Collins v Tabart [2008] HCATrans 151 (16 April 2008)

Last Updated: 17 April 2008

[2008] HCATrans 151

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S638 of 2007

B e t w e e n -

PETER CHARLES COLLINS

Applicant

and

JOHN KIMBERLEY TABART

Respondent

GLEESON CJ
KIRBY J
HAYNE J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 16 APRIL 2008, AT 10.16 AM

Copyright in the High Court of Australia

MR B.M. TOOMEY, QC: May it please your Honours, I appear with my learned friend, MR G.A. FARMER, for the appellant. (instructed by Walker Smith Solicitors)

MR S.G. CAMPBELL, SC: I appear with my learned friend,
MR J.P. GUIHOT, for the respondent, may it please the Court. (instructed by TL Lawyers)

GLEESON CJ: Yes, Mr Toomey.

MR TOOMEY: Your Honours, may I first ask your Honours to deal with a summons which was filed yesterday for leave to amend the notice of appeal?

GLEESON CJ: Is that opposed, Mr Campbell?

MR CAMPBELL: No, your Honour. If the Court feels it is consistent with the special leave granted the respondent has no objection.

GLEESON CJ: Yes, you have that leave.

MR TOOMEY: Thank you, your Honour. Yours Honours, this is one of the matters which fairly rarely comes before your Honours now, a running-down case. It comes before you because the appellant’s claim that the judgment founded on a misunderstanding and misstatement of the evidence of a crucial witness was deemed sufficiently strong, one assumes, to grant leave.

At the outset, I concede that if we do not satisfy your Honours that there was such an error that there is nowhere else to go. There are other matters of more or less importance but that is the fundamental ground. The case concerned an accident on the F3 freeway north of Sydney, the Sydney/Newcastle freeway, which becomes the Pacific Highway, one of the busiest roads in Australia. Shortly after 1.30 on a brilliantly sunny winter afternoon on a straight stretch of road, straight for at least a couple of kilometres, a collision occurred between the truck driven by appellant and the car of the defendant.

The contest between the parties, as is conceded by my learned friend, is accurately stated in our submissions to the Court. The ultimate issue to be decided by the learned trial judge was whether the accident was caused by the appellant’s truck crossing into the breakdown lane on the freeway where the respondent’s Subaru had been stationary for some two minutes or whether the Subaru had in fact crossed the line of travel of the truck, which was in lane 1, next to the breakdown lane, without warning and created the emergency which resulted in the accident.

KIRBY J: One would think that the objective evidence as to where the impact occurred would be determinative or highly supportive of the demonstration of how that had happened, differentiating between the two versions.

MR TOOMEY: Yes, your Honour. The respondent’s evidence was that he parked his Subaru about two minutes before the accident with the near side 30 centimetres from the Armco which marked the western edge of the freeway.

KIRBY J: Near side being the left-hand side?

MR TOOMEY: The passenger side. The breakdown lane was 3.2 metres wide, the Subaru was about 1.7 metres wide. That meant that the driver’s side of the Subaru when parked would have been 1.2 metres in from the fog line which marked the edge of the first lane of the freeway. The objective evidence established beyond any doubt, I think, that the first impact did not occur at 1.2 metres into the breakdown lane, but at 0.3 metres. In other words, it established that the position in which the respondent claimed his vehicle had been parked was erroneous to the extent of just under 1 metre.

The question arose, in any event, wherever the Subaru was in the breakdown lane, if it was parked there, what would cause an experienced truck driver who was driving his truck, everyone agreed, at 80 to 85 kilometres an hour on the freeway, what would cause him to depart from his course in the first lane and enter the breakdown lane so as to cause the collision with the Subaru? The appellant said that that had been caused by the respondent’s vehicle coming across in front of him without warning and causing him to go into the breakdown lane where the collision occurred with the vehicle coming across. The respondent, as I have said, claimed that he had been stationary for two minutes, and that he was then struck by the truck without any warning.

Her Honour resolved the difficulty by accepting what she stated to be the evidence of Ms Ferguson. Ms Ferguson had been driving in lane 1 behind the truck, had been travelling at a considerably higher speed than the truck. She said she was travelling at 110 but there was other evidence that she was travelling at considerably more than that. In any event, she came up on the truck. She moved out to pass the truck and when she was near the driver’s side rear of the truck and dog trailer she said the truck came sharply across onto her without any warning, struck her and pushed her vehicle over to the right hand centre barrier of the expressway, in other words, pushed her from just coming into lane 2, across two and three and into the wires which mark the centre of the expressway.

She said on a number of occasions that the first movement of the truck that she saw was this violent swinging across associated with the side of the truck coming up into the air which her Honour associated and we, with respect, agree must have been caused by the left side of the truck running over the rear of the Subaru so causing it to tip to the right.

HAYNE J: What do you mean by “associated with”? Are you accurately describing her evidence? See pages 362, 363. I have in mind particularly 363 line 28:

By memory, then the truck seemed to go up into the air. By then it felt like I’d also been hit –

A sequence of events commencing, as I had read it at least, at 362 line 41:

I noticed that the truck swerved quite heavily into my lane.

MR TOOMEY: Yes, your Honour.

HAYNE J: What do you mean by “associated with the truck going up into the air”?

MR TOOMEY: Because, your Honour, we read Ms Ferguson’s evidence as allowing only one swerve over to the right by the truck. She records a swerve over and she records the left-hand side of the truck rising into the air. At 367, there are two lots of line markings there, but on the lighter line markings at about 32:

Q. When did you first see the truck come up in the air?

A. After he swerved into lane 2 and after the truck went up into the air, like, from the left-hand side, and then – it’s sort of hard to remember . . .

Q. When it came over first, when you saw it swerve into lane 2, was the cabin seesawing then?

A. No, it was a hard swerve, like you were going to miss something, and then that’s when I noticed the front left-hand side of the truck came up into the air.

Now, her Honour found, as one would expect, that the “coming up in the air” was associated with the collision with the Subaru. Now, it is not perfect, with respect, your Honour, but on Ms Ferguson’s evidence our respectful submission is the only reading was that there was the hard swerve over to the right associated with the left-hand side of the truck coming into the air. Her Honour set out what she said to be Ms Ferguson’s evidence at 688 point 34 where she said:

On the plaintiff’s recollection, he swerved to the left instantly.

That is, when he saw the vehicle in front of him:

On Ms Furgerson’s recollection, he veered right when she was along side the rear of the trailer, then left, then right again.

At page 689, 56 her Honour said this:

Although Ms Furgerson, not surprisingly, recalls a series of almost instantaneous events, there was a distinct series of events:

•	She was travelling in lane 1 behind the plaintiff’s vehicle (prime mover and trailer).

•	She moved right into lane 2 to overtake the plaintiff’s vehicle.

•	The (prime mover) truck drifted into lane 2, and she reacted by moving into lane 3 to avoid the truck.

•	The truck then moved to the left.
•
•	The left side of the cabin of the truck (the prime mover) rose up and the truck rode to the right again, and her vehicle was pushed further to the right, being pushed into the median strip cable fence on the right side of the carriageway.
•
•	The truck then swung back to the left and ploughed off the road through the Armco railing.

Now, it is our respectful submission that her Honour has there interposed a movement for which there is no evidence whatsoever, that is, the prime mover drifted into lane 2 and she reacted by moving into lane 3 to avoid the truck, the truck then moved to the left. Her Honour used that view of the evidence to explain how the accident happened because her findings, which appear at 709, 52, are a more compendious statement of what I have just read. But at 710 about line 12:

•	The plaintiff, finding himself in a clear stretch of roadway, set about his usual checks, checking via his right then his left mirrors that the various chains on his truck and trailer were secured properly. That process took at least 5 to 6 seconds.

•	At about the same time, in lane 2, Ms Furgerson started to overtake the plaintiff’s vehicle. She was coming up towards the wheels on the back of the trailer, when the prime mover moved to the right occupying about half of lane 2, which caused Ms Furgerson to move quickly to lane 3.

