Lee v Lee & Ors; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2019] HCATrans 67 (10 April 2019)

Last Updated: 12 April 2019

[2019] HCATrans 067

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B61 of 2018

B e t w e e n -

LIEN-YANG LEE

Appellant

and

CHIN-FU LEE

First Respondent

CHAO-LING HSU

Second Respondent

RACQ INSURANCE LIMITED

Third Respondent

Office of the Registry
Brisbane No B62 of 2018

B e t w e e n -

CHAO-LING HSU

Appellant

and

RACQ INSURANCE LIMITED

Respondent

Office of the Registry
Brisbane No B63 of 2018

B e t w e e n -

CHIN-FU LEE

Appellant

and

RACQ INSURANCE LIMITED

Respondent

KIEFEL CJ
BELL J
GAGELER J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 10 APRIL 2019, AT 10.17 AM

Copyright in the High Court of Australia

____________________

MR G.W. DIEHM, QC: May it please the Court, I appear with MS M.M. CALLAGHAN for the appellant in appeal B61/2018. (instructed by Slater & Gordon Lawyers)

MS. J.M.N. HEWSON: May it please the Court, I appear for Mr ChinFu Lee, who is the first respondent in B61/2018 and the appellant in B63/2018. (instructed by VBR Lawyers)

MR M. GRANT-TAYLOR, QC: May it please the Court, I appear with MS J.M.N. HEWSON for the second respondent in B61/2018 and for the appellant in B62/2018. (instructed by Littles Lawyers)

MR R.J. DOUGLAS, QC: May it please the Court, in each appeal I appear with MR B.F. CHARRINGTON for RACQ Insurance. In the first appeal it is the third respondent; in the other two appeals it is the respondent. (instructed by Gilchrist Connell Lawyers)

KIEFEL CJ: Yes, Mr Diehm.

MR DIEHM: Thank you, your Honours. Your Honours, as a preliminary matter, yesterday as a result of a realisation that there was a deficiency with respect to the materials included in the appellant’s book of further materials, my instructing solicitors caused to be filed a supplementary book of further materials for the appellant and we seek leave to have that added to the materials for the Court’s consideration.

KIEFEL CJ: Is there any objection to this course?

MR DOUGLAS: No, your Honour.

KIEFEL CJ: Yes, you have that leave.

MR DIEHM: Thank you, your Honour. The respondents had all indicated their consent before those documents were filed, but Mr Douglas has recognised that there were some documents that were annexures to a report of Dr Grigg that had been included in that supplementary bundle of further materials that comprised four photographs that had been excluded, amongst other annexures that were thought by my side to not be particularly relevant. Mr Douglas wishes to make some submissions about them.

We have copies of the photographs. They are not the direct copies of the pages but they are the copies of the photographs and I understand that they would suffice for Mr Douglas’ purposes. So, subject to such directions as the Court may wish to make about how we proceed with respect to them, we would propose to hand

KIEFEL CJ: Is this Court really going to be assisted by photographs?

MR DIEHM: It is something that my learned friend wishes to make submissions on.

KIEFEL CJ: It is a legal question before the Court, but if Mr Douglas wishes to raise the matter he may do so.

MR DIEHM: Thank you, your Honours. We will have the photographs available if he needs to refer to them. Your Honours, for the purposes of our oral submissions we will refer to my client as “the appellant”, one of three before the Court, and refer to the insurer as “the respondent”, though it is the third respondent to my client’s appeal. Your Honours will have seen that there are two grounds of appeal that are relied upon, the first concerning the adequacy of the reasons given by the Court of Appeal for dismissing the appeal and the second concerning the Court’s approach to the question of a rehearing.

We will address the first ground of appeal first – that is, the adequacy of reasons point. Our submission is that before the Court of Appeal submissions were made on behalf of the appellant, both in writing and orally, that raised the question as follows: the court being urged as it was to determine that whoever was the driver of the vehicle at the time of the accident was wearing a seat belt.

If that conclusion was reached in favour of the appellant, then the hypothesis posed in the respondent’s case – that is to say that his blood came to be on the airbag by virtue of direct contact with the airbag, between it and his bleeding face – that hypothesis could not be accepted because, the submission was developed, the seatbelt in the driver’s seat of the Tarago the subject of the proceedings was what was known as a pretensioner seatbelt, that is to say, it was fitted with a device by which, at the point of impact, at the same time as the airbag would be detonated, the pretensioner would be fired so as that the seatbelt would be pulled back, tightening and holding as best as it could, the person to the seat.

The next point of the submission was to say that when one examined the photographs, being the only evidence available of the staining to the airbag, the staining was substantially on the windscreen side of the airbag at the point in time when it was inflated. So the submission went that between – sorry, I withdraw that. The airbag therefore must have been deflated at the point in time that the staining was caused, consistent with evidence given by Dr Grigg as to the speed at which an airbag deflated after inflating in an accident, but that the appellant’s bleeding face, being the relevant part of his body, could not, if he was the driver, have at any material time been in contact with those parts of the airbag. The seatbelt would prevent that from occurring.

