the witness. Ultimately therefore I found her evidence to be reliable on the fundamental issue of where the plaintiff was at the time of the impact between her vehicle and the defendant." (Red 62S)

This was a finding clearly based not only upon the effect of the evidence but on demeanour.

45 His Honour did not reach the same conclusion in relation to the respondent. The respondent's evidence was that after the collision he approached a group of four people, standing next to the guardrail, and exchanged details with the appellant and took photographs of the scene.

46 His Honour found that the respondent's response to cross-examination was to become overly defensive. His Honour was not satisfied that the respondent necessarily had an independent recollection of aspects of his evidence. Ultimately, his Honour did not reject the evidence of the respondent because it was corroborated by the other three witnesses. Nevertheless, his Honour made it clear that he did not regard the respondent as an impressive witness.

47 His Honour's conclusion was:

"105 The plaintiff has failed to discharge the onus of proof of establishing that on the balance of probabilities she was in her vehicle at the time of the collision with the defendant's vehicle. Indeed I am satisfied positively on the balance of probabilities by having regard to the totality of the evidence that she was not." (Red 65E)

Submissions and consideration

48 Before setting out and examining the competing submissions, it is useful to review the principles which this Court has to apply given the strong factual findings by the trial judge. In this regard, Fox v Percy [2003] HCA 22; 214 CLR 118 continues to be the most recent and comprehensive statement of principle.

"23 The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.

...

25 Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect". In Warren v Coombes, the majority of this Court reiterated the rule that:

"[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it."

As this Court there said, that approach was "not only sound in law, but beneficial in ... operation".

26 After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.

...

28 Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

29 That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process. (Gleeson CJ; Gummow and Kirby JJ)

...

90 It is a serious mistake to think that anything said in Abalos or Devries necessarily prevents an appellate court from reversing a trial judge's finding when it is based, expressly or inferentially, on demeanour. Those cases recognise - in accordance with a long line of authority - that it may be done. But there must be something that points decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses. Recently in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) for example, this Court held that undisputed and documentary evidence was so convincing that no reliance on the demeanour of witnesses could rebut it." (McHugh J)

Ground 1 - The trial judge's reasons failed to disclose a logical or adequate reasoning process.

49 This ground of appeal was directed to his Honour's finding (Red 50J) that there were aspects of the appellant's evidence which he found to be "unsatisfactory" and to his acceptance of the evidence of Mr McCaw, Mr Perkins and Mrs Shimokawa.

50 With respect to her own evidence, the appellant made submissions under the following headings:

Demeanour

Reading of the transcript

Previous massage therapy

Dr Low's clinical notes

Workers Compensation Claim

Domestic Assistance

Demeanour

51 The appellant submitted that the demeanour matters referred to by his Honour did not support a finding that she was being untruthful. That submission is correct. It does not, however, accurately reflect what his Honour said.

52 In the context of evidence from the appellant that since the accident her leg would shake when she was under stress, his Honour noted that her leg appeared to shake when she was giving evidence in chief but that there was no such shaking when she was being cross-examined. Despite that observation, his Honour was not prepared to place "undue weight" on it, although he was not prepared to entirely disregard it.

53 There was no error on the part of his Honour in this approach and it is clear from the whole judgment that this observation made a minor contribution, if any, to his Honour's conclusion in relation to the appellant's evidence.

Reading of the transcript

54 The appellant submitted that there was no basis for his Honour to find that when questioned about whether she had read the transcript of evidence given by her in the earlier District Court proceedings, her responses had been evasive. I do not agree. The relevant cross-examination took place at Black 50W-52H. A fair reading of that part of the appellant's evidence fully supports his Honour's conclusion. Instead of agreeing with the cross-examiner (as was the fact) that she had read the transcript before giving her evidence, she prevaricated and was evasive in her responses.

Previous Massage therapy

55 The appellant was cross-examined to the effect that a back injury suffered at work in July 2001 was not minor and that she was still receiving treatment for it at the time of the accident. The appellant was cross-examined as to evidence which she gave in the previous trial and in this trial. Her evidence was that she had only been troubled with back symptoms for some six or seven months from July 2001. In the earlier trial she denied that she had undergone any massage treatment thereafter and in this trial, said that her husband would from time to time massage her back (Black 49R).

56 There was evidence in the appellant's case from Mr Wheatley, her employer in 2001, that he could only recall her receiving treatment for her back for about six months. There was evidence from Mr Lewis that the appellant had only been troubled with back problems for six months. The appellant submitted that his Honour made no reference to this corroborative evidence when drawing adverse inferences in respect of the appellant. She submitted that in the overall context of the evidence, her responses did not adversely reflect on her credit.