•	Almost at the same point in time, the plaintiff corrected the direction of his drift and drifted or veered to the left, such that Ms Furgerson recalled that “when he swerved it was like he’d come halfway into lane 2” and the plaintiff’s vehicle then moved into the left.

GLEESON CJ: Is this checking to which reference is made that which is described by the plaintiff in his statement to the police at page 428?

MR TOOMEY: Yes, your Honour.

GLEESON CJ: At the bottom of 428?

MR TOOMEY: Yes, your Honour.

GLEESON CJ: That is his recollection of what he was doing immediate. He was looking in his rear-vision mirror to see that things were not falling off the back of his truck.

MR TOOMEY: That is so, your Honour. He checked one side, looked across the front, checked the other side. He said in his first interview that he thought it had taken about 50 seconds but the police did a reconstruction with him and it was said that it took about five or six seconds.

GLEESON CJ: Well, at page 429 he gives his – that I take to be his first account to anybody of what happened.

MR TOOMEY: Yes, your Honour, that is his first version, although he had put in a claim form but that is very restricted. Now, your Honours, the evidence of Ms Ferguson was used by her Honour to justify her finding that the truck had veered or drifted to the right into Ms Ferguson’s lane and in correcting had gone over into the breakdown lane and hit the Subaru. In our respectful submission, there never was any such evidence from Ms Ferguson. There is no evidence from her that the plaintiff came over in a drifting or veering motion, moved back into the left, and then came suddenly over. As we pointed out to your Honours on page 367, Ms Ferguson was dealing with:

Q. When it came over first, when you saw it swerve into lane 2, was the cabin seesawing then?

A. No, it was a hard swerve, like you were going to miss something -

Now, the crucial words in that question and answer are, “When it came over first”, but when her Honour reproduced that statement in her judgment, she reproduced the answer, but omitted the question, which was “When it came over first” and added the words – this is at appeal book 691. This is a crucial indication, in our respectful submission, of her Honour’s misunderstanding of the evidence.

HAYNE J: It is cited at 691, lines 25, 26, thereabouts?

MR TOOMEY: Thank you very much, your Honour. Yes. That is where she sets out the whole of it, your Honour, when it came over first, but she repeats it as support for her proposition that that was on the second occasion that the truck had come over. I will come back to that, if your Honours will allow me to. I have just lost my note of where it is. I am sorry, your Honours, it is on that page. It is 691, about 44, the figure 17 appears:

...Ms Ferguson stated that the truck’s movement from lane 1 to lane 2 “was a hard swerve, like you were going to miss something, and that’s when I noticed the front left-hand side of the truck came up into the air”. Ms Ferguson confirmed that when the truck went up into the air, the cabin of the truck was still partly in lane 1.

So her Honour is there reproducing the evidence which appears further up the page in answer to - - -

HAYNE J: No, she is not. She is reproducing counsel’s submission, is she not?

MR TOOMEY: Yes, your Honour, but our submission included the words “when did it first come over, when did you first see the truck come up in the air”. Her Honour omits those words from the statement of what counsel submitted and then adds her own words:

That was after the truck had moved back from lane 2 into lane 1, after having struck the defendant’s vehicle.

But that was not so at all. What the witness was answering was:

Q. When did you first see the truck come up in the air . . .

Q. When it came over first, when you saw it swerve into lane 2, was the cabin seesawing then?

A. No, it was a hard swerve –

“When it came over first.” Her Honour reproduces that evidence and then says:

That was after the truck had moved back from lane 2 into lane 1, after having struck the defendant’s vehicle.

HAYNE J: Sorry, I am obviously being slow about this. Can you explain it to me again because I just do not follow what you are telling me?

MR TOOMEY: Yes, your Honour. The crucial question was whether the truck, so far as Ms Ferguson’s evidence was concerned, was whether the truck came over once, having struck the Subaru, and came over violently in such a way that it pushed Ms Ferguson eventually into the wires in the middle of the expressway. Ms Ferguson said when it first came over “it was a hard swerve”. Her Honour said, Ms Ferguson said that the truck drifted or veered into her lane, then went back, then came over in a hard swerve. She reproduced at 691, 27 the evidence:

Q. When it came over first, when you saw it swerve into lane 2, was the cabin seesawing then?

A. No, it was a hard swerve –

Her Honour reproduced that evidence without the question, and said:

That was after the truck had moved from lane 2 into lane 1, after having struck the defendant’s vehicle.

But there was simply no evidence of the truck having made this move, this drift or veer into lane 2, forcing it to correct into lane 1, over-correct one assumes, and hit the Subaru.

KIEFEL J: Is the implication, from the way her Honour the trial judge approached it, that the plaintiff, the truck driver, had lost control in this movement, it is suggested he had lost control, whereas - - -

MR TOOMEY: He had over-corrected, your Honour.

KIEFEL J: - - - he had over-corrected.

MR TOOMEY: Yes, and that that had caused the accident, whereas, of course, Ms Ferguson’s evidence contained no statement which equated with a drift or veer, a correction and then a hard swerve. The plaintiff’s case was that indeed there was a hard swerve over because he had steered into the breakdown lane in attempting to miss a vehicle coming over on him and struck it and had then, out of control, flown across the expressway. By the addition of the truck drifting or veering into Ms Ferguson’s lane and then having to correct, a layer of fault was added to the behaviour of the truck, which did not exist in Ms Ferguson’s evidence.

KIEFEL J: Implying that the truck driver was out of control before the Subaru really comes into the picture.

MR TOOMEY: Either that, your Honour, or, with respect, negligence leading to him coming out of control by over-correcting, but one way or the other putting the fault on him and exculpating the Subaru.

GLEESON CJ: Where did the truck end up?

MR TOOMEY: It ended up through the Armco down in the bush, your Honour. It swung across to the right and then curved around and went through the Armco.

GLEESON CJ: The Armco on the side of the breakdown lane?

MR TOOMEY: Yes, your Honour, the western Armco.

GLEESON CJ: So it went east into lane 2 or 3?

MR TOOMEY: No, I think it only went as far as lane 2, your Honour.

GLEESON CJ: I see, and then back again through the breakdown lane?

MR TOOMEY: Yes, but in a curve, and after the impact – in a curve. We have - - -

HAYNE J: Is it convenient to look at this document which is the sketch plan?

MR TOOMEY: Yes, indeed. Your Honours, can I also hand up five colour copies of the sketch done by the police at the scene on the day? It was of great weight at trial. Can I first say that that document is compressed so it does not purport to represent the actual distance in which the events happened. It is a compressed representation of the various points which are then taken out and accurately represented in the CAD map.

GLEESON CJ: Is it common ground that those marks identified as “gouges” in this document represent the point of impact?

MR TOOMEY: Yes, your Honour.

GLEESON CJ: So the marks in the road described as “gouges” are where the truck and the Subaru came into collision?

MR TOOMEY: Your Honour, I think there is a difficulty. If your Honour sees down the bottom there is a red arrow with a circle – I am sorry, this is on the handwritten sketch, towards the right-hand side at the bottom, a red arrow with a circle.

GLEESON CJ: Yes.

MR TOOMEY: That indicates that the red figures represent the distance east from the Armco, that is, the distance east of the western edge of the expressway. If you look at the gouge marks your Honours will see that against two of them the red figures “2.9” appear, and those represent, as is apparent, the first of the gouges 2.9 metres east of the Armco.

GLEESON CJ: In the breakdown lane?

MR TOOMEY: In the breakdown lane, your Honour. In old terms, a foot into the breakdown lane, 30 centimetres into the breakdown lane.