Those submissions we have identified firstly with respect to a written submission that is in the appellant’s book of further materials at page 6, and in particular at paragraph 28. A further written submission was made which is at page 8, paragraph 38.

Now, in terms of the oral submissions, they are extracted – that is not to say that these were the oral submissions on the point, but they are indicative of the point – from page 10 to page 17 of the book of further materials. They included taking the court through the photographs, as appears on page 10 – that is photographs of an airbag that was not the subject airbag, but detonated, to give orientation. Then over on to page 12, there were submissions that took the court through the photographs of the subject airbag, pointing to where the stains appeared in comparison to the sample airbag that was in the first photographs that the court was taken to.

That continued then over page 13, and then to page 15, where we took the court to Dr Grigg’s evidence about the speed at which airbags detonated. Down at about line 45, using the court index on the side, at page 15, a reference to Dr Grigg’s evidence about seatbelt pretensioners.

GAGELER J: Mr Diehm, what would be the consequence of you succeeding on ground 1 and not succeeding on ground 2?

MR DIEHM: On ground 1 the matter – it could be that in those circumstances the Court could remit the matter to the Court of Appeal for it to reconsider the matter.

EDELMAN J: Even though we have all of the same material before us?

MR DIEHM: What we urge, though, instead, picking up your point, Justice Edelman, and this would follow particularly, obviously, with success on ground 2, but it could follow from ground 1, is that this Court could decide the matter. The Court of Appeal described the cases as being finely balanced in respect of cases of the parties and had expressed a view prior to considering the effect of the DNA evidence as it saw it that, up to that point in time, the appellant’s case was a strong case.

NETTLE J: We do not have the advantage, though, of seeing the plaintiff and his mother give their evidence, do we?

MR DIEHM: No.

NETTLE J: The trial judge did but he was compromised inasmuch as he made a mistake about the seatbelt being done up.

MR DIEHM: That is so.

NETTLE J: Would it not have to go back to a retrial if we were to reach the view that ground 1 was sustainable?

MR DIEHM: Your Honour, in my submission, that would not be necessary because, firstly, this was a case that was a strongly circumstantial case. This Court and many other courts in Australia at the appellate level have recognised that there are limits on the capacity of trial judges in the best of circumstances to evaluate the reliability of a witness’ evidence just by observing them give their evidence. This was a case where, in our submission, the reliability of what was said by each of the appellant and his mother was one to be assessed really by reference to the circumstantial evidence as to whether or not it was contradicted by that evidence.

KIEFEL CJ: To what extent then does your case on this appeal turn on where the evidentiary onus lay and whether it was discharged and how it shifts because you say you have got to - the judgment of Justice McMurdo in the Court of Appeal gets to a certain point where the probabilities indicate to his Honour that the appellant was not the driver.

MR DIEHM: Yes.

KIEFEL CJ: But then evidence which might shift it the other way is taken into account. So, are you going to pursue that line of argument?

MR DIEHM: No, your Honour, for this reason. This is one of those cases where, on precisely the same issue, each party bore an onus, as it were.

KIEFEL CJ: They bore a legal onus?

MR DIEHM: A legal onus.

KIEFEL CJ: What about the evidentiary onus?

MR DIEHM: Yes, I take your Honour’s point in that respect. Your Honour, in our submission, the matter can be decided by reference to the evidence without the need to be concerned about changing onuses of proof, that is to say, the evidence will support one conclusion or not. I hope that answers your Honour’s question.

KIEFEL CJ: You are suggesting a holistic approach to the evidence rather than discerning which party placed reliance upon evidence to shift it back because in the end Justice McMurdo found that the appellant’s case was weak.

MR DIEHM: Yes.

KIEFEL CJ: But not weakened.

MR DIEHM: Yes.

KIEFEL CJ: Perhaps another approach would have been that it was weakened by a view one might take of the DNA evidence

MR DIEHM: Yes.

KIEFEL CJ: which, of course, was relied upon by the respondent.

MR DIEHM: It was. There were two competing hypotheses being advanced by the parties to explain the presence of the blood on the airbag. My client did not and does not assume an onus to prove how the blood got onto the airbag but rather had assumed and continues to assume an evidential onus to raise an explanation about how that might have been so. But, rather more, what my client submits is that it was the respondent’s case and a case that it tied itself to that it got there by a particular means, not by any other possible means but by direct contact between the bleeding face of the appellant and the airbag. An expert witness called by the respondent – the expert witness called on the point – disavowed in a report that it got there by means of drip or spatter

KIEFEL CJ: Is this Dr Robertson?

MR DIEHM: It is.

