Suvaal v Cessnock City Council

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Heydon J,McHugh,Kirby JJ,Callinan J
• Judgment Date: 06 August 2003
• Neutral Citation: [2003] HCA 41,2003-0806 HCA B
• Docket Number: S384/2002
• Court: High Court
• Date: 06 August 2003

[2003] HCA 41

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Kirby, Callinan and Heydon JJ

S384/2002

Anthony Peter Suvaal

Appellant

and

Cessnock City Council

Respondent

Representation:

G O'L Reynolds SC with D R Conti for the appellant (instructed by McClellands)

D F Jackson QC with D T Miller for the respondent (instructed by Moray & Agnew)

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

Suvaal v Cessnock City Council

Negligence — Causation — Appellant suffered injury in bicycle accident — Factual finding that appellant was injured as result of bicycle coming into contact with potholes following loss of concentration — Version of events not advanced by either party — Whether sufficient evidence for trier of fact to make that finding — Whether trier of fact can decline to accept the versions of events advanced by the parties — Whether trier of fact can adopt a version of events not advanced or tested by either party — Whether rejecting a plaintiff's version of events amounts to a finding of credibility — Whether trier of fact entitled to consider alternative case, in drawing inferences and reaching conclusions, where alternative case open on the pleadings and evidence — Whether consideration of alternative case amounts in the circumstances to procedural unfairness.

Appeal — Powers of appellate court — Restrictions on disturbance of findings and conclusions of trier of fact dependent on impressions of the credibility of witnesses and consideration of the entirety of the evidence — Whether entitled to intervene in conclusion reached by trier of fact contrary to evidence of plaintiff — Whether trier of fact precluded from reaching her own conclusion as to probable facts different from that asserted by plaintiff based on other evidence — Relevant appellate principles.

ORDER

Appeal dismissed with costs.

1 Gleeson CJ and Heydon J. The appeal in this unusual case must be dismissed with costs for the reasons given by Callinan J, together with the following reasons.

2 Despite an ambiguous passage in the primary judge's reasons, it became common ground, at least in argument before the Court of Appeal, that there were no potholes in the intended path of the plaintiff as he travelled along the road, and if he hit potholes, this can only have been because his bicycle moved to the left, perhaps only to a small degree, and encountered potholes at the left hand edge of the road surface. The plaintiff's case, rejected by the primary judge, was that a motor vehicle forced him to the left. The primary judge, to the contrary, found that he moved left because of a loss of concentration on his part. The Council contended that his leftward movement could have been caused by a failure in the integrity of the handlebars in normal use on the road before he ran into the potholes at the left side of the road.

3 The case presented numerous difficulties for the plaintiff and for the primary judge. There was only one eye-witness, the plaintiff, and he was obviously an interested witness. He was giving evidence at a trial conducted six years after the events in issue. He gave numerous out-of-court versions of events, some of which were inconsistent with others, and some of which were less complete than was desirable from his point of view, given the nature of the case presented at the trial. The pain and shock of the accident may well have deleteriously affected his powers of memory and narration in its immediate aftermath. The continuing pain of the plaintiff's injuries and the medication he was given may well have similarly affected his powers of memory thereafter. The evidence of numerous other witnesses also was in conflict. Since the plaintiff was travelling at 25 miles per hour, ie about 40 kilometres per hour, which is more than 11 metres per second, the intervals of time within which the relevant events were happening were extremely small. If the handlebars failed in normal use on the road without the bicycle striking a pothole first, it might have hit a pothole a metre or two later — one or two tenths of a second later. This posed a difficulty for the primary judge when determining the precise order of events as it might not have been prudent to rely on the plaintiff's account of the order of events. The difficulties any witness in the plaintiff's position might have in perceiving whether the handlebars failed just before the potholes were struck or simultaneously with them being struck are obvious.

4 During the examination in chief the plaintiff said that a station wagon brushed his right leg, hit his right hand and forced him ‘into the pot holes and the rough edge of the road’. The evidence continued:

‘Q. What happened to you?

A. I bounced into a couple of pot holes and then I went into the rough edge of the road and bounced a couple more times and my handle bars went around like that. I had them like that and on the handle bars and after I hit a couple of pot holes and then I bounced into the rough edge of the road and then they went around like that.