57 There was a considerable body of documentary material which was contrary to the evidence given by the appellant. On 20 March 2002 Dr Low referred the appellant to a physiotherapist, Mr Middleton. The letter of referral referred to "thoracic spine/paravertebral strain 8 - 9 months of massage: no relief". Mr Middleton provided physiotherapy treatment in accordance with the letter of referral between April 2002 and June 2002. A document completed by the appellant on 9 April 2002 (exhibit D, Blue 13) indicated that as of that date she was still suffering significant symptoms in her low back. The appellant was undergoing monthly chiropractic treatment for her low back at the time of the accident on 21 November 2003. Her evidence was that these chiropractic sessions were for "maintenance" purposes and not because she was experiencing symptoms.

58 When cross-examined on these documents and on this issue, it would be fair to say that the appellant's responses were contradictory and inconsistent. His Honour's finding that the appellant's responses were evasive was well open to him.

Dr Low's clinical notes

59 The appellant submitted that it was not open to his Honour to rely upon his own understanding of the records of Dr Low in preference to her evidence as to their meaning. The appellant submitted that in the absence of oral evidence from Dr Low, his Honour was not entitled to reject her evidence that the massage referred to was that provided by her husband.

60 The description of treatment by Dr Low in his letter of referral was clear and by reference to the other evidence concerning treatment provided for the appellant (particularly the report of Mr Middleton at Blue 26), his Honour was entitled to give to the letter of referral from Dr Low its normal and obvious meaning.

Workers compensation claim

61 His Honour found that the appellant's explanation as to why she had omitted to provide details of the McCaw witnesses in her workers compensation claim form to be implausible. The appellant's explanation was that following the accident when she tried to contact Mr McCaw, his mother had spoken aggressively to her. She submitted that this provided an explanation for the contents of the workers compensation form and that there was no proper basis for his Honour to make the finding which he did.

62 Despite the requirement in the claim form that she provide information "to the best of her knowledge and belief [which] was true and correct in every detail", the appellant wrote on the form "I only have the man who actually hit me as a witness" and then set out the name and address of the respondent. At the time when she completed that form, the appellant was aware that there were at least three other witnesses, being the McCaw brothers and Mr Perkins.

63 In those circumstances, it was open to his Honour to find that the appellant's explanation for failing to provide full contact details was unsatisfactory and improbable. Even if Mr McCaw's mother had been hostile, that was no reason to withhold witness details of which she was aware. His Honour did not err in making the finding which he did.

Domestic assistance

64 In the earlier trial (September 2008), the appellant gave evidence of domestic assistance received by her from family and friends as a result of the accident. In that trial, she made no mention of any assistance received from Mr Witt (her current partner). She and Mr Witt had commenced living together in April - May 2008. In this trial, a substantial part of the appellant's claim for domestic assistance related to services provided by Mr Witt. His Honour found the appellant's explanation as to why she had made no reference to Mr Witt in the earlier trial to be improbable. The appellant submitted that there was no basis for that finding.

65 The evidence on this issue is at Black 110S-113Q. The appellant's explanation for why she had not given this evidence in the earlier trial was that she had not been specifically asked and at the time she was trying to do more housework herself. This explanation was inconsistent with the applicant's evidence as to the extensive assistance provided by Mr Witt (Black 38T) and the evidence of Mr Witt to the effect that the appellant was not capable of stirring a pot of liquid without significant pain (Black 205S-206T). In the earlier trial the appellant was asked and had given evidence as to domestic assistance which she was receiving up to and including the date of that trial. In those circumstances, it was open to his Honour to make the finding which he did.

66 It follows from the above analysis that there was ample evidence, both in relation to the individual matters and cumulatively, to support his Honour's conclusion as to the unsatisfactory nature of some of the evidence of the appellant. The appellant's challenge to his Honour's reasoning on this issue has not been made out.

His Honour's analysis of the respondent's witnesses

67 The appellant submitted that his Honour erred in his acceptance of the evidence of Mr Perkins in that his Honour did not have adequate regard to his evidence that he did not care what he told the investigators and that he had only a limited recollection of the circumstances surrounding the accident. The appellant submitted that his Honour should have been more critical of the fact that those details which Mr Perkins did remember supported the evidence of Mr Josie McCaw and were adverse to the appellant. The appellant submitted that his Honour did not have adequate regard to the differences in evidence between Mr Josie McCaw and Mr Perkins, in particular as to where the appellant was at the time of the second collision. The appellant submitted that there was no proper basis disclosed by his Honour for finding that both Mr Perkins and Mr Josie McCaw were "impressive" witnesses, other than that they had steadfastly adhered to their evidence under heavy cross-examination.

