Fox v Percy

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow,Kirby JJ,McHugh J,Callinan J
• Judgment Date: 30 April 2003
• Neutral Citation: [2003] HCA 22,2003-0430 HCA A
• Court: High Court
• Docket Number: S88/2002
• Date: 30 April 2003

[2003] HCA 22

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ

S88/2002

Barbara Fox

Appellant

and

Megan L Percy

Respondent

Representation:

P Menzies QC with C R Burge for the appellant (instructed by Beston Macken McManis)

J D Hislop QC with P J Nolan for the respondent (instructed by Sparke Helmore)

Supreme Court Act 1970 (NSW), s 75A.

Fox v Percy

Appeal — Rehearing — Review of findings of fact based on trial judge's assessment of credibility of witnesses — Whether findings inconsistent with incontrovertibly established facts — Power of appellate court to set aside findings.

Appeal — Issue not raised at trial — Where argued that expert report based on matters not proved or supported by the evidence — Whether re-examination of facts by appellate court appropriate.

Appeal — Rehearing — Substitution of judgment of appellate court for that of trial judge — Whether re-trial an appropriate remedy.

ORDER

Appeal dismissed with costs.

1 Gleeson CJ, Gummow and Kirby JJ. This is an appeal from a judgment of the Court of Appeal of the Supreme Court of New South Wales 1. The issue in the appeal is whether that Court erred in reversing a judgment of the District Court of New South Wales. By that judgment, the primary judge (Herron DCJ) resolved a factual conflict at trial in favour of the appellant. A subsidiary question arises in the appeal as to whether, if the Court of Appeal was justified in upholding the appeal, the correct order for it to make was for a new trial, rather than the entry of judgment in favour of the respondent.

The background facts

2 Ms Barbara Fox (the appellant) was injured on 11 April 1992 when a horse she was riding came into collision with a Volkswagen Kombi Van driven by Ms Megan Percy (the respondent). The appellant claimed damages for negligence in respect of the respondent's driving of the motor vehicle. The crucial factual contest at the trial was whether the respondent's motor vehicle was on the correct, or incorrect, side of the road at the time of impact. Both the appellant and the respondent gave evidence that, at that time, they were on the correct side of the road. They could not both be right. The appellant's entitlement to damages depended upon the primary judge's accepting her version of the events leading to the collision.

3 The appellant was seriously injured as a result of the collision. The trial in the District Court did not take place until November 1999. It was heard over four days in Moruya, New South Wales. A number of facts, as accepted by the primary judge, were not disputed. The collision occurred on a narrow, unsealed, country road that was about seven metres wide. The respondent was driving her vehicle in a westerly direction, travelling downhill. At the point immediately prior to the collision there was an almost, but not completely, blind left-hand turn. The appellant was proceeding on a large half draught horse in an easterly direction. Immediately behind her, also on a large horse, was a companion, Mr Christopher Murdoch. The head of his horse was close to the near-side rump of the horse that the appellant was riding. Immediately before the collision, the horses were proceeding at about seven kilometres per hour. There was some dispute about the speed of the respondent's vehicle. However, the exact speed is immaterial. The primary judge accepted that it was not excessive to the circumstances 2.

4 The impact between the van and the appellant's horse happened when they came upon each other as the van turned the corner in the road. The collision was unexpected to the parties. The point of impact between the van and the appellant's horse was roughly head-on. Because that horse, and Mr Murdoch's horse immediately behind it, were both large and heavy, their combined weight approximated that of the respondent's vehicle. The application of the brakes by the respondent together with the impact brought the Kombi Van to a sudden halt. Both horses were forced backwards. The appellant's horse became entangled in the Kombi Van. Subsequently, that horse released itself; but it had suffered fatal wounds and after taking a couple of steps it fell over dead. The appellant was thrown onto the roadway landing at a point immediately in front of the respondent's stationary vehicle.