Q. You are doing an anti-clockwise motion?

A. Yes, they were like that and I bounced a couple of times and then went on the rough edge of the road and it just went around like that. (Demonstrated swerving anti-clockwise to 90 degrees.)

Q. When that happened were you able to steer the bike?

A. No. I had balanced but I could not steer it.

Q. And what happened?

A. It went on to the dirt and to the left and it went straight across to the right hand side of the road.’

5 In cross-examination the plaintiff said:

‘Q. When you say the car forced you off the road can you just tell us a little more about that. Are you saying that you felt some contact with some type of car on your right side?

A. Brushed up on my thigh.

Q. Are you then saying that you moved your bike to the left or was it forced to the left?

A. No, the car forced me to the left.

Q. So you didn't alter your steering direction, the car forced the steering direction to be altered?

A. Yes.

Q. Are you sure of that?

A. Yes.

Q. When that happened what is the first thing that you became aware of from the point of view of feeling roughness?

A. I hit some pot holes.

Q. Were the pot holes that you hit not filled in with tar or –

A. Yes.

Q. So they were actually holes not filled in holes?

A. It happened that quick, how could I estimate.

Q. I am asking, if you can't you can't?

A. They might have had tar but sunken in, but I know I hit pot holes.

Q. How many?

A. I remember bouncing two or three times and my handle bars coming around.’

6 Later the plaintiff said, while drawing a sketch on a piece of paper:

‘Q. … I want to see what your direction was?

A. If I went into the rough here I bounced a couple of times.

Q. When you say rough, you mean the edge of the bitumen and the pot hole?

A. Yes, and the patches.

Q. And the patches after patches?

A. Yes, my handle bars went around like that.

Q. Did you hear a snap?

A. No, it just went around.

Q. The handle bars suddenly went around and you are indicating an anti clockwise direction to a 90 degrees, approximately?

A. Whether it was right at that time, I don't know. That's after bouncing in the holes I went on to the dirt a bit, out on to the dirt a bit. I went out on to the dirt and back across. I don't know if I went that way, that way or that way.’

7 The primary judge found:

‘it was not the presence of a motor vehicle which caused the plaintiff to veer and change the direction of his steering of the bicycle. Nor did the motor vehicle hit or brush against his right thigh or right hand.’

8 This finding must have had a significant effect on the plaintiff's credibility, at least as a reliable narrator of events. That was not the only flaw the primary judge identified. The primary judge also found that the plaintiff had given contradictory evidence about whether he could remember anything in the period 3-16 February 1993, immediately after the accident. In addition, the primary judge referred to variations in the plaintiff's evidence about the potholes and patches in the road and the difficulties he would have had in observing them at the moment he lost control of the bicycle. The primary judge then stated:

‘These factors do not mean that I find the plaintiff an untruthful witness. However, it has meant that I have examined his evidence with caution.’

9 In setting out these general conclusions, the primary judge did not mention that she also later recorded her rejection of the plaintiff's denial that he had adjusted the handlebar on his bicycle to a point higher than the recommended maximum, and her rejection of a further denial by him that he had filed the lower part of the handlebar.

10 However, even if the primary judge formed the opinion that the plaintiff was, these instances apart, sincere, honest and reliable, the fact remains that she did not accept a fundamental element of his version of the events just before he was injured, even though it was an element to which he had stubbornly adhered.

11 Many, but not all, of the arguments advanced by the plaintiff in criticism of the Court of Appeal's conclusions rely on the proposition that the key findings of the primary judge were credit-based. The question as to whether these findings were credit-based or not is important for two reasons. First, if those findings were not credit-based, these arguments do not arise. Secondly, and more crucially, the question whether the relevant findings were credit-based or not casts light on the nature of the trial and the question whether any of the plaintiff's arguments can be entertained.

12 In submitting that the primary judge's finding that the plaintiff hit potholes on the left hand side of the road was credit-based, counsel for the plaintiff relied on two passages in the primary judge's reasons. One was:

‘the plaintiff hit potholes which caused a change in the...