68 The difficulty for the appellant is that such submissions of their nature cannot overcome considered credit and demeanour findings, such as were made by the trial judge in this case. What has to be shown is that his Honour's acceptance of the evidence of these witnesses was inconsistent with other incontrovertible facts or that the acceptance of their evidence was "glaringly improbable" or "contrary to compelling inferences". That has not been done.

69 While it is true that there was a discrepancy between the evidence of Mr Perkins and that of Mr McCaw as to where the appellant was standing at the time of the second collision, their evidence on the crucial issue of whether the appellant was outside her vehicle was the same. What clearly emerged from the evidence of both Mr Perkins and Josie McCaw was that both were reluctant witnesses in the sense that they were impatient with the fact that the insurance company required them to give evidence and that they had no personal interest in the outcome of the trial. Specifically, no motive was identified as to why they would give evidence contrary to the interests of the appellant. On the contrary, it was clear that they both bore some hostility towards the insurance company and its investigators. It is clear that his Honour took those matters into account, as well as his findings as to demeanour when accepting their evidence. The appellant's challenge to their evidence under this ground of appeal has not been made out.

70 The appellant challenged the evidence of Mrs Shimokawa on the basis that it had been contaminated by the actions of the insurance investigator who attended to obtain a statement from her and the respondent. The nature of the contamination was that the investigator had interviewed both Mrs Shimokawa and the respondent together and that before taking a statement from them, he advised that the persons in the McCaw vehicle were saying that the appellant was not in her vehicle at the time of the second collision.

71 Both at trial and in this appeal, the respondent accepted that the behaviour of the investigator had been wrong and inappropriate. Mrs Shimokawa was cross-examined on the basis that her evidence had been contaminated and that she had no independent recollection of the circumstances of the accident. She unqualifiedly rejected those challenges. She was also cross-examined on the basis that her recollection after such a long time was defective and that it was the information conveyed by the investigator, that the McCaw witnesses would say that the appellant was not in her vehicle, which led to Mrs Shimokawa giving evidence to similar effect.

72 Not only did Mrs Shimokawa reject that latter proposition but she did so in terms which particularly impressed the trial judge. The effect of her evidence was that when she was told by the investigator that the appellant was asserting that she had been in her vehicle at the time of the second collision, she was shocked. The basis for that shock became clear as the cross-examination progressed. She was not shocked because the appellant was asserting that she had been injured when at the time of the accident she had denied any such injury, but rather that the appellant was asserting that she was inside her vehicle when the clear recollection of Mrs Shimokawa was that she was one of the four people standing by the vehicle at the time of impact.

73 It is clear from his Honour's treatment of the evidence of Mrs Shimokawa that he was mindful of the possibility of contamination because of the conduct of the investigator. For that reason he carefully assessed it. Having done so, his Honour was unequivocal in his acceptance of that evidence and in his assessment of Mrs Shimokawa as an impressive and accurate witness. As with the evidence of Messrs Perkins and McCaw, no incontrovertible facts nor other considerations have been identified which would render her evidence "glaringly improbable" or "contrary to compelling inferences" otherwise available.

74 This ground of appeal has not been made out.

Ground 2 - The trial judge's finding that the impact between the appellant's vehicle and the McCaw vehicle was not "an insignificant one" was not based on the evidence given at trial and the reasoning is inadequate and contradictory.

75 The importance of this issue is that if his Honour's finding were open on the evidence, it provided an explanation for how the appellant could have suffered injury without being in her vehicle at the time of the second collision. It was an important part of the appellant's case at trial and on appeal that there was a substantial body of medical opinion to the effect she had suffered a significant injury at the time of the accident and that this provided objective corroboration of the fact that she must have been in her vehicle at the time of the second collision.

76 The appellant submitted that his Honour's finding on this issue was defective in that he had placed too much weight on his interpretation of the appellant's evidence and had given insufficient weight to the evidence of Messrs Perkins and McCaw as to the minor nature of the first collision. The appellant noted that Mr Perkins could not remember an impact and could not recall whether the vehicles were in contact. The appellant submitted that the evidence relied upon by his Honour was too imprecise to enable him to make the finding which he did, in particular that his Honour had failed to take into account that at the time the McCaw vehicle was first observed by the appellant, it was still moving.