KIEFEL CJ: Was Dr Robertson accepted as an expert in this field?

MR DIEHM: Her evidence was not objected to. In certain respects it was challenged as to the extent of her expertise. What she undoubtedly had expertise in – and which there was no challenge to – was as a medical practitioner specialising in forensic pathology. Her opinion, with respect – as she said herself in her evidence – drew upon that expertise to understand injuries and what injuries can do in terms of bleeding. So, in that respect, when she offered this opinion, it was as likely to be an opinion based upon that expertise. Importantly, in that respect, no challenge was made to her opinion that it was not drip or spatter by either party and no submission was made in the trial or before the Court of Appeal that it was drip or spatter.

NETTLE J: But how can you have it both ways? How can you have it one way that it is not drip or splatter, but on the other hand you say that you should not accept, as she has contended, that it was not wiped?

MR DIEHM: Because, on her evidence there were problems - on her own evidence there were problems in saying that it was not wiped, that is, that there were limits with respect to the sites that affected whether or not that opinion could be right and that was the subject of crossexamination, whereas the drip or spatter comment, there was no challenge to that.

NETTLE J: Yes.

EDELMAN J: But was there challenge to her expertise in relation to the wiping, rather than the lack of challenge in relation to drip or spatter?

MR DIEHM: There was challenge to her expertise, not in the sense of suggesting that her evidence was not admissible, but her relative degree of expertise and experience on the interpretation of staining patterns, that is to say, what she could say about this question as to whether or not it was a stain that was caused by transfer from a direct bleeding source or from a secondary transfer as was contended by the appellant. I must say that those were selfdeclarations by Dr Robertson. She raised them herself at times when she considered that questions were getting beyond the bounds of her expertise rather than it being a preconceived attack upon her expertise.

BELL J: Can I just raise with you, as I understand it, at the time Dr Robertson expressed her opinion respecting the likelihood of direct contact between the appellant’s bleeding face and the airbag, Dr Robertson was not aware that the bloodstaining was on the windscreen side of the airbag. She understood that there was a large deposit of blood on the left side of the airbag and she opined that was consistent with an injury to the left side of the appellant’s face.

Subsequently, in the course of crossexamination, it was drawn to her attention that the bleeding was, as I understand it, on both the left and the right side of the airbag on the windscreen side and she gave an account that that was explicable because of movement of the face in relation to the airbag. Is that so?

MR DIEHM: That is so. That is rather – she said, on that latter point, that she could not discount there had been some small movement, and she described it as small movement. The other thing that I should make clear is that on the case advanced by the appellant, both by way of submissions and crossexamination, it was that there were substantial parts of the stains that were on the windscreen side of the airbag, not that they were exclusively on the windscreen side of the airbag. That was the point of the submissions that were made to the Court of Appeal about taking them through those photographs, both of the unstained airbag, or an unstained airbag, and the subject stained airbag.

BELL J: If I could just interrupt you again.

MR DIEHM: Yes.

BELL J: Justice McMurdo at appeal book 91, paragraph [146] says – he notes that the blood did not appear on the section of the airbag that one might expect it to be if there were direct contact but then his Honour goes on to say that is not to say that the blood on the airbag could not have come from the driver and to express the view that:

Dr Robertson’s explanation for how the blood could have come from the driver to those other parts of the airbag could not be readily rejected.

MR DIEHM: Yes.

BELL J: And that is a reference to Dr Robertson’s opinion in answer to a question in crossexamination that there could have been some small movement of the appellant’s face in contact with the airbag.

MR DIEHM: It is.

BELL J: Do I understand that to obtain the orders that you say it would be open to this Court to make you seek to contend that a proper examination of the expert evidence of Dr Grigg suggests that that opinion is incontrovertibly inconsistent with the evidence?

MR DIEHM: That is our submission, yes.

EDELMAN J: In other words, even if one were to put aside any credibility issues related to the evidence given by the appellant or other witnesses supporting the appellant, the evidence by itself, the circumstantial evidence by itself suffices to reach the opposite conclusion from the Court of Appeal.

MR DIEHM: That is so. But the only case posited by the respondent was a case that the blood came onto the airbag by direct contact between the bleeding face of the appellant and the airbag and that given the position of the stains on the airbag and the operation of the seatbelt pretensioner that conclusion is not sound. It could not be reached.

NETTLE J: Because you just could not get much blood out in .23 of a second, is that it?

MR DIEHM: Well, that is part of the problem. But the other issue is that at the point in time when the airbag is inflated, parts of the stain, significant parts of the stain are on the side of the airbag that would be facing towards the windscreen and, indeed, down at the steering boss, steering wheel boss, well behind where the airbag would be at the point in time at which it is inflated.

NETTLE J: Yes.