GLEESON CJ: Now, rightly or wrongly, the Court of Appeal regarded the location of those gouge marks taken together with the final location of the Subaru as the crucial piece of evidence, following in that respect, the opinion or the report of - - -

MR TOOMEY: Mr Grzebieta, your Honour, well-known Polish scholar, Grzebieta. Well, your Honour, Mr Grzebieta’s findings we can live with because they established that the Subaru at the time of impact was most likely stationary, they concede the possibility it was not, and the plaintiff’s evidence was that when he saw the vehicle coming across it was all but stopped, in other words, it was going very slowly into the breakdown lane, so that does not trouble us.

But 2.9 metres from the breakdown lane, which is the mark of the first point of impact, is inconsistent to the extent of about a metre of where the defendant had said he had been stationary, close and parallel to the Armco for two minutes before the accident. Mr Grzebieta found that indeed the point of impact was only a foot into the breakdown lane, not 1.2 metres as it would have been on the defendant’s version of where he was parked.

GLEESON CJ: So you say your argument can live with the proposition that the Subaru had either stopped or almost stopped by the time of the collision?

MR TOOMEY: Yes, your Honour, because our evidence was that it was going across our lane towards the breakdown lane very slowly, and it could have stopped or been so close to stopped that it is within Professor Grzebieta’s conception. I am reminded by my learned junior that that is something that the plaintiff said to the police well before there were any experts poring over the objective signs to see whether it was going or not going, or whether it was moving fast or moving slowly.

HAYNE J: But were not the competing cases at trial, the car was parked in the breakdown lane, and the version of events which the appellant propounded was that the car came across his bows at a time and in a way that created an emergency for him.

MR TOOMEY: That is right, your Honour.

HAYNE J: How is that consistent with the car proceeding very slowly in lane 1, but moving across to the breakdown lane?

MR TOOMEY: Well, the plaintiff says that he saw the vehicle when it was only a very short distance in front of him and moving towards the breakdown lane and he swung to the left hoping he could avoid it. He could not and did not.

CRENNAN J: I think he said the brake lights were shining.

MR TOOMEY: He did, your Honour. I am grateful to your Honour – what drew his attention first was these brake lights, and that is when he looked back to the front after checking his chains, he looked back to the front and he saw the brake lights of the vehicle in front of him.

HAYNE J: But you say the key to this appeal is your demonstrating that the trial judge injects an extra movement into the description of Ms Ferguson about the movements of the truck.

MR TOOMEY: That is correct, your Honour.

HAYNE J: The injection you say occurs only at 691, or elsewhere?

MR TOOMEY: No, it appears elsewhere too, your Honour. It appears in her findings which are at 709, 51 to 710, 34 - 710 about 15:

•	At about the same time, in lane 2, Ms Furgerson started to overtake the plaintiff’s vehicle. She was coming up towards the wheels on the back of the trailer, when the prime mover moved to the right occupying about half of lane 2, which caused Ms Furgerson to move quickly to lane 3.

•	Almost at the same point in time, the plaintiff corrected the direction of his drift and drifted or veered to the left, such that Ms Furgerson recalled that “when he swerved it was like he’d come halfway into lane 2” and the plaintiff’s vehicle then moved into the left.

•	. . . However, part (the left side) of the plaintiff’s vehicle, in fact entered the left side breakdown lane. By the most unfortunate co-incidence this occurred at just about the point that the defendant had pulled over his vehicle.

•

As the plaintiff’s vehicle moved to the left into and passed through the breakdown lane, the front of the plaintiff’s vehicle quite literally ran over the top of the rear of the defendant’s parked car, causing the plaintiff’s cabin to ride up on the left side, and the plaintiff’s vehicle to move to the right again.

•	As the plaintiff’s vehicle verged to the right, it pushed Ms Furgerson’s vehicle off the road.

Now, that is, your Honours, at a second movement. He has struck Ms Ferguson’s car on a second movement, for which we say there was no evidence. That movement did not occur. There was in fact some corroboration of that from a statement in evidence from a Ms Hegarty who was also driving north on the freeway but was behind the vehicles. Part of her statement is reproduced at 695. Perhaps I should take your Honours to the full statement to show that there is nothing which modifies that - 479, your Honours.

In paragraph 4 at line 40:

After about 40 minutes of driving I remember I changed lanes from the lane closest to the break down lane to the middle lane. It was just past the Ourimbah Interchange, just as you start to go up a hill, that I remember seeing a large truck fly up in the air about 25 to 35 metres ahead of me. It was happening slightly to my left. I looked in the direction and watched the truck as it kept going up in the air. It seemed to go a fair way up in the air. I then saw a silver car in the breakdown lane. It was stationary. I could see that it was badly damaged along the roof and drivers side. As this happened the rear of the truck seemed to swing out to my right and hit a white car that was just ahead of me. The white car then drove further to the right and drove along the steel cable fence in the middle of the road. I then looked back to the truck and watched as it hit large green road sign and then crashed through the steel side railing. All this happened within a split second.

Now, that is the plaintiff’s version of what happened. Added to that by her Honour is a movement over, an over-correction back, for which we say there was no evidence whatsoever.

HAYNE J: Would Ms Hegarty’s evidence support page 710 at approximately line 29, the dot point reading:

As the plaintiff’s vehicle verged to the right, it pushed Ms Furgerson’s vehicle off the road.

MR TOOMEY: I am sorry, your Honour, I have not got the point.

HAYNE J: Line 29 on 710, the dot point:

As the plaintiff’s vehicle verged to the right –

Would Ms Hegarty’s account:

As this happened the rear of the truck seemed to swing out to my right and hit a white car that was just ahead of me.

Would that have supported the view expressed in that dot point?

MR TOOMEY: Only, your Honour, as I understand that dot point, that is the supposed second movement of the truck across, whereas we say the proper view of Ms Ferguson’s evidence is that she was driven across the road and felt a bang on the first hard swerve of the truck. Your Honours, the Court of Appeal - - -

GLEESON CJ: Just before you pass on, Mr Toomey, the gouge marks are where the collision occurred?

MR TOOMEY: Yes, your Honour.

GLEESON CJ: I just want to be sure what exactly collided with what. I mean, the truck had a bullbar on the front of it, is that right?

MR TOOMEY: Yes, your Honour.

GLEESON CJ: And did it hit, as it were, square on the boot of the Subaru or did it hit the driver’s side of the rear - - -

MR TOOMEY: No, it hit the driver’s side, your Honour. The left front of the truck rode over the right rear of the Subaru.

GLEESON CJ: The professor, as appears from the bottom of page 586, attached importance to the fact that there was no observable lateral damage to the guardrail.

MR TOOMEY: Yes.

GLEESON CJ: Presumably because, if the truck had collided with the driver’s side of the rear of the Subaru which was in the act of crossing into the breakdown lane at the time, that might have been expected to force the Subaru into the guardrail.

MR TOOMEY: Your Honour, the Subaru was in fact forced to the left, as is shown by both the - - -

GLEESON CJ: But not into the guardrail, apparently.

MR TOOMEY: No, well, it finished up within a whisker of the guardrail, having been struck about 1.3 metres out from the guardrail. If the gouge marks accurately represent where the first impact occurred, it occurred with the passenger side of the Subaru 1.2 or 1.3 metres out from the guardrail.

GLEESON CJ: According to your client, in the version he gave to the police on page 429 – and let us add to this that the Subaru was either moving very slowly or had virtually stopped - - -

MR TOOMEY: Yes, your Honour.

GLEESON CJ: - - - he tried to avoid the Subaru by slipping around on the left side of him in the breakdown lane.

MR TOOMEY: Yes.

GLEESON CJ: That is what he said. That is not easy to reconcile with the actual point of collision.

MR TOOMEY: No, your Honour. It is, with respect, apparent that in the agony of the moment the plaintiff has not accurately described the precise movements, but if your Honours look at the handwritten sketch, you will see where the gouge marks appear, which have the mark “2.9” on them. You will see that there is then a series of gouge marks curving down to the left which are said to be, by the professor and the police, where the Subaru was driven to by the impact, that is, down towards the guardrail. Those are the curving marks just up from the corner of the Subaru.