5 Soon after the collision, an ambulance and the police were summoned to the scene. The ambulance attendants arrived and, as the primary judge recorded, they stated that, when they arrived, the stationary Kombi Van was on its correct side of the road 3. The police officer who arrived (Constable Peter Volf) interviewed the appellant, Mr Murdoch and the respondent. He noticed, and recorded in a sketch in his notebook, that the respondent's vehicle was on its correct side of the road and that there were 10 metres of skid marks immediately behind it. Those skid marks suggested to Constable Volf ‘that the vehicle had at all material times … been on its correct side of the road’ 4. This discovery caused the constable to say to the appellant: ‘It looks like you were in the wrong’ 5.

6 Both the constable and the respondent detected the presence of alcohol in the appellant 6. This too was noted in the police record. The appellant declined to sign her statement in the police notebook, causing the constable to record that she had ‘refused to co-operate with Police in enquiries’. In evidence, the appellant explained that she was interviewed whilst being helped into the ambulance and felt that the police officer was antagonistic towards her. Later, at the Bega Hospital to which the appellant was conveyed, a blood sample was taken from her. It revealed that, at the time the blood was exacted, the appellant had 0.122 grams of alcohol per 100 millilitres of blood. The primary judge concluded that there was ‘no doubt that this amount of alcohol in her blood

would have affected her’ 7. However, he also concluded that, if indeed she had been on her correct side of the road, her consumption of alcohol was irrelevant to the cause of the collision 8.

7 The appellant was a person who had a great deal of experience with horses, virtually from her childhood 9. She was comfortable with the horse she was riding. She had acquired it a year earlier and had frequently ridden it. She was also very familiar with the road on which the collision had occurred. In her evidence, she adhered to her statement that she had been on the correct side of the road at the moment of impact. In her testimony, the respondent also adhered to her version of events. The primary judge was obliged to resolve this conflict of evidence.

The reasons of the primary judge

8 The primary judge accepted the police record, and in particular the discovery of the skid marks shown immediately behind the Kombi Van, wholly within the respondent's correct side of the road. However, his Honour concluded that there had been some animosity on the part of Constable Volf towards the appellant which, he felt, had ‘colour[ed] his investigation of the situation’ 10. In support of this conclusion, he instanced the fact that the officer had noted the clothing of the appellant, that she was ‘abusive towards police’ and that she had tattoos on the right cheek and smelt of alcohol 11. However, the printed form concerning ‘information to be obtained by police’, accompanying the police notebook, records that a note should be taken of clothing and of ‘any distinguishing features’ of persons interviewed.

9 At the trial, the appellant called Ms Christine Dzikowski as a witness. She had come upon the scene of the collision not long after the impact. She was adamant that, when she arrived, the Kombi Van was on its incorrect side of the road. However, the primary judge, whilst accepting that Ms Dzikowski gave honest evidence, also accepted that at its final point of rest, the vehicle was on its

correct side of the notional centreline of the road. He ascribed Ms Dzikowski's mistake to the very long delay between the events and the trial 12.

10 The judge recognised that the accepted position of the vehicle and the skid marks behind it constituted strong evidence against the appellant's version of events. Nevertheless, he concluded that the probabilities were that the collision had occurred when the respondent was driving on her incorrect side of the road. He said 13:

‘I come to the conclusion … that despite the skid marks that the accident occurred on the plaintiff's correct side of the road; and of course in that I do not accept the defendant herself that the accident had happened on her correct side of the road.’

11 In support of this conclusion the primary judge's reasons nominate three considerations. The first was his acceptance of the appellant's testimony (and thus the rejection of the respondent's). The second was his acceptance of the confirmatory testimony of Mr Murdoch. Thirdly, the judge said that he accepted the evidence contained in expert reports of Mr John Tindall, a traffic engineer.

12 Mr Tindall had been engaged by the appellant. He made two written reports. These were admitted into evidence and Mr Tindall gave no oral evidence. No reference was made to the skid marks in his first report. The record of the skid marks was only subsequently brought to his attention.

13 So far as Mr Murdoch was concerned, the judge accepted his evidence that, following the impact, his horse had been forced down an embankment which fell away from the road on the side on which the appellant and Mr Murdoch claimed they were proceeding. In his Honour's view this showed ‘that the probabilities are that his horse was juxtaposed to the horse ridden by the plaintiff in the way in which both he and the plaintiff say it was’ 14.

14 So far as the expert reports were concerned, the primary judge preferred Mr Tindall's opinion...