MR DIEHM: Some of those stains could only get there, on Dr Robertson’s theory, by the appellant’s face effectively resting against the steering wheel boss when on Dr Grigg’s evidence, the seatbelt pretensioner has fired at the same time as the airbag, pulling not just the sash part of the belt but the lap part of the belt with a considerable force, he explained in his oral evidence, to pull the person back into the seat to minimise their forward movement, as it were, and then it locks and it never moves – cannot be used again.

So there can be no question of the appellant’s head, in our submission, having been in a position to have made contact with these very places because the staining is spread across the airbag in various locations and especially in those locations that are down at the steering wheel boss.

Your Honours, in that respect, appreciating that this is a question of law, but referring to the submissions that were made to the Court of Appeal, to illustrate those points we invite the Court to look at the photographs that the Court of Appeal was shown, some of them at least, in the course of those submissions.

The first, usefully, are in the respondent’s book of further materials, and appear at pages 49 and 50. Now, these are photographs of an airbag from a Toyota Tarago that was detonated by Dr Grigg and photographed for this purpose. They allow us to get some orientation for some markers that can be seen in the photographs of the subject airbag. So looking at the photograph No 8 at the bottom of page 49, your Honours will see that in the centre of the inflated airbag there is a round seam forming a circle in the middle of the airbag.

That is what we would describe as being, and did describe to the Court of Appeal, as being the inner seam – and it is green in colour. There was actually an airbag, this airbag that was tendered as Exhibit 6 in the proceedings as well. In the centre of that inner circle, there is what appears faintly as a red mark, like a brand mark, and that can be seen in the photographs that we will come to of the subject airbag.

Looking at photograph No 7 at the top of the page, which gives a profile view of the airbag, your Honours will see that running around the outer circumference of the airbag is another seam – joining together, obviously, those two pieces, front and rear section - and that seam can be seen as well from the top views in the photos on page 50.

If we can take your Honours then to the appellant’s book of further materials, there are at pages 19 and 21 respectively, two photographs of the subject airbag taken by the police. The photograph at page 19 was taken on 26 September 2013, the day after the accident, and at a police holding yard. For comparative purposes, the photograph at page 21 was taken on the day of the accident, at the scene of the accident. There seems to be some difference in the movement of the airbag, the positioning of the airbag across those two photographs, but not marked, and nothing that impacts upon the survey that we will briefly take your Honours to.

We start with a photo on page 21. This photograph contains two of the references that I have just taken the Court to, in terms of staining in the vicinity of the steering wheel boss. They are, firstly, the section that – one looks at the steering wheel as if it was in its natural position, with the car pointing straight ahead. It would be at the bottom of where the airbag comes out through the steering wheel boss. Your Honours may see that there is bloodstaining there where the airbag inserts inside the steering wheel boss at that point in time.

Dr Grigg’s evidence explained that when the airbag detonates that boss is designed to separate into flanges, as it were, and the airbag comes out from between and then those flanges of course, they are still attached at their bases, tend to afterwards try to spring back into place and that is what appears to have happened there. But the material that the flatbottomed flange then is trapped around is bloodstained and that must on any view of it in our submission be a material part of the airbag that was behind the airbag from the point of view of the driver at the time it was detonated.

The other reference there that we draw your Honours’ attention to is, looking again as if the steering wheel was pointing straight ahead, there is at the base of the boss a bloodstained tab of material that is protruding into the open space but not extending beyond the diameter of the airbag.

If I can trouble the Court to go back to the respondent’s book of further materials, what that piece of material would appear to be is evident at page 50. Your Honours can see there is there in each of those photographs on that page a flange in the open position and there is a piece of material protruding from that flange.

On the examination of the airbag that material is part of the material where the airbag has passed through the locating part within the boss and part of the material sticks out the other end. So that has become bloodstained and, again, in our submission, that bloodstaining could only have occurred at the point in time when the airbag was fully deflated like the nearby part. The dimensions of the airbag Dr Grigg mentioned in his report. The airbag is, unsurprisingly, of a considerably greater diameter than the steering wheel, as the photographs show.

To complete the exercise, on page 19 of the appellant’s book of further materials, there are seams that can be seen in the photograph relative to the bloodstains. Perhaps if I start at what is the bottom of the photograph your Honours may see at the apex of the airbag the red stamp that I referred to earlier as being the brand in the centre of the airbag. To its left and to its right, towards the bottom of the airbag, is his position at that point in time.

Your Honours will see stitching for that centrepiece on the front of the airbag and then, looking up to where the police tag with the numbers and writing on it is, towards the centre of the photograph, immediately above it there is a line of stitching that can be seen continuing interrupted right over to the righthand side of the photograph – the righthand edge of the airbag – and also continuing to the lefthand side of the police tag and so one can see that the bloodstaining that appears to the upper righthand side of the tag, above the tag and to the upper lefthand side of the tag, is above the line of that stitching.