GLEESON CJ: You say, do you, that you can live with these conclusions at 564?

MR TOOMEY: Yes, your Honour, we can. Now, your Honours, the - - -

GLEESON CJ: Well, one of them is that the Subaru was most likely facing north, parallel to the white line.

MR TOOMEY: Yes.

GLEESON CJ: In other words, heading due north.

MR TOOMEY: Yes.

GLEESON CJ: Not heading north-west.

MR TOOMEY: Well, your Honour, it is most likely, and it is possible, of course, that the Subaru could have come into the breakdown lane at a shallow angle and been more or less parallel. It is not suggested anywhere that it was coming at a right angle across lane 1. But, your Honour, there is no doubt that the plaintiff has a - - -

HAYNE J: I am sorry, can I just stay with that description you have given?

MR TOOMEY: Yes.

HAYNE J: How is that consistent with anything other than the plaintiff not keeping a proper lookout? How is it consistent with any negligence on the part of the defendant?

MR TOOMEY: Well, the negligence on the part of the defendant, your Honour, would be crossing into the path of the truck, whether the - - -

HAYNE J: Slowly, on this analysis, so slowly that it is able to end up parallel with the Armco?

MR TOOMEY: Well, your Honour, if on a freeway it moved into the path of a large truck at a point where the large truck was unable to avoid it, there would certainly be questions of contributory negligence, but - - -

HAYNE J: Yes, and that indicates a quick event, not the Subaru moving at a very slow rate of speed.

MR TOOMEY: Well, your Honour, can I come back to that because part of the difficulty of this case is in considering how the accident happened and, if it did not happen as the plaintiff says, how did it happen? Now, her Honour, as I hope I have demonstrated, arrived at the conclusion that the accident had happened because the truck had negligently gone into Ms Ferguson’s lane, had over-corrected and gone into the breakdown lane. We submit that there is simply no evidence that that happened, therefore it is necessary to find an alternative explanation for how the accident happened.

I should say in respect of what we say is the misstatement of evidence by her Honour, that that was at the forefront of our appeal at page 735 of the book at paragraph 30 about line 55, after her Honour’s findings:

The appellant contended that these findings were also erroneous and they were not a correct summation of Ms Ferguson’s evidence. In particular, it was submitted that at no stage did Ms Ferguson say that the appellant had drifted into lane 2, then veered back to the left and then back to the right forcing her into the safety cables.

The respondent contended that not only did her Honour correctly summarise Ms Ferguson’s evidence, there was evidence of skid marks on the roadway that indicated that prior to the collision with the respondent’s vehicle, the appellant had drifted into lane 2, and then swung left and right again finally forcing Ms Ferguson into the safety cables on the right hand side of the road.

Now, your Honours, nowhere did the Court of Appeal analyse the question of whether or not her Honour had correctly stated Ms Ferguson’s evidence; that is the lot of it. Although it was at the forefront of our appeal, that is all the attention the Court of Appeal gave it.

GLEESON CJ: Rightly or wrongly that seems to be because the Court of Appeal thought that the evidence about the gouge marks and the conclusions expressed on page 564 were something with which your case could not live.

MR TOOMEY: Yes, your Honour.

GLEESON CJ: I must say, I can understand the possibility of a misunderstanding because until I heard your argument this morning I had not realised that you were willing to accept that the Subaru was either stationary or almost stationary at the time of the collision and pointing due north.

MR TOOMEY: Yes, well, your Honour, the due north we might have a bit of difficulty with, but - - -

GLEESON CJ: I mean heading straight for Taree.

KIRBY J: But you have difficulty with - - -

MR TOOMEY: Or Wingham, your Honour.

GLEESON CJ: Wingham, yes.

KIRBY J: You have difficulty with both, do you not, really? I mean, if you are cutting across the traffic, which is your theory of the case, then (a) it is very unlikely that he would have reached total stationary position, and it is even more unlikely that he would be parked neatly in the safety lane as is shown in this diagram.

MR TOOMEY: I am sorry, which diagram?

KIRBY J: I mean, neatly and parallel to the side of the highway.

MR TOOMEY: Which diagram is your Honour referring – the CAD note.

KIRBY J: I am referring to the sketch plan of F3.

MR TOOMEY: Yes, but, your Honour - - -

KIRBY J: I mean, you would expect at the very least that he would be - - -

MR TOOMEY: He is pushed in there. That is after the accident. That is where he finishes up, hard against the guardrail after the accident, your Honour. It is not where he was.

KIRBY J: Yes, but he is not going to be going at a different angle, is he? He is going to be at roughly the angle at which you say you ran over the corner of him.

MR TOOMEY: Well, your Honour, with respect, that is not entirely clear, because at the impact the Subaru was pushed around to the left - its front describing a curve to the left, which would suggest that it may indeed have been pointing slightly to the left.

KIRBY J: Your basic problem, though, in this Court is that you have ended up, you have had the case at trial and you say mistakes were made. The Court of Appeal found two mistakes but said they were not material. You therefore face effectively concurrent findings of fact against you. You have to get us to disturb those findings of fact. Normally, what you would then do would be to try to look at some really strong objective evidence that either in contemporary documents or in some other way, make it impossible to accept the conclusion that was reached at trial and then at the Court of Appeal. Now the only matter that you have that is totally objective is the phone calls.

MR TOOMEY: Yes.

KIRBY J: But they do not make much sense on either case.

MR TOOMEY: They do, with respect. I will have something to say about that - - -

KIRBY J: How do you explain the telephone to the emergency number? What is your theory as to why the respondent telephoned the emergency number?

MR TOOMEY: It is not an emergency number, your Honour, it is his message bank.

KIRBY J: It is his what?

MR TOOMEY: Message bank.

KIRBY J: Yes, and your theory is that he was trying to see if there was any message from the real estate agent?

MR TOOMEY: Well, your Honour, it is – 40 seconds before the call to his message bank, there was a call to his message bank which lasted 34 seconds. Now, that 34 seconds would include “Hello, you have reached the message bank of Bob Smith, speak clearly and leave the message” and what have you. But 34 seconds, then 6 seconds after the end of that, there is a call to the message bank. Now, the explanation of that, we say, since the defendant was going to Wyong to have a look at a property and said he was going to ring the real estate agent to make sure he could see it, the explanation is that he rang the message bank to see who had left the call. Then, shortly after that, the call to the real estate agent’s office began which terminated on the collision, which was still in progress when the collision occurred.

KIRBY J: What does that demonstrate?

MR TOOMEY: Well, your Honour, it demonstrates first that the defendant had given false evidence.

KIRBY J: Well, he said he would never, ever, ever use his mobile phone in a car.

MR TOOMEY: Your Honour, he said more than that. He said that he was physically unable – he demonstrated he had very large hands. In terms he said he was physically unable to use his telephone and had never used his telephone on the freeway. Now, our case was that if he was, in fact, coming into the breakdown lane at the time of the collision, rather than stationary there for two minutes, that he was doing so while he was talking on the telephone because he had been on the telephone for 65 seconds before the collision occurred. That is the weight of the telephone call.

KIRBY J: But that does not demonstrate that he was not stationary in the safety zone.

MR TOOMEY: No, no, your Honour.

KIRBY J: He could have been having the – and that is the essential thing you have to disturb. That is what he says, and that is what the trial judge accepted.

MR TOOMEY: Yes.

KIRBY J: That he was stationary. Mobile phones do not demonstrate one way or another on that. Do you accept that?

MR TOOMEY: Yes, your Honour.

KIRBY J: So we are then into the evidence of Ms Ferguson.

MR TOOMEY: I am sorry, with one caveat on the mobile phone, your Honour. The mobile phone does prove that he made a telephone call on the freeway and that is of importance when he said “The reason I pulled over into the breakdown lane to make a telephone call was because I never make a phone call on the freeway”.