77 The appellant estimated her speed before braking to avoid a collision with the McCaw vehicle at 40-45 kmh (Black 13P, 63U). She estimated that she was only 1.5 car lengths behind the McCaw vehicle when she emerged from a patch of fog and saw that it was braking heavily (Black 64V). The appellant said that she applied her brakes hard, but slid on the wet road (Black 65C). The appellant was unable to estimate her speed at the time her vehicle collided with the towbar attached to the rear of the McCaw vehicle. There was evidence that the towbar of the McCaw vehicle had gone through the front bumper of the appellant's vehicle. Although the damage to the McCaw vehicle was minor, the appellant's van stopped abruptly when the impact occurred (Black 66D).

78 The evidence relied upon by his Honour was sufficient to support his conclusion that the impact with the McCaw vehicle was not "an insignificant one". It is clear from their evidence that Mr Perkins and Mr McCaw were more concerned with the damage to their vehicle than with an assessment of the damage to the appellant's vehicle. The person in the best position to assess the extent of the impact was the appellant and his Honour was entitled to rely upon her evidence. (See [18] - [21] hereof.)

Ground 3 - The trial judge erred in failing to find that the injuries suffered by the appellant corroborated the fact that she was in the vehicle at the time the respondent's vehicle impacted with it.

79 The appellant submitted that if it were accepted that the first collision was slight and the second collision was forceful, then common sense would suggest that the appellant was seriously injured in the second collision. The appellant submitted that the evidence of Dr Conrad, relied upon by his Honour, should be disregarded since it was based upon hypothetical propositions and to the extent that evidence in the case was put before Dr Conrad, it was misstated.

80 I do not agree that the evidence of Dr Conrad was based on purely hypothetical propositions and that it was unrelated to the evidence. On the contrary, the clear effect of the evidence of Dr Conrad was that there was no necessary correlation between the severity of an impact and the severity of an injury which followed from it. Sometimes a minor impact could lead to a major injury and sometimes a major impact could lead to a very minor injury, or no injury at all. Accordingly, the evidence of Dr Conrad supports the proposition that the first collision could have caused the appellant's injuries.

81 The issue can be looked at in another way. If it is accepted that the appellant was in her vehicle for the first collision, but was not in her vehicle for the second collision but still suffered the serious injury of which she complains, the evidence of Dr Conrad is fully supportive of the first collision causing that injury.

82 There is another consideration which was not adverted to by his Honour but which is of relevance. On the basis of the history of the appellant being in her vehicle at the time of the second collision, the doctors who examined her concluded that the disabilities of which she complained were due to that collision. That diagnosis largely depended upon an acceptance of the accuracy of the history and symptoms described by the appellant. The only objective medical sign which was found on an examination of the appellant was "a mild localised disc protrusion" at the C6/6-7 in an MRI scan of 23 August 2004. Such a finding could have a traumatic or non-traumatic cause. It is the history provided by the appellant which linked that finding to the disabilities of which she complains. In other words, the medical diagnosis of the appellant depended largely upon her being accepted as an accurate and honest historian.

83 This ground of appeal has not been made out.

Ground 4 - The trial judge erred in failing to find that the contemporaneous reports and complaints made by the appellant corroborated that she was in the vehicle at the time of the accident.

84 The contemporaneous reports upon which the appellant relies were:

(i) The conversation which she had with her then husband, Mr Lewis, on the night of the accident.

(ii) The report which she made to her then employer, Mr Wheatley, at the time of the accident and his observation the next day that she was in pain and upset.

(iii) The observation of Mrs Wheatley on the day after the accident that the appellant was in pain and upset.

(iv) The description of the accident in the workers compensation claim form, completed on 4 December 2003.

85 The appellant submitted that his Honour did not refer to this corroborative evidence and therefore his finding that the appellant was not in her vehicle at the time of the second collision miscarried.

86 The evidence relied upon by the appellant is not entirely independent. Mr Lewis had been her husband and Mr Wheatley was her uncle by marriage. While the evidence of Mr Lewis in chief corroborated the appellant's evidence in respect of the second collision, under cross-examination he was much less sure of what the appellant had told him. The following exchange took place at Black 186G:

"Q. She might simply have said "Later someone came and hit the back of my van". Would you agree?

A. She could have yes."

87 The evidence of Mr and Mrs Wheatley is inconsistent with the appellant telling the McCaw group and Mrs Shimokawa at the scene of the accident that she had not been injured and is inconsistent with the COPS record of her report to the police on the day following the accident, which included a notation that no-one had been injured.