So, again, having regard to those photographs of the detonated airbag in Dr Grigg’s report, all of that staining is staining that would be on the rear, the windscreenfacing side of the airbag at the point in time in which it was detonated. As for the heavier staining over on the lefthand side, some of it – much of it – would appear to be below the line of the stitching, although the stitching does seem to disappear. But there is some which is above the stitching as well.

Your Honours, collectively, in our submission, an examination of those photographs shows that the point that we made at the Court of Appeal was accurate – that is to say, that substantial parts of the staining was in a position on the airbag where it could only get at the point in time at which the airbag was fully deflated.

Dr Grigg’s evidence on these points – can we take your Honours firstly to the supplementary book of further materials for the appellant. Dr Grigg authored two reports. At page 72 of the supplementary book in question 1 he explained the basic operation of airbags as part of the Supplemental Restraint System. Relevantly to the pretensioner question here, at page 75 in answer to question 6 he referred to the front seatbelts in the Tarago being pretensioner seatbelts:

They are activated by the airbag control module. When fired, they tighten and lock the seatbelts to assist in presenting the occupants being thrown forwards during a collision.

He explained why they appeared to be unretracted in the photographs. Down at line 30 in the paragraph commencing there he referred to what happens when vehicles collide with poles and so forth:

the occupants tend to move from their seated position towards the point of impact.

Then at line 35 he spoke about:

The effectiveness of the restraint provided by a seatbelt is very dependent on how the seatbelt is adjusted –

that if it was loose during a crash:

significant movement can occur before restraining tension is developed and this can result in injuries from the seatbelt itself –

Then he concluded that paragraph by saying:

Belt pretensioners are designed to tighten seatbelts in a crash situation so as to pull the person against the seat and to minimise the forward movement that can occur and the risk of injury from slack belts.

We draw your Honours’ attention to the question No 8 and his answer only for this purpose. In that question and answer Dr Grigg was addressing an issue about consistency of injury. Your Honours may recall that there was an issue both at trial and in the Court of Appeal about whether the appellant’s injuries were more consistent with him being in the rear seat or the front seat, an issue that this Court is not concerned with. Dr Grigg had offered an opinion that they were far more consistent with him being in the rear seat and he relied upon the ANCAP data in that respect, and I mention that only because our learned friends rely upon a particular part of the judgment of the Court of Appeal that rejects Dr Grigg’s evidence, but it is concerned with that issue rather than with the other

BELL J: That is the one point in the analysis in the Court of Appeal in which there is any reference to the pretensioners and the operation of the airbag.

MR DIEHM: It is, and because it was a relevant issue to the ANCAP point because Dr Grigg’s evidence drew upon what were the methods of restraint in the vehicle and what the statistics showed about the nature of injuries suffered in those circumstances. But it was not one that went to this issue which was concerned with what happened afterwards, as it were, in terms of contact with the airbag.

In terms of his oral evidence, there was a third issue that Dr Grigg had addressed that is referenced in the judgment – that is dealt with on page 78 in his oral evidence and that concerned his explanation about how it can be that a seatbelt buckle could remain done up and be jammed after a heavy collision. Again, that is a separate issue from the one that we are concerned with here.

During the course of crossexamination, the crossexamination of our learned friend focused upon the ANCAP issue and the consistency of injuries. There was – because of the issue Justice Bell has identified – some crossexamination about loosefitting seatbelts and some questions were asked by his Honour and then there was some reexamination of Dr Grigg to clarify the position with what he was saying about the way in which these seatbelts operate compared to others.

That appears at pages 88 to 89 of the supplementary book and starting at about line 30 and there Dr Grigg again explained the effect of the firing of the tensioners – pulling the person back into the seat, minimising the risk of them flying forward and so forth. Then he distinguished that operation of these belts from the belts that we are all familiar with from less modern vehicles – the inertia reels – which, as he explained, operate really only to stop a person from moving beyond a certain point rather than pulling them back into the seat as the seatbelt pretensioner does. He confirmed that at page 89 at about line 15. Then, from line 20, the trial judge asked Dr Grigg some questions about that and he clarified about when he was talking about pretensioners in his evidence as opposed to inertia reels. Then, at about line 28, he said that:

The pretensioner is an explosive device that’s triggered by the airbag sensing system. And it goes off to pull the person back more or less simultaneously.

And will it pull up the lap as well –

and he said yes. He said:

it’s a powerful force.

So, that is the explanation that was given by Dr Grigg about the way in which seatbelt pretensioners work. They exert this force to pull the person back into the seat and then lock and the person cannot move, short of undoing the seatbelt, no doubt, from that point in time, other than, of course, we accept, that the person’s head might be able to move forward to the limits that their neck permits that to be so. But, in our submission, that does not amount to any explanation for how the bloodstain from the plaintiff’s face could have been in direct contact with those surfaces of the airbag that we have taken your Honours to in the photographs.