KIRBY J: But in the time sequence of 40 seconds, that would be consistent with his getting there and being stationary, would it not?

MR TOOMEY: It is consistent with both, your Honour. It is consistent with him making the call and that explaining his negligent failure to observe the truck as he came across in front of it, which was our case. It is consistent with him having gone over there and being stationary and making the call for a minute before the truck came in and hit him.

KIRBY J: Therefore, we are into the evidence of Ms Ferguson. Ms Ferguson gives this statement that far from seeing the Subaru crossing his path, she sees him moving into the second lane, in a rather odd fashion. How is that objective evidence that would warrant this Court overruling the concurrent findings of the courts below?

MR TOOMEY: Your Honour, in the first place we say the trial has been conducted on the basis of a misunderstanding of the evidence because her Honour founded on her mistaken view of Ms Ferguson’s evidence to say that is how it happened.

KIRBY J: The question is whether that is material, you see. Mistakes do happen in finding facts at a trial and in appeal. So the question is, is it a material matter? Does it really explain why we should take what is at the very least an unusual course to intervene for ourselves in the third level, and disturb fact finding of the courts below? Why does Ms Ferguson’s evidence, which one is inclined to accept as objective, because she is not involved one way or the other, why does it help you? On the contrary, to my mind, it tends to suggest that your client was doing some unusual things at this moment just before the impact.

MR TOOMEY: But, your Honour, the difficulty her Honour faced was why would this experienced, respectable truck driver whom she found to be frank, honest – she found him to be a thoroughly decent man.

KIRBY J: Yes, but not reliable in the critical matter.

MR TOOMEY: No, not reliable on the details of the evidence, your Honour. But why would this man simply drive into the breakdown lane and mow down this truck?

GLEESON CJ: Could a possible answer be because he was checking in his rear-vision mirrors to see that the chains of his truck were not flying, or that nothing untoward was happening behind him?

MR TOOMEY: Your Honour, it was not put to him, as I remember it, that in fact, that caused him to drive into the breakdown lane. It was not the finding made either by the trial judge or by the Court of Appeal.

GLEESON CJ: That is his explanation, is it not, to the police, of how this all happened so suddenly as far as he was concerned?

MR TOOMEY: Yes. Because he did not see it until he looked to the front.

GLEESON CJ: Whatever was going on in front of him, his explanation of why he did not see it sooner, was that he was checking in his rear-vision mirrors.

MR TOOMEY: That is correct, your Honour. That is correct. But, your Honour, if I can just point this out, if you are looking in a mirror, looking down the side of your truck, you have a perfect perspective on your position in the lane.

HAYNE J: Oh? If you are looking at your tray? You have an opportunity to, I understand that.

MR TOOMEY: You are looking in your mirror, down the side of the truck - - -

HAYNE J: Looking at your tray.

MR TOOMEY: In perspective to the lane that you are in. If you deviated, it would be very readily apparent that it had happened. I see your Honour does not agree with me.

HAYNE J: No. I simply assume that not all men are capable of doing two things at once, as I am sometimes reminded.

MR TOOMEY: I will bite my lip in respect of the corollary, your Honour. He is an experienced truck driver; he does it all the time, as truck drivers do. He has no perception of having had any difficulty with it. He looks back to his front and he says, “This vehicle is in my front – is in the lane”. If he is honest and frank, then it was there, or he was mistaken and there was no vehicle there. He claimed to see a vehicle which was not there if in fact all that happened was that he went across to the left and hit this other vehicle. But the basis on which the Court of Appeal found that the findings of the trial judge as to Ms Ferguson’s evidence were right was on the alternative basis put by the defendant in the Court of Appeal, which was that the skid marks shown on the CAD plan demonstrated that that is what had happened.

There is one important matter I should draw to your Honours’ attention. The Court of Appeal, in considering our submissions, arrived at a conclusion that although we had proved that the Subaru could not have been stationary in the position that the defendant had sworn it was, their Honours said at page 733, paragraph 21:

However, that does not establish that the vehicle was not thereby stationary in and wholly within that lane when the accident occurred. In this regard, the real contest between the parties is whether the vehicle was in the breakdown lane at all.

That demonstrates that the Court of Appeal simply did not understand the case, because it was no one’s case that the Subaru was not in the breakdown lane. Both parties said that. Their Honours then went on to say at paragraph 22:

The location of the gouge marks within the breakdown lane and their location parallel to the fogline indicates the improbability of the appellant’s version of the accident, a matter noted by the expert.

The appellant’s version of the accident, so far as the Court of Appeal were concerned, was that it happened in lane 1. I do not know where it came from. As we have pointed out in our submissions, it is in fact – there is a statement by her Honour in which she says that it was common ground between the parties that the – it is on page 8 of our submissions, paragraph 40:

Ms Furgerson obviously is in error when she says the plaintiff’s truck went no further than lane 1. It is common ground that the collision with the defendant’s vehicle occurred in the breakdown lane - - -

GLEESON CJ: The appellant’s version to the police of what happened was that his method of trying to avoid the Subaru when he saw it was to drive into the breakdown lane and slip around it on the left.

MR TOOMEY: Yes. That is because it was coming in a shallow line across, your Honour, and he hoped he would do that, but what the Court of Appeal have said is that the case run by the plaintiff was that the vehicle was never in the breakdown lane.

GLEESON CJ: But you have said that you could live with Professor Grzebieta, who says the vehicle was stationary or almost stationary in the breakdown lane at the time of collision and was heading north.

MR TOOMEY: Yes.

GLEESON CJ: How is that consistent with the appellant being able to slip around him on his left.

MR TOOMEY: Well he was mistaken, your Honour, he could not. But if the vehicle was coming slowly in a shallow line across the lane as he said, he may have thought that he could. What other choice did he have? If he went straight ahead he would have rolled straight over him anyway. That, at least, is obviously what the plaintiff’s attitude was. “I had to do something, and this is what I thought I could do and get away with”. Now he was mistaken.

KIRBY J: Mr Toomey, I am sorry I am looking at this from the point of view from what normally happens in this Court, I mean I am not in the Court of Appeal, and I am not at trial. If you are sitting in this Court and a case comes up, and you have a person who has told a trial judge “I was stationary in the safety lane” and the trial judge who has had those conventional advantages of sitting there and had all the evidence and considered the case and accepts that against the assertion of the other party that he has slithered across in front in a dangerous way and caused the plaintiff to lose control and have an accident, then ordinarily, unfortunately, in our system of trial, that is the end of the matter.

Even if you do not accept the so-called subtle influences of demeanour in Abalos, you still have Devries and you have a hundred years of decision of appellate courts that say that the appellate court is at a disadvantage and therefore you are behind the eight ball at that stage. Therefore, to overcome that, you have to have pretty strong, sometimes called compelling evidence to overcome it.

Now, when I look at what you present, the one absolutely objective piece of evidence is the record of the mobile phone, and I will accept for the moment that that involves demonstrating that the respondent, perhaps defensive of the fact that he never ever uses mobile phones on a highway, said that he had not used it. Let it be said that he used it. But you accept that it is consistent with his being stationary on the side that he used it from the side.

MR TOOMEY: No, with respect, your Honour. Not that call. That call had to be made on the freeway because of the timing of it.

KIRBY J: Well, it depends on how long he is there, you see. He has told the trial judge he was there for, I think, two minutes.

MR TOOMEY: Yes, your Honour, he did.

KIRBY J: The trial judge accepted that.

MR TOOMEY: Yes, and the call your Honour is talking about was made at least one minute and 40 seconds before he was in the breakdown lane. There can be no doubt that the phone call – if he made the phone call to 101, he made it while he was travelling along the freeway, while he was driving on the freeway.

KIRBY J: Is that accepted by the respondent?

