Vaughan v Ross [2017] HCATrans 23 (10 February 2017)

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Vaughan v Ross [2017] HCATrans 23 (10 February 2017)

Last Updated: 13 February 2017

[2017] HCATrans 023

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S223 of 2016

B e t w e e n -

MARK ANTHONY VAUGHAN

Applicant

and

DANIEL MARK ROSS

Respondent

Application for special leave to appeal

BELL J
GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON FRIDAY, 10 FEBRUARY 2017, AT 10.20 AM

Copyright in the High Court of Australia

MR R.R. STITT, QC: May it please your Honours, I appear with my learned friend, MS T.A. BERBERIAN, for the applicant. (instructed by Holman Webb Lawyers)

MR R.S. McILWAINE, SC: May it please the Court, I appear with my learned friend, MR R.E. QUICKENDEN. (instructed by Brazel Moore Lawyers)

BELL J: Mr Stitt.

MR STITT: Your Honours, at the outset I need an order granting - - -

BELL J: Yes, you require an extension.

MR STITT: Yes, your Honour, and - - -

BELL J: You rely on - - -

MR STITT: The affidavit of Wendy Anne MacDonnell, but I am told by my learned friend that it is consented to, so I need the leave of the Court.

MR McILWAINE: I think that is so, your Honour.

BELL J: Yes, very well. Do proceed.

MR STITT: Your Honours, it is important in the proper administration of justice that appellate courts recognise and respect the difference between an appeal by way of rehearing and a hearing de novo. This is an important aspect of the function and role of the Court of Appeal.

In this case, the Court of Appeal had no justification for its intervention with the findings of the primary judge. The justification points which are identified are factually incorrect and unsupported by the evidence. This was a case where there were only two people present at the time of the accident. The critical finding of fact was which vehicle was on the wrong side of the road, and the ultimate finding of fact by the trial judge on that question is at page 35 of the application book. At 35, line 40, the trial judge said:

it is clear to me, when one steps back and looks at the objective evidence and the evidence from each of the participants in all of this, that for some reason or another the vehicle driven by Mr Ross –

the respondent –

made its way over to the incorrect side of the road, thereby causing the collision.

Now, your Honours, the process of reasoning to that finding is set out above on the same page at line 30 where the trial judge said:

I have to say, when one steps back and looks at all of the evidence, with the greatest respect to Mr Ross Jr –

that is the plaintiff –

it is open to this Court to draw an inference that Mr Ross indeed either fell asleep or dozed off or lacked sufficient concentration which would have equipped him to keep within his side of the road.

That is his Honour’s process of reasoning which led to the ultimate finding.

BELL J: Now, just looking at that, as I understand the approach adopted in the Court of Appeal, it was to say there was no challenge to the credit worthiness of either Mr Vaughan or Mr Ross. The court reviewed the whole of the evidence and with respect to the primary judge’s conclusion that Mr Ross had fallen asleep or dozed off, the Court of Appeal identified an error in that there was no evidence to support the drawing of that inference, and the court identified the reference in the ambulance paramedic’s notes in that regard, citing this Court in Jackson for the proposition that it would be an error to infer from the note that Mr Ross may have fallen asleep at the wheel and there was no other basis for the conclusion. That is as I understand it.

GORDON J: Do you challenge the next sentence where it says, “there was no evidence on which to base the conclusion”, putting the note aside - in paragraph 44?

MR STITT: I am sorry, your Honour, I just cannot pick up - - -

GORDON J: Sorry, on page 61 of the application book at paragraph 44, Justice Bell just took you to the fact that the Court of Appeal put to one side the note, based upon Jackson’s Case, and then the Court of Appeal goes on to conclude that:

there was no evidence on which to base the conclusion that the appellant had fallen asleep.

MR STITT: Yes, your Honour, we do not challenge that part relating to the note, but we do challenge the part that there was – the conclusion that the appellant fell asleep or dozed off or lost concentration is unsupportable on the evidence. We do challenge that. The evidence is this – and it was the respondent’s own evidence – that he did not see the collision. As the vehicles approached he put his head down on the passenger’s side and he was not looking ahead, he did not swerve or turn aside or take any evasive action to avoid the collision, and he said that after the impact he woke up.

So that evidence when supported by the statements and evidence of the applicant as to what he saw – and this is a classic case of where the evidence is that of Mr Vaughan who said he had a clear and complete recollection of the accident, that he saw the whole of the accident, he said that Mr Ross’s vehicle was on the wrong side of the road because he saw it there, then the evidence of the respondent was that he had suffered some form of amnesia and he was only able to give an incomplete and reconstructed version of what had occurred, and the trial judge found that at application book 14.