BELL J: You place some emphasis, in your submissions, on Dr Robertson’s evidence as to the length of time it would take for the contact to occasion the extent of staining.

MR DIEHM: Yes.

BELL J: Where do we find that?

MR DIEHM: There are extracts from Dr Robertson’s oral evidence in both the appellant’s book of further materials and the respondent’s book of further materials. If your Honours bear with me – yes, I am indebted to Mr Douglas – page 29 of the appellant’s book of further materials. At the top of the page I asked her the question about the “period of time contact”. It goes down to about line 20.

So we have a situation where it is not just that there is this spread of stains and that those stains are in locations that it cannot be conceived how the plaintiff’s face could be in a position to cause them, but there is then a question of time. It is imprecise here, we accept, but this is the level to which the evidence for the respondent’s hypothesis rises – that is to say that this staining cannot happen in just a second or so.

It cannot be said just how long it would be but it could be as long as several minutes required to produce that staining, although not as long as 10 minutes. What we know, of course, from uncontroverted evidence, or at least perhaps I should rephrase that because there was some minor challenge about it, but rather based upon the Court of Appeal’s own finding is that the driver of the other vehicle, Mr Hannan, was beside the Tarago and looking into it at a point 60 seconds or so after the point of collision. That was Justice McMurdo’s finding, having evaluated that evidence.

BELL J: I thought it was a range of 30 to 90 seconds.

MR DIEHM: That was the range that was given and so there were various statements that were tendered. In his oral evidence he was tending towards a lower estimate of between 30 to 60 seconds and he gave a description about what he did, which is perhaps a more useful way rather than trying to assume a level of accuracy with respect to a stop clock, as it were. But what he said happened is that the vehicles having collided, he looked up and saw what he feared was smoke coming from each of them.

He had his dog in the car with him and so he collected his dog off the front seat beside him, went out through his driver’s door, across to the other side of the road, a distance of no more than 30 metres away from the two vehicles, put the dog down on the ground and ran back to the Tarago, getting over to the other side of the driver’s side. Those were the tasks that he completed with the kind of urgency that one might expect in the circumstances that presented.

BELL J: By the time that he got to the Toyota, the appellant’s father was in the rear well of the vehicle between the first row of passenger seats and the driver’s seat?

MR DIEHM: Yes.

BELL J: And the three children were in the back seats.

MR DIEHM: That is so.

BELL J: Essentially, in his careful review of the evidence, Justice McMurdo reasoned that one would consider it was very likely that the appellant was in the back seat behind the driver’s seat simply because it was improbable that in that space of time the back seat might have been lowered by the father from a position behind it and that the, by this stage, quadriplegic appellant might have been dragged through, placed in the seat, with the father manoeuvring himself in front of the other two injured boys. That was the essence of his Honour’s reasoning, was it not?

MR DIEHM: Well, except that his Honour has accepted the respondent’s hypothesis, so his Honour has accepted that in the end that must be how the appellant came to be in the rear seat at that point in time.

BELL J: By his Honour’s approach to acceptance of the DNA evidence.

MR DIEHM: Yes, quite so.

BELL J: But that really, I suppose, brings you to your second ground, does it not?

MR DIEHM: It does.

BELL J: Because what his Honour did was to consider that the DNA evidence weakened the appellant’s case and then, as it were, his Honour went back to the trial judge’s advantage.

MR DIEHM: Yes, that is so.

BELL J: Rather than considering, notwithstanding the DNA evidence, the probabilities as his Honour considered on the basis of the inferences that he drew from the evidence.

MR DIEHM: That is our submission, yes.

BELL J: Yes.

MR DIEHM: So, in terms of Dr Robertson’s evidence - in the course of it, and I am now taking your Honours to the appellant’s book of further materials at page 28 at about line 35, using the court’s indexing, and again at line 40, the topic of the state of the airbag at the point in time when the airbag – when the stain was caused, as to whether or not she was assuming it to have been inflated, and what she knew about whether it had deflated were canvassed. She said that she was:

not sure if the airbag subsequently deflates after deployment at some stage, but there could still be contact -

was the premise for the opinion that she was offering in that respect. At page 29 there were, at about line 40, some acknowledgements by her of the difficulties that there were with respect to interpretation of these bloodstain patterns and the inexactness of the science that was involved in the exercise. At page 30 at about line 40 she acknowledged that she could not exclude the possibility:

that the blood that is seen on the airbag has been deposited from something other than a bleeding source -

which is what informs our submission that, on her evidence, there were only two explanations being offered up as to how this blood could have been on the airbag that is, blood as tested that was the blood of the appellant, and that was that it came from, as her preferred hypothesis was, that it was from the bleeding face – direct contact with the bleeding face, or that it was a secondary transfer.

There were limitations with Dr Robertson’s evidence about the understanding about the way in which airbags worked and, indeed, at page 32 of the transcript she was asked – this is at about line 15:

Have you ever been involved in a case for blood pattern analysis concerning an airbag?