MR TOOMEY: Well, I believe it is, your Honour, because they do not attack the Court of Appeal’s finding, which is that that is correct.

GLEESON CJ: How far would you travel in one and a half or two minutes on that freeway?

MR TOOMEY: Well, if you were travelling at 110, you are travelling at about, I think, about 30 metres a second. You would travel in a minute 1.8 kilometres.

KIRBY J: Your client said he was travelling at about - - -

GLEESON CJ: You would travel nearly two kilometres?

MR TOOMEY: About that, yes.

GLEESON CJ: So that call to 101 was made about two kilometres away from the point of collision?

MR TOOMEY: Something like that, your Honour. But then the call to the real estate agent, in our respectful submission, logically follows the call to 101.

HAYNE J: How long was the duration of the call to the agent before the collision?

MR TOOMEY: Sixty five seconds, your Honour. Yes, he had got onto the receptionist who said, “Wait, I’ll get him,” and from the time of the start of that call to the accident was 65 seconds.

KIRBY J: That is more than a minute, then.

MR TOOMEY: Yes, but that was part of the time he said he was stationary in the lane.

KIRBY J: Yes. I do not see how that provides the incontrovertible evidence that the trial judge got the assessment as to the credibility of the respondent wrong. It is an argument, of course, to advance against it, but it is – I am looking at it at the third level of process.

MR TOOMEY: I know your Honour is, and our answer is it cannot.

KIRBY J: Therefore, I am asking myself in the face of these dual conclusions by the two bodies which have authority in law to make their respective decisions where is the very powerful evidence that would warrant this Court reaching and giving effect to a different view?

MR TOOMEY: Well, your Honour, it is not, in our respectful submission, in this case quite as simple as that because we say it is apparent that the trial judge did not properly try the case. She found that there was no phone call, that because the respondent denied making the call on the freeway despite the fact that the records were before her and the Telstra expert had been called to say, “Yes, that was made from that phone at that time,” she simply found he denies making it and I accept that. That is the first thing.

She found that the accident arose from a manoeuvre by the plaintiff which never occurred. In respect of the presence of the Subaru in the lane, it had been there on a brilliant day, a silver Subaru on a brilliantly sunny day, on a piece of freeway which is straight for three kilometres, she found that it had been there for two minutes. No one said it had been there except the defendant and his passenger, and the passenger’s evidence was compromised because to the police on the day he said something different.

KIRBY J: Well, he did not say something different, he did not go as far. He said he had been asleep - - -

MR TOOMEY: And he did not remember anything.

KIRBY J: - - - before, but it is a question of whether or not that is consistent with his being asleep when the Subaru was being driven.

MR TOOMEY: But, your Honour, he denied speaking to the police officer.

KIRBY J: Well, I do not - - -

MR TOOMEY: He told the police officer he did not remember because he had been asleep.

KIRBY J: That does not touch the point though.

MR TOOMEY: Well, I said only that - - -

KIRBY J: That is a credit point.

MR TOOMEY: I said only that – it is a credit point, and only a credit point. But what I am pointing out is that the failures of the trial judge were such that the plaintiff in the case was entitled to feel that he had not had a fair trial. There was the finding that the indisputably made phone call had not been made because her Honour accepted the defendant when he said he had not made it.

That did not show a proper approach to the case, to the weighing of the evidence in the case. There was the fact that not only did no one see the Subaru there, which is, as your Honour says, an absence of evidence, but Mr Griesberg, who gave oral evidence, said he passed the truck. When he was 300 metres past the truck in the same lane, he came back into lane 1 30 or 40 metres after passing the truck and he went 300 metres up the highway. At that time, which was 30 seconds or 40 seconds before the collision, the Subaru, according to the defendant, had been stationary in that lane for nearly a minute and a half. Mr Griesberg went past that point and must have gone, since the Subaru is stationary in the lane, was stationary a foot from the edge, must have driven within a couple of feet within the Subaru and he never saw it.

Ms Ferguson, who was in the same lane as the plaintiff and driving up behind him, having had a clear view up the breakdown lane for some kilometres, never saw the Subaru in the breakdown lane. The plaintiff, whom her Honour accepted as a witness of truth, although she doubted his reliability, said there was no vehicle in the breakdown lane. But her Honour waived those aside by saying they are absence of evidence rather than evidence of absence. Now, Mr Griesberg’s evidence was directly evidence of absence, “I drove past that point and it was not there”.

The mechanism by which her Honour rejected Mr Griesberg’s evidence was that he was 300 metres or so up the road when he looked back and saw chaos behind him. He stopped the car, he got out and he was running back down the road on his mobile calling the emergency number and looking at where the truck had gone down through the Armco into the bush, was upside down with smoke pouring out of it. He said that he saw the Subaru in its smashed condition as he was running down. He got nearly to where the truck had gone through the Armco.

Her Honour said, “I do not accept that his evidence that the Subaru was not there, because after all, he did not see it when he was running down the road”. In my respectful submission, that was simply not a legitimate basis on which to reject that evidence. It is the combination of all these matters which ultimately brings us to this Court to say, in the supervisory jurisdiction of the High Court, this man did not have a fair trial because there was misstated evidence, there was evidence which was waived aside when it was of weight.

There was a finding in respect of the making of the phone call, where it was proved by expert evidence beyond any reasonable doubt and her Honour showed, in our respectful submission, that she was not approaching the matter even-handedly at all. She said, “He said he did not make it, I accept he did not make it despite this uncontrovertible evidence”. How is the plaintiff to believe in the combination of those circumstances that his case was properly heard?

KIRBY J: I do not know that you are being entirely fair to the primary judge because she did say that she accepted he was an honest person. I mean, you and I have both seen judges who have said, “I’ve looked at him, I’ve studied the facial features and I’ve come to the conclusion” - - -

MR TOOMEY: “And I don’t like the look of him”.

KIRBY J: And here the trial judge is not trying to wrap it up in that way. She says, “I accept that he’s being honest and in fact he understated things”, but she just did not feel that he was reliable. The problem in a third level appeal is you have just got to accept that unless there is a very strong, incontrovertible, overwhelming case, it is very hard to disturb that.

MR TOOMEY: Your Honour, I did not come down here expecting a cakewalk - - -

KIRBY J: If we start sending signals to the contrary, we will have even more factual appeals before us and really they would generally fail and that would not be a good message for the final national court of the country to give.

MR TOOMEY: Your Honour, I think one can say with confidence that they would not get through the filtering mechanism and the reason this one did, one assumes, is because it was an unsatisfactory trial.

KIRBY J: The reason was that it was considered appropriate that the matter should be argued, as it is being.

MR TOOMEY: Indeed, your Honour, but it is the combination of circumstances; the statement of evidence which was not there and the use of that evidence as an explanation, contrary to the plaintiff’s evidence, of how the accident happened. The statement that evidence given by the defendant which was proved beyond any reasonable doubt to the criminal onus was false was simply accepted because he had said it. Perhaps I should take your Honours to that point to show your Honours how her Honour did deal with it. At page 712, line 16:

The defendant offers no explanation for the 4 second telephone call made from his mobile telephone to its voicemail service . . .

If the defendant had made that call, it would have been whilst he was driving, on his evidence it not being included among his actions when he pulled into the breakdown lane.

She then does some calculations on distance travelled. She says:

I accept the submission by counsel for the defendant that:

... at the end of the day in our submission, can’t make a great deal of it, because there is a lack of evidence surrounding it. There are too many possibilities to make any hard and fast findings as a result of it.

I find the 4-second telephone call to voicemail to be irrelevant, if it was made. I am conscious that the plaintiff calls this telephone call in aid to contend that the defendant should not be believed when he says that he had stopped to make his telephone call. Nonetheless, the defendant says he did not make the call. I accept that evidence.

At line 16 she said he offers no explanation for the 4-second telephone call. It has been proved by unchallengeable evidence that the telephone was in his custody and no one else’s, that he was on the freeway at the time it was made and that the call came from his telephone. That was all proved by the Telstra expert, Ms Foster.