But in that circumstance, the trial judge’s reasons involved a consideration of the credibility of the applicant, Mr Vaughan, as well as the other witnesses, and the trial judge’s finding as to the credibility of Mr Vaughan was that he saw just about everything. His evidence appeared – and this is what the trial judge said his “evidence appeared to me to be clear, concise and accurate”. Could I just briefly take your Honours to the findings about Mr Vaughan’s evidence of “clear, concise and accurate”? It starts at 26, at the bottom of page 26, line 50:

I therefore do not consider that that undermines the credibility of Mr Vaughan for the reasons I have enunciated. Mr Vaughan, according to his evidence, saw just about everything. Mr Vaughan’s evidence appeared to me to be clear, concise and accurate.

Now, that is a credit finding based on demeanour, and on page 27 the trial judge said at line 30:

Exhibit 16 reveals that Mr Vaughan had a “total recall” of the accident and denied any loss of consciousness, that he was alert and orientated . . . There is no issue about any lack of memory on the part of Mr Vaughan for any period of time whatsoever.

GORDON J: Then I assume it is the next paragraph, is it, where he gives evidence of the car being on the wrong side of the road?

MR STITT: I am sorry?

GORDON J: Is it the next paragraph, that is, line 50, where he gives evidence of seeing the car on the wrong side of the road?

MR STITT: Yes, that was Mr Ross’ car was on the wrong side of the road and he tried to – he swerved to the left to get out of the way, but he could not avoid it. The other credit findings are at 28 at line 20:

His statement to the police concluded with the words “I had to swerve to avoid him”, by and large consistent with his evidence before me. He said that he saw the collision; he watched it all of the way through . . . having regard to the further evidence of Mr Vaughan, and there is nothing to contradict this, that although he airbags were activated they deflated very quickly apparently.

Line 40:

The photographic evidence certainly reveals that his vehicle, somewhat skewed, was on the shoulder of the road. It is consistent, in my view, with his evidence which, in my further view, has the element of accuracy and reliability to it.

The submission is that in a case where the objective evidence is inconclusive and one of the participants has a clear recollection that the other vehicle was on the wrong side of the road, and that the other participant has a vague and reconstructed recollection, this is a classic case where the outcome will depend upon the trial judge’s assessment of the respective evidence.

Now, the Court of Appeal tried to avoid that outcome by saying that the trial judge and his findings did no more than fit the respondent’s evidence with the view the primary judge otherwise came to. If the case was that neither party had any recollection of the accident, then it would be a question of onus of proof and, in that situation, each party may fail. But that is not this case.

The submission is that the Court of Appeal cannot confine the advantage which the trial judge has in assessing the credibility where the relevant witness has a firm, clear recollection of the circumstances of the accident. Now, if your Honours go to page 60, the way in which the Court of Appeal sought to deal with this is at paragraph 41:

First, I do not read the observations of the primary judge to incorporate “credit” findings, if by that is meant that the respondent was a more honest witness than the appellant. The primary judge’s finding that the respondent’s evidence was more “reliable”, was, when properly read, a finding that the respondent’s oral evidence accorded, in the view of his Honour, more neatly with other evidence in the trial -

Well, that is the function of a trial judge, to assess the other evidence in the trial and to see whether it accords with the version given by the relevant witness. The quite amazing statement:

The reliability finding was, in my opinion, no more than a finding that the respondent’s evidence fitted with the view the primary judge otherwise came to.

With respect to her Honour, I do not understand what she is actually saying there. The second basis upon which the challenge was advanced was at paragraph 42:

because the preference for the respondent’s evidence was not demeanour based, there is no impediment of the kind stated in Fox v Percy to this Court proceeding to make its own judgment on the facts –

Now, the submission is that that statement is a travesty of the trial judge’s process of reasoning and it is not an accurate statement of the principles in Fox v Percy at all, and the finding that the evidence of the applicant, Mr Vaughan, was “clear, concise and accurate” is a demeanour finding. It is a finding which goes to the question of credit and credibility, and where you have only two people that were involved and one has a clear, concise and accurate recollection and the trial judge accepts that evidence, in our submission it is not open to the Court of Appeal, as it were, to hear the matter de novo and substitute the Court of Appeal’s view as to credit and credibility without having - - -

BELL J: Well, the Court of Appeal did not substitute a view about credit and credibility. The Court of Appeal proceeded upon the basis that the objective evidence and, in particular, the skid marks, I think, had been not factored into account by the trial judge.

MR STITT: But that, with respect, was not correct. What the trial judge did was he dealt with the skid marks extensively and - - -

BELL J: He concluded that he could not be satisfied that the skid marks had been caused by one of the vehicles in the accident. The Court of Appeal considered that was not a reasonable rejection of the evidence of the skid marks, as I read their judgment.