She said she had not. She said that she had read literature about it and I asked her what literature she had recourse to. She said she could not recall but it was a scientific article. At about line 35:

And it was about blood pattern analysis concerning airbags?I believe it was, yes. This was some time ago.

She did not recall anything about its contents. Then at line 43, she declared that she did know anything about how airbags deployed. So those matters, in our submission, which the court was taken to with respect to Dr Robertson’s evidence underscored the need for the court to deal in its reasons with respect to the competing hypotheses and the effect of Dr Grigg’s evidence compared to Dr Robertson’s hypothesis which the court proposed or did indeed adopt.

She was asked at page 34 concerning again going towards the question about the extent to which she could exclude that there had been contact from an object such as a hand with blood on it that produced the staining and, at about line 45, I took her to one of the recognised difficulties that she accepted with respect to looking for the shape of the secondary object, that is to say, her proposition was that you would expect to see something of the shape of the secondary object on the airbag. It was put to her that the nature of airbag material was such that the shape could be obliterated. She said:

It may have been at least partly obliterated, but you would still expect to see some traces of it.

Then over onto page 35 at about line 15, I asked her about what difference it would make to have the ability to examine the subject airbag and she said that:

perhaps an experienced blood spatter pattern analyst working in the field might be able to deal with that.

Then she was asked as to whether or not she claimed that level of expertise, and she said that she did not. Again at about line 33, there was a question about the differences between natural fibre and synthetic fibres such as here and she again declared that it was getting outside of her expertise to be commenting upon those differences in the context of the argument about a secondary transfer being involved in the case.

Indeed, consistent with that, when it came to the reexamination of Dr Robertson by Mr Douglas, which is in the respondent’s book of further materials at page 14 about line 35, Mr Douglas asked her about whether on the examination of the photographs that she had had access to whether she saw the:

scintilla of a suggestion of such swipe or wipe patterns on this airbag?Not in the photos that I saw, no. But I must emphasise I did not personally examine the airbag.

So the evidence that she could offer against the point was by then considerably qualified, that is, against the hypothesis that a secondary transfer from an object such as a hand could have been involved. The evidence that she gave that seems to really have informed the conclusion of the Court of Appeal about Dr Robertson’s hypothesis not being easily dismissed appears again in the respondent’s book of further material at pages 12 to 13.

She was asked there about the positioning of the stains. At about line 47 she said that, that is line 45, she acknowledged that she was not anticipating, by the analysis that she had done, that there were significant parts of the staining that were on the windscreen side of the airbag. Then she said, at about line 50, when it was put to her that given her evidence, that it was an “entirely different proposition”, that is, when the staining was in that position. It was as much as she could say that it:

doesn’t exclude contact with the face when the bag is deployed.

Now, that is a matter that was open for the Court of Appeal to interpret, having regard to the submissions that we have made, as to whether that was a physical possibility or not. But it goes as much as to say that as for a hypothesis, by then it was only just that, that is to say, she is not saying, “Look, that does not cause me any doubt that this is still direct contact”. She is simply saying that she could not exclude contact when the bag was deployed. Of course, there could not be such contact when the bag was deployed, because those parts of the airbag were behind it.

Then in the next question and answer, with respect to the staining on the righthand side, that was where she offered the view that Justice Bell remarked upon before:

For example, I’ve not discounted that there could have been some even quite small movement of the face following initial contact with the airbag.

In a series of questions that followed from his Honour on page 13 from about line 18, she settled at about line 37 with an answer to say that the staining was:

probably more dependent on where the contact subsequently ended and was in contact with the surface longest -

in that respect, so she seems to have been less concerned with what was happening in terms of small movement causing staining around various places, as opposed to pointing to it being the resting point and, indeed, more than just the final point, a point where the contact remained for long enough to produce the staining that she was seeing.

Your Honours, a survey of that evidence, both the physical evidence and the evidence of the two experts informed the contest that was raised by the appellant concerning this particular issue and it is our submission that the Court of Appeal did not in the end give reasons that addressed that argument.

We have referred in our written submissions to what was said by this Court recently in DL v The Queen [2018] HCA 26; (2018) 356 ALR 197. This is in the joint book of authorities and the first reference to it, which is in tab 5, the case appears - what we take your Honours to is the judgment of the majority, Chief Justice Kiefel and Justices Keane and Edelman, and there the majority’s relevant part of the reasons appear at page 79 of the book, paragraphs [32] and [33] from the judgment. The Court spoke about the shifting degree of requirement for reasons to be given. In paragraph [33] the majority is speaking of at one extreme reasons not being merely inadequate:

because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion.