Then her Honour deals with this matter thus, “The defendant says he did not make it and despite this unchallengeable evidence, I accept the defendant’s evidence”. How is the plaintiff to believe in the light of that and the misstatement of Ms Ferguson’s evidence that he had a proper trial? How is he to further the dismissal of Mr Griesberg’s evidence on a false basis that because he did not see the smashed Subaru while he was running down the highway on his mobile and watching the truck through the Armco, that he was not to be believed?

KIRBY J: I ask you, where is the evidence that suggests that the call to the voicemail took place 2 kilometres away from the point of ultimate coming to rest?

MR TOOMEY: Well, your Honour, it is a time thing, it may have been more than 2 kilometres, but that it was made on the highway there was no doubt because the time of the call is established by Ms Foster and the defendant established that at that time he was driving on the freeway.

KIRBY J: He said he was stationary for two minutes in the - - -

MR TOOMEY: Before the accident, the telephone call - - -

KIRBY J: Why is it not consistent with that, that any call to the voicemail was made from the stationary position on the side of the road?

MR TOOMEY: It does not fit in the timeframe, your Honour, and was accepted by her Honour that if he made that call, he made it while he was on the freeway. At line 20 on page 712, her Honour says:

If the defendant had made that call, it would have been whilst he was driving,

KIRBY J: There was an officer from Telstra who gave evidence.

MR TOOMEY: Yes.

KIRBY J: Was there any evidence from that officer that records of that kind can sometimes be erroneous or can sometimes be mistaken?

MR TOOMEY: The contrary, your Honour. They were records to the second. They appear in the appeal books if you want to see them.

KIRBY J: But the fundamental problem is – it does go to credit because your client has said that he never did and did not on this occasion and therefore it does go to - - -

MR TOOMEY: His client, your Honour.

KIRBY J: I am sorry, the respondent says he never used his mobile when driving, big hands, and he did not on this occasion, so it goes to credit, no doubt about that, but it is - - -

MR TOOMEY: And he could not, because he was physically incapable of getting at it.

KIRBY J: Yes, big hands, I have tried to indicate I was conscious of that, but it is not inconsistent is it, with his being stationary at the time of impact? Let him be using his mobile 2 kilometres down the road on the road, that does not contradict by objective evidence that at the time of impact he had reached the safety lane and was stationary there.

MR TOOMEY: No, it does not, your Honour, but what it does is, first, it demonstrates that the defendant did not tell the court the truth. Second, it demonstrates that he did not tell the court the truth about a matter which was crucial to the case, that is, whether he would use his telephone on the expressway. It can only have been - - -

KIRBY J: A lot of defendants and plaintiffs do not tell the truth and they do not tell the truth on matters that are material, but you have trial judges who have to try and sort that out unfortunately.

MR TOOMEY: Well, this trial judge did not, your Honour.

KIRBY J: This trial judge did accept the respondent’s evidence.

MR TOOMEY: She did not sort that area out, your Honour, because despite the unchallengeable objective evidence that it had happened while it was on the freeway she found not that it was not on the freeway but that he did not make the call, which is just an extraordinary finding.

KIRBY J: But that can be wrong, that can be a mistake, but it still leaves standing the evidence of the respondent that he was stationary at the time of the impact.

MR TOOMEY: Yes. Your Honour, we have never said that we had to win the case. Our case is that this plaintiff did not have a proper trial according to law; that is our case. Our major point is that the learned trial judge founded on evidence, which she misstated, and which we have demonstrated she misstated.

The other points are that despite the fact that the defendant swore that he was parked 30 centimetres from the Armco, the impact occurred with his vehicle 1.3 metres, or 1.2 metres, from the Armco. That is not a small point. Her Honour made comments in at least two places in her judgment of the precise nature of Mr Tabart, and he was, he was a man who said, “And I then did this, and then I did that, and then I did that”. When he was asked where he had parked in relation to the Armco he said, “About a foot,” not “About 1.2 metres”. If he had said, “About a metre,” and it was 1.2 metres, all right, but he said, “About a foot,” and he was at least 1.2 metres. Now, it is the accumulation of these matters. Her Honour paid no regard to that at all, nor did the Court of Appeal.

KIRBY J: It seems a tiny point.

MR TOOMEY: Not as a cumulative point, your Honour.

KIRBY J: I am just looking for something that is really objective. If you can find something that is really objective, then I would be with you.

MR TOOMEY: Well, I can tell you, your Honours, that there is one thing; if we go to the handwritten sketch plan of the police on the day. The reason the Court of Appeal said they accepted the defendant’s case was on the alternative case that the skid marks demonstrated that indeed the skid marks which lead up to the point of collision demonstrated that those were marks left by the plaintiff’s truck and the defendant’s car and they show that the truck had gone into the second lane, just as her Honour found, and thus they founded the inference by her Honour that the truck had drifted into the lane and come back across.

GLEESON CJ: Now, the reason the Court of Appeal decided as they did is expressed in paragraph 54 on page 741 of the appeal book.

MR TOOMEY: Yes, your Honour.

GLEESON CJ: It does not seem to have anything to do with skid marks.

MR TOOMEY: No, but the skid marks are dealt with from paragraph 35 to paragraph 49 on page 739. Their Honours consider the skid marks there. That of course ties back to the paragraph at the top of page 736 where their Honours said:

The respondent contended that not only did her Honour correctly summarise Ms Ferguson’s evidence, there was evidence of skid marks on the roadway that indicated that prior to the collision with the respondent’s vehicle, the appellant had drifted into lane 2, and then swung left and right again, finally forcing Ms Ferguson into the safety cables on the right hand side of the road.

There was simply no evidence as to what vehicles left those marks on the road. No one saw them leaving them on the road. There was nothing about them which indicated that they were a truck and a car. If you look at the wheel bases at the right-hand side of the handwritten sketch you will see, at about point 4 on the page, the left-hand wheel marks, which must be those of the truck. The wheel base is 5.4, 6.9 – that is their distance from the Armco. That is a wheel base of 1.5 metres. If you then look at the next set of wheel marks up, you will see that they are set to have a wheel base of 8.2 to 9.7, which is 1.5 metres.

For those to have been the tyre marks of a 10-tonne Nissan truck and a Ford Falcon, then one has to accept that a Ford Falcon and a 10-tonne Nissan truck have the same wheel base. That, with respect, is nonsense. Furthermore, if one then goes to the wheel base of the skid marks which are undoubtedly those of the truck, going down to the hole through the Armco, one will see two lots of wheel base marks – three in fact: 4.2 and 6.1, which is 1.9; 4.5 and 6.5, which is two metres; and 3.8 and 5.9, which is 2.1 metres. Those are unquestionably and objectively the wheel base of the truck because those marks were left by the truck as it went through the Armco.

It was drawn to the attention of the Court of Appeal that the wheel base sizes were different, and yet in the teeth of that they accepted that the marks leading up to the collision were the marks of the truck and the Falcon, not only not proved to be the case but we say disproved by the wheel bases. Accordingly, they said that her Honour was entitled to draw the inference that what she had said came from Ms Ferguson’s evidence but did not had indeed happened.

That, with respect, your Honour Justice Kirby, we say is the objective evidence at least on one part of the case. It cannot be consistent with the basis on which both her Honour and the Court of Appeal found against the plaintiff.

There is another thing to be said about those skid marks, your Honours. If your Honours go to the CAD, the computer generated map, this one, according to the Court of Appeal, because the matter was not specifically dealt with by her Honour, the upper, shorter skid marks are those of the Ford Falcon. The longer, lower ones are those, it is said, of the truck. Since they demonstrate no veering of the truck towards the Falcon at all, why would it be necessary for the plaintiff in the absence of danger from the Falcon, which is clearly not present, why would it be necessary for him to swing suddenly to the left? On those marks, all he had to do was keep driving.