MR STITT: The photographs of the skid marks were inconclusive. It was impossible to determine anything objectively from that, and the evidence of the members of the family was directed to what they said they saw, but there was no evidence, and the trial judge found this, that there was no evidence that any skid marks – and there were some on the road but they

were not consistent with what the family said – but there was no evidence that that skid mark had anything to do with the respondent’s vehicle, and the trial judge made that finding.

Now, that is a finding which was open to him and that, as he said, “I looked long and hard at the evidence to see what the evidence is about the skid marks”, but there was not anything determinative and the ultimate question was who was on the wrong side of the road at the time of the collision. The answer to that question was – Mr Vaughan said – “I saw him on the wrong side of the road”. That is how he got there and he was conscious all the way through.

So, in our submission, what the Court of Appeal has done is to manufacture – the error of the Court of Appeal, in our submission, is that it manufactured errors on the part of the trial judge so as to justify intervention. Those errors did not exist. Those errors are demonstrably wrong so far as the Court of Appeal’s approach is concerned. The interests of justice require that the decision of the Court of Appeal be overturned and that the trial judge’s finding and careful review of the evidence be restored.

BELL J: Yes, thank you, Mr Stitt. Mr McIlwaine.

MR McILWAINE: Your Honour, the first point is that on appeal the Court of Appeal carefully reviewed the evidence and the reasoning of the trial judge. At page 61 of the book, Justice Simpson, who gave the judgment of the court, found that there was error on the part of.....and that finding was against the.....There was absolutely no evidence to support that finding. Your Honour Justice Bell has already.....that information, namely - - -

BELL J: If one accepts that there was not a basis to reason that Mr Ross had fallen asleep or dozed off, nonetheless the judge’s finding was one of falling asleep, dozing off or losing concentration. The point that is taken against you, Mr McIlwaine, is in circumstances where no attack was made on the credibility of Mr Vaughan who said “I saw the vehicle stray on to my side of the road”, why was there no evidence on which the trial judge might reason to a conclusion that Mr Ross must have at least lost concentration?

MR McILWAINE: Your Honour, that finding cannot be broken up and taken in isolation. The finding is that the reason.....was because he either fell asleep, dozed off or lost concentration but that has to be understood together. Now, there is no way Mr Vaughan would know whether he did any of those things and that was – you will recall the trial judge says that is Mr Vaughan’s speculation; that is his theory. But the trial judge just turned that theory, not based on any evidence, into a finding.

GORDON J: That is the point of distinction between two of you and that is whether or not - there was no evidence where Mr Vaughan was on the road. That is the point that is taken against you. Put aside the speculation for the moment.

MR McILWAINE: There was evidence from Mr Ross that Mr Vaughan came onto his side of the road and then before the impact he looked down and the car then.....glancing blow put Mr Vaughan went back on his correct side of the road. The point I make is the Court of Appeal, once they identified the error, they were duty bound to look at the matter themselves and that is exactly what happened.

BELL J: Just coming back to Mr Ross’ evidence, you say that it was that he saw the Vaughan vehicle coming onto his side of the road.

MR McILWAINE: Yes.

BELL J: At that point he put his head down.

MR McILWAINE: At that point he put the brake on and he put his head down – no doubt as some sort of defensive reaction. But he clearly saw Mr Vaughan come onto his correct side of the road – Mr Ross’ correct side of the road. When Justice Simpson reviewed all the evidence, as we submit she was entitled to do, she took into account the evidence of the skid marks. She took into account where the debris was and she did not accept this proposition from Mr Vaughan that somehow, after there was impact, Mr Ross somehow bounced back onto his correct side of the road conveniently in a position where there were skid marks leading up to - within a metre of his car - conveniently in a position where there was debris in front of his vehicle and on the side.

But the starting point, in my submission, is that the Court of Appeal was entitled, after identifying an error, to review all the evidence and make their own findings which is exactly what Justice Simpson did and the President and Justice Harrison agreed.

BELL J: But it was subject to the restraint that applies to demeanour-based findings and that is where some emphasis is placed on the trial judge’s acceptance of the clear recollection of Mr Vaughan of the precise mechanism of the accident and the trial judge’s finding that Mr Ross’ recollection involved some element of reconstruction.

MR McILWAINE: Well, it was not reconstruction. It was memory, regained memory.

BELL J: Yes.

MR McILWAINE: So it certainly was not reconstruction. But the point that Justice Simpson made – and the point I am making – is it is the proposition that Mr Ross fell asleep or dozed off or lost concentration that provides the explanation for him travelling onto the incorrect side of the road. That was, as Justice Simpson found, a finding made in error thus entitling - or demanding the Court of Appeal to review the matter for itself. It is quite a simple proposition we put. What is being asked here - - -

BELL J: Mr McIlwaine why, if one accepts is truthful an account that I was driving and I suddenly saw a car veer onto the incorrect side of the road and proceed towards me – if you accept that witness is truthful, what is wrong with the process of reasoning to a conclusion that the driver of that vehicle either fell asleep, dozed off or lost concentration?

MR McILWAINE: What is wrong with it in this case is that its genesis comes from that note in the ambulance report which is a mere query by the ambulance officer. That is what is wrong with it.

BELL J: That might explain the “fall asleep” but, on one view, it is a reasonable inference that there is a loss of concentration if a car veers onto the wrong side of the road, surely.

MR McILWAINE: Well, I have made my submissions about that, your Honour.

BELL J: Yes.

MR McILWAINE: That you have to read that as not isolated propositions but together.

BELL J: Yes.

MR McILWAINE: Once one does that and then if one accepts that the Court of Appeal was entitled to look at the matter for itself, the evidence is overwhelming that Mr Ross was on his correct side of the road because it is simply fantasy – there was no expert evidence to explain how, somehow, Mr Ross’ car was able to bounce back onto the correct side where the accident damage was and where the skid marks were.

BELL J: Yes.

MR McILWAINE: What is being asked of this Court is to, as it were, have a third go at the trial which is the very thing that this Court is not here to do.

BELL J: Indeed.

MR McILWAINE: They are the submissions we would make.

BELL J: Yes. Mr Stitt, as I understand it, Mr Ross did give an account that Mr Vaughan’s vehicle had come onto the wrong side of the road. So, one has two witnesses – neither of whom is the subject of an attack as to the witnesses’ veracity. The Court of Appeal, carrying out a careful review of the evidence, concludes that the inferences to be drawn from the objective evidence favour the conclusion that it was the Vaughan vehicle on the wrong side of the road. Now, why would we take this up?

MR STITT: Your Honours, you would intervene for these reasons. It is an incorrect statement by the Court of Appeal to say that the determinative finding was that he fell asleep, dozed off or lacked sufficient concentration. That is not the finding. The finding is – and it is prefaced by the words “if I am wrong in all of that”. At page 35, line 40, it is clear that the ultimate finding is:

If I am wrong in all of that, in any event, it is clear to me, when one steps back and looks at the objective evidence and the evidence from each of the participants in all of this, that for some reason or another –

and he is not ascribing a reason, he says “for some reason or another”:

the vehicle driven by Mr Ross made its way over to the incorrect side of the road, thereby causing the collision.

If your Honours then go to the next page and see the way he dealt with that, finally, and it is important to start looking at line 10 on page 36. He said:

I consider that it is more probable than not, given the photographic evidence at least, that this was a glancing impact rather a full frontal impact. Certainly, there was damage done to the front of each of the vehicles, but in the absence of expert evidence I have to do the best I can given the evidence that is before me and that is the view that I have formed from that and the other evidence, in particular the evidence from Mr Vaughan who, I must say, has to be considered more reliable than the evidence of Mr Ross, that the glancing blow did indeed occur with the consequences which followed. . .

Accordingly, I do find that this accident occurred in the way described by Mr Vaughan.

What the Court of Appeal did – it did not have any expert evidence – it speculated as to what the photographic evidence of the skid marks really meant.

BELL J: I think it rejected the photographic evidence but it referred to the oral evidence concerning the skid marks.

MR STITT: But the oral evidence was the evidence of the members of the family and the trial judge was critical of that and critical of the veracity of their evidence and he did not really accept it.

BELL J: He did not make a finding that he did not accept it, did he?

MR STITT: I think he says that it was difficult to accept some of their evidence. Yes, he did. But there was no expert evidence dealing with the debris. Mr Vaughan was cut out of the car. He had to be released by being cut out which - - -

BELL J: Mr Ross.

MR STITT: No, Mr Vaughan had to be cut out of his car. There was debris on the road which was difficult, if not impossible, to draw any conclusion from that. But, the Court of Appeal said, well, from the position of debris, we conclude that what Mr Vaughan said was wrong. From the position of the skid marks, we conclude that what Mr Vaughan said was wrong. They were speculating in a way which was impermissible and in a way in which the trial judge did not do. The trial judge did not speculate about what that debris meant in terms of causation. Ultimately, it came down to who was to be believed. In our submission, the Court of Appeal should not intervene in situations where there is the trial judge’s finding as to credit. If the Court pleases.

BELL J: We are of the opinion that the application does not raise any questions suitable for the grant of special leave, nor does it engage the interests of the administration of justice in the particular case. Special leave is refused with costs.

AT 10.52 AM THE MATTER WAS CONCLUDED