88 In the workers compensation claim form, the description of the accident refers to the second collision occurring "less than a second later" which is inconsistent with the appellant's evidence of bracing herself in anticipation of a second collision occurring.

89 Putting the appellant's case at its highest, these contemporaneous statements all emanate from the appellant and indicate no more than that the appellant had decided to say that she was in her vehicle at the time of the second accident at an early point in time. One can only speculate as to her motive in doing so. In that regard, the workers compensation claim form may provide some assistance. Because most of the damage to the appellant's vehicle was caused by the second collision, she may have thought that it was better to rely upon that incident when making her claim for compensation. It is also not without significance that it is this claim form which contains the misleading information concerning witnesses to the accident.

90 If these contemporaneous statements were made as the appellant submitted, they do not amount to evidence that "points decisively not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses". (McHugh J in Fox v Percy). This ground of appeal has not been made out.

Ground 5 - The trial judge failed to adequately take into account the gravity of the allegation being made when reaching his conclusion that the appellant had for a prolonged period of time been guilty of fraudulent conduct.

91 The appellant submitted that his Honour did not properly appreciate the seriousness and consequences of his finding in relation to the appellant's claim and that no proper foundation had been laid for such a finding.

92 His Honour well appreciated the seriousness of the finding which he was being asked to make and at Red 25-26 specifically considered the evidentiary onus carried by the respondent and the necessity for the Briginshaw standard of proof to be satisfied. It is clear from his Honour's judgment that in accepting the evidence of Mr Josie McCaw, Mr Perkins, Mrs Shimokawa and the respondent, and in rejecting that of the appellant, he not only had that standard in mind but applied it. No error in the standard of proof applied by his Honour has been demonstrated.

Ground 6 - In assessing the evidence of the witnesses called by the respondent the trial judge failed to have any or any adequate regard to the evidence of Dr Helen Paterson, particularly in circumstances where the respondent called no evidence to rebut it.

93 The appellant submitted that although his Honour admitted a redacted version of the report of Dr Paterson into evidence, he had little regard to it. The appellant submitted that the report of Dr Paterson provided an explanation for how the respondent's witnesses could have been mistaken in their evidence although genuinely believing it to be true. As such it was necessary for his Honour to take into account the important matters set out in that report when assessing the evidence of those witnesses. The appellant submitted that his Honour's failure to do so invalidated or substantially weakened the effect of his acceptance of their evidence.

94 The appellant submitted that the evidence of Mr Perkins that he had discussed the accident over the preceding three years and that for many years no-one had asked him to turn his mind to the location of the female driver of the van, was the sort of situation to which Dr Paterson referred. The evidence of Mr McCaw was to similar effect. The appellant submitted that the evidence of Mrs Shimokawa and the respondent had been contaminated by the methodology used in obtaining statements from them and provided good examples of the matters specifically referred to by Dr Paterson in her report.

95 The appellant submitted that when one took into account the report of Dr Paterson, it was clear that all the respondent's witnesses would have been at a heightened risk of significant memory contamination by reason of their discussions with one another and with investigators in relation to one aspect of an event which they were asked to recall many years after it had occurred. Since there was no evidence called to rebut Dr Paterson's report, it should have been given full force and effect by his Honour. His Honour's failure to do so substantially weakened his acceptance of the respondent's witnesses.

96 Dr Helen Paterson is a lecturer in forensic psychology at the University of Sydney. The parts of her report which were admitted set out the results of her research, and the research of others, as to the possible sources of contamination of eye witness evidence. This comprised:

Post event misinformation.

Leading questions by interviewers/investigators.

Discussions between co-witnesses.

97 According to Dr Paterson, information obtained in discussion with a co-witness was the most significant contaminant. Misinformation introduced after a long delay was more likely to affect the recollection of an eye witness than misinformation closer to the event.

98 Each of those matters is within the common experience of lawyers and judges. It is doubtful whether the report adds anything to the usual approach adopted by courts to the assessment of oral evidence.

99 Although his Honour did not specifically refer to the report of Dr Paterson in the context of his analysis of the evidence of the respondent's witnesses, it is clear that his Honour was conscious of the risk of contamination of their evidence and that he carefully scrutinised it. He specifically had regard to that consideration and rejected it. In any event, the report of Dr Paterson went no further than to identify circumstances in which evidence may be contaminated. It did not and could not assert that any of the evidence in this trial was contaminated. Accordingly, there is nothing in the report which required rebuttal by the respondent. This ground of appeal has not been made out.