If, as the defendant says, the Subaru was in the breakdown lane, that is it is not impinging on lane 1 at all, why does he have to move his truck at all? It is obvious from those marks that that vehicle, whatever vehicle it was and, of course, we say it is not the truck - - -

HAYNE J: Whose were they?

MR TOOMEY: Your Honour, there was evidence that after the accident there were cars braking and swerving all over the expressway. We do not know, but we say there is an acceptable alternative explanation. If your Honours see where the truck marks come in, just inside the upper lane line of lane 1, why does he have to swing anywhere? If it is the truck, he just takes his foot off the brakes and steers straight along the highway past the parked Subaru. They are, in our respectful submission, inconsistent with Ms Ferguson’s evidence and inconsistent with the alternative, the unjustified alternative, upon which her Honour relied.

I realise, your Honours, that I am getting into detail which is unwelcome to your Honours and is not appropriate in this Court, but there were also in the third series of skid marks, those which took the truck through the Armco, there were in that series of skid marks part where it was obvious that dual wheels had left the marks. That, of course, is because the truck indeed had dual wheels. There is no place in the first series of wheel marks where it can be said there is evidence of dual wheel marks, none. Although all the wheels on the truck, apart from those on the cab, were dual
wheels. You have them shown a part of the way in the skid marks which go through the Armco, which are undoubtedly the truck, not shown on the skid marks before. The wheel bases are substantially larger on the vehicle which went through the Armco than on the two which the Court of Appeal relied upon.

Your Honours, there is reference to the question your Honour the Chief Justice asked about the plaintiff’s statement that he tried to slip in around him. It is apparent that the plaintiff had virtually no memory of what happened after he swung to the left. From his first record of interview, from his evidence in the local court, from this evidence before the District Court, it was obvious that his memory pretty well cut out when he went into the breakdown lane.

It is very common that people who are involved in terrifying, traumatic experiences have a mixed-up memory of what happened. In this case, what we say is the memory that should have been accepted was that he went to the left because he saw the vehicle in front of him. There was no other reason for him to do so. I appreciate what your Honour Justice Hayne put to me about - - -

CRENNAN J: With its stop light showing, so it was apparent on his account that that vehicle was braking for some reason.

MR TOOMEY: Yes, and, your Honour, can I point out that there is a factual conjunction here. If our case is right, the defendant had been on the phone for 65 seconds, having got onto the receptionist who said she would go and bring the real estate agent to the phone. It would be a point, we say, at which, if he was going to conduct the phone call from the breakdown lane, he knew the real estate agent was about to come on the phone, and he pulled over to the left. That is the explanation of why that happened when it did.

Your Honours, I think that those are all the particular matters I want to draw to your Honours’ attention. As we have made clear, we do not ask your Honours to decide this case on minor matters of fact, we ask your Honours to decide it in the supervisory jurisdiction of the Court, because this man has not had his case dealt with according to law. May it please, your Honours.

GLEESON CJ: Thank you. We will adjourn for a few minutes to consider the course we will take in this matter.

AT 12.02 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.10 PM:

GLEESON CJ: We do not need to hear you, Mr Campbell. In this matter I will ask Justice Kirby to give the first judgment.

KIRBY J: This appeal, by special leave, challenges a judgment of the Court of Appeal of the Supreme Court of New South Wales. That court, comprising Justice Mason, President, and Justices Beazley and Tobias, unanimously dismissed an appeal by Mr Peter Collins (the appellant) against a judgment of the District Court of New South Wales, constituted by Judge Gibb. Her Honour had entered judgment at trial in favour of the respondent, Mr John Tabart, which the appellant contests in this Court.

The appeal arises out of a collision that occurred on 2 July 2002. The collision took place between a truck, driven by the appellant, and a silver Subaru sedan, driven by the respondent. The collision happened on a clear winter’s day on a straight stretch of the F3 freeway, north of Sydney. Two radically different versions of the events were given by the two drivers. Put shortly, the appellant’s case was that the respondent drove his vehicle across the lanes of traffic in front of his truck, from the second lane of traffic, through the first lane, towards the breakdown lane.

According to the appellant, this movement caused him to swerve left, at which point he heard a thud, by inference the collision with the Subaru. The appellant’s truck finished up going over the western embankment of the freeway, causing him to be seriously injured, allegedly as a result of negligence on the part of the respondent in his driving of the Subaru.

The respondent’s case was that he was stationary in the breakdown lane at the time of impact. Upon this version of events, if accepted, there would be no relevant negligence on the part of the respondent. Accordingly, resolving where the truth probably lay was crucial to the outcome of the trial.

In her conclusions, the primary judge accepted that the version given by the respondent was to be preferred. She therefore entered judgment in favour of the respondent. She concluded that the appellant gave his evidence honestly; but that his evidence was unreliable and that the evidence of the respondent was to be preferred. The difficulty of disturbing such a conclusion on appeal is self-evident.

The Court of Appeal gave its reasons in the appeal in short form, as contemplated by the Supreme Court Act 1970 (NSW) section 45(4). The Court recognised its function under that Act, section 75A, to conduct an appeal by way of rehearing. It made proper reference to the authority of this Court in Devries v Australian National Railways Commission (1993) 177 CLR 472; [1992] HCA 41; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; and the Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; 221 ALR 402; [2005] HCA 57. The Court of Appeal accepted that the primary judge had made two errors of fact finding in her reasons for judgment. However, it considered that these were not ultimately determinative of the correct outcome of the case.

In this Court the appellant contested that conclusion. He argued that the errors found by the Court of Appeal, and other errors, demonstrated a flawed process of fact finding at trial which the Court of Appeal had erred in failing to correct either by finding the facts accurately for itself or by remitting the case for retrial in the District Court.

As is usual in cases of this kind there are curiosities and inconsistencies in the evidence. Some of the evidence is difficult to reconcile, as the appellant has strongly argued before us. However, ordinarily, the process of reconciliation is the function of the trial judge unless the losing party can demonstrate error on the part of the trial judge. The Court of Appeal was not convinced of material error. The appellant in this Court faces effectively, therefore, concurrent findings of fact against him which, at the very least, it is difficult for him to overcome. See the Roads and Traffic Authority of NSW v Dederer (2007) 81 ALJR 1773; 238 ALR 761; [2007] HCA 42 and Liftronic Pty Ltd v Unver (2001) 75 ALJR 867; 179 ALR 321; [2001] HCA 24.

We have considered the written submissions of the parties and we have heard the appellant’s oral submissions. It suffices for us to say that we are not convinced of any error on the part of the Court of Appeal that requires, or would justify, the intervention of this Court. In the end, we reach a conclusion similar to that expressed by the Court of Appeal in paragraph 54 of its reasons which, being abbreviated, read:

Accordingly, although there were aspects of her Honour’s reasons that possibly raised appellable issues, her conclusion was . . . correct. The success of the appellant’s case depended upon his establishing that the respondent’s vehicle moved unexpectedly in front of him. However, in our opinion . . . the evidence . . . established the contrary – namely, that at the point of collision, the respondent’s vehicle was already in the breakdown lane.

We are not persuaded that the combination of matters to which the appellant pointed in argument, as showing that he had not had a proper consideration at trial of the case he made was not sufficiently and appropriately considered and dealt with by the Court of Appeal. Accordingly, the proper course for this Court to take is to revoke the grant of special leave.

I would therefore propose that special leave be revoked and that the appellant pay the respondent’s costs.

GLEESON CJ: I agree with the orders proposed by Justice Kirby for the reasons he has stated.

HAYNE J: I also agree.

CRENNAN J: I also agree with Justice Kirby.

KIEFEL J: I also agree.

GLEESON CJ: The orders of the Court will be as proposed by Justice Kirby.

MR TOOMEY: May it please the Court.

AT 12.18 PM THE MATTER WAS CONCLUDED