Then there was a position in between those extremes. Our submission is that this was at the extreme where there was a requirement to explain the reasoning for rejection of the argument that was advanced here by the appellant. It was a substantial argument and one that certainly had sufficient merit to warrant being addressed. Indeed, of course, we submit that it was plainly right. But on any view of it, it was one that needed to be dealt with at some length and we will come to in a moment the way in which the Court of Appeal did deal with it.

Justice Bell’s reasons in dissent, but on the question of principle, involved being consistent with what was said by the majority appear at page 90 of the book in paragraph [82] and the question here really was one of the resolution of material disputed factual questions and of addressing the parties’ submissions and explaining the process of reasoning.

Now, your Honour Justice Bell qualified that by saying not necessarily at any length but, of course, sometimes at some length if that is what is required to explain the reasoning and here it is not a question of the length because, in our submission, there was really nothing much that addressed the point.

Then we turn to Justice Nettle’s judgment, again in dissent, but consistent with the other judgments in terms of principle, which is at page 103 of the book, and the relevant parts are contained in paragraphs [130] and [131]. A similar statement to that which appeared in the other judgments concludes paragraph [130] and then in paragraph [131] your Honour elaborated in respects that, in our submission, are particularly material here, speaking of the need for reasons to be sufficient to allow the parties:

to see the extent to which their cases have been understood and accepted . . . This applies both to evidence and to argument. If a party relies on relevant and cogent evidence which the judge rejects, the judge should provide a reasoned explanation for the rejection of the evidence.

Then over on page 104 at the top of the page your Honour said:

if a party raises a substantial argument which the judge rejects, the judge should refer to it and assign reasons for its rejection. And in providing reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, for reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to the conclusion. Failure sufficiently to expose the path of reasoning is therefore an error of law.

We accept that Justice McMurdo’s reasons are elaborate in many respects. It is a lengthy judgment and his Honour canvassed a lot of matters in the course of the judgment. But on this critical issue to the case of the appellant that was argued before the court, in our submission the reasons do not satisfy those tests as expressed in those judgments there.

GAGELER J: As I understand it, you are not asking for a rehearing before the Court of Appeal.

MR DIEHM: That is not the relief that we have sought, no. We ask this Court

GAGELER J: You really have to move on, have you not, to establish that the argument should be accepted?

MR DIEHM: Thank you, your Honour; I will do that.

BELL J: And in that regard, in some respects your complaint about the sufficiency of reasons could be said to be a complaint about the process of fact finding since you contend that, had your argument been analysed, your submission is inevitably it would have led to the result that you seek.

MR DIEHM: That is so.

BELL J: In that respect, sometimes it has been pointed out that the requirement to provide reasons operates prophylactically on the judicial mind, to quote Justice Meagher in Beale v Government Insurance Office. In other words, the process of providing reasons is important to the process of fact finding.

MR DIEHM: It is an internal test that may apply to the judicial mind as to the correctness of the conclusion that was then reached, yes, and in our submission that is so. Those submissions, the material that we have been through at some length there with respect to this first ground of appeal – we will move now to our second ground of appeal – are a substantial part of the information for the second ground of appeal, that is to say based on the material or the evidence we have referred to and the arguments we have referred to, that was a core part of the reasoning as to why on a proper approach to the rehearing the Court of Appeal would have found for the appellant. With respect to the second ground, there are

EDELMAN J: The second ground is really the first ground, is it not? In some respects, the second ground is really your only ground because if you succeed on the second ground you get the relief that you are asking for, but if you do not succeed on the second ground does the first ground go anywhere? The issues canvassed in the first ground come into the second ground anyway.

MR DIEHM: They do. Your Honours, we have approached the two grounds as being ones upon which we should succeed on both. I appreciate we cannot presume that to be the case, but in the sense of failure on one is likely to mean failure on the other from that point of view. I appreciate that that is not necessarily strictly speaking so and that on the first ground we could succeed without succeeding on the second ground.

NETTLE J: You might succeed for a new trial on the first ground. I know you do not like that proposition very much but it would be one way in which to go. If one took the view contrary to what I understand to be your submission that the evidence of the plaintiff and his mother are important weighed against the effect of the objective evidence then it would be the way to go.

MR DIEHM: I do not give that away in the sense that if this Court reached that conclusion that there was only success on the first ground and that it could not and should not redecide the case then that relief might be granted, but it is submission that that is not the course that ought to be followed for the reasons that I have already developed.

KIEFEL CJ: It is a little difficult to determine how much weight Justice McMurdo gave to the evidence of the appellant and his mother, given that the process of reasoning seems to have put the appellant’s case at a weakened point, so that the consideration starts from the point at the end of your ground 1 really, the DNA evidence having assumed some weakening effect on the appellant’s case. It becomes finely balanced, to use the words of Justice McMurdo, and it is at that point that his Honour refers to the advantages of the trial judge. Given that his Honour said it was very closely balanced, what do you say about the weight that was likely to have been accorded to the evidence here?

NETTLE J: Can I just ask