Ground 7 - Having found that the investigation processes of the respondent were inappropriate, the trial judge erred in placing little weight on that finding when accepting that the respondent's witnesses had a genuine recollection of the events in question, particularly in circumstances where the only common ground in their evidence was that the appellant was not in the vehicle at the relevant time.

Ground 8 - The trial judge failed to properly assess the implications of the fact that the respondent chose not to call evidence from the investigators whose conduct the trial judge found was inappropriate.

100 These two grounds of appeal raise the same issue and can be dealt with together. The appellant submitted that the value of the evidence of the respondent's witnesses was substantially devalued because the respondent did not call any of the investigators. As a result, there was no evidence before the court as to:

(a) Which investigator spoke to which witnesses.

(b) What questions were asked by the investigators.

(c) What information or assumptions the investigators had shared between the two groups of witnesses.

(d) Whether witness statements obtained by the investigators were accurate accounts of what they had been told; and

(e) Why the investigators had failed to interview the respondent and Mrs Shimokawa separately.

101 The appellant submitted that his Honour should have concluded that the evidence of the investigators would not have assisted the respondent.

102 I do not agree that the evidence of the respondent's witnesses was weakened in the way submitted by the appellant because of the absence of evidence from the investigators. The respondent conceded at trial and on appeal that the conduct of the investigator who interviewed the respondent and Mrs Shimokawa was inappropriate. That concession was used at trial to cross-examine both the respondent and Mrs Shimokawa. That consideration played a significant part in his Honour's assessment of the evidence of the respondent and Mrs Shimokawa.

103 There is no evidence of any misbehaviour on the part of an investigator in relation to the evidence of Mr Perkins or Mr Josie McCaw. On the contrary, it is apparent that those persons were actively avoiding any contact with an investigator. Accordingly, it is speculative to submit that the evidence of an investigator would have eroded in any way the effect of the evidence of either Mr Perkins or Mr Josie McCaw.

104 The matters identified by the appellant which she submitted the evidence of the investigators would have clarified, was in fact before the Court as a result of the cross-examination of the respondent and Mrs Shimokawa. The particular investigator was identified. The questions asked by him were apparent from the statements prepared. The information provided by the investigator to those witnesses was before the Court when those witnesses gave their evidence. The cross-examination of the respondent and Mrs Shimokawa, by reference to the statements obtained, revealed that while there were discrepancies between the statements and their oral evidence, the discrepancies were minor. Finally, once it was conceded by the respondent that the manner in which he and Mrs Shimokawa had been interviewed was inappropriate, it mattered not why that had occurred.

105 His Honour gave very close consideration to the credibility of the evidence of Mrs Shimokawa and the respondent. His process of reasoning was careful and logical. Significantly, his Honour was critical of aspects of the respondent's evidence. Nevertheless, it was open to him to accept the evidence of Mrs Shimokawa without qualification, as he did.

106 These grounds of appeal have not been made out.

Conclusion

107 The critical evidence of Mrs Shimokawa, Mr Josie McCaw, Mr Kevin Perkins and the respondent was that each of them independently observed the appellant standing outside her vehicle at the time of the second collision. No basis has been put forward as to why that evidence should be regarded as "glaringly improbable" or "contrary to compelling inferences". No incontrovertible facts have been identified which cut across that evidence. Those witnesses were accidental participants in a major accident involving many vehicles, which no doubt left an indelible imprint on their memory.

108 As his Honour appreciated, it would be astonishing if the recollections of the event of Mr Josie McCaw, Mr Kevin Perkins, Mrs Shimokawa and the respondent were all incorrect and all incorrect in the same critical detail, namely that each of them observed the appellant standing outside her vehicle at the time of the second collision.

109 His Honour was entitled to make the assessment which he did of those witnesses. Each of them endured lengthy cross-examination. None of them resiled from the critical observation of the appellant's location at the time of the second collision. As his Honour pointed out, the fact that there were minor inconsistencies in detail between their accounts of the event reinforces, rather than undermines, the credibility of their evidence.

110 By way of contrast, the appellant had an obvious financial interest in alleging that she was within her vehicle at the time of the second collision. Her conversations with friends and family members do not provide the compelling support for her version of events, such as would allow this Court to overturn the strong factual findings of the trial judge.

111 The orders which I propose are:

(1) That the appeal be dismissed.

(2) That the appellant pay the respondent's costs of the appeal.

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Decision last updated: 24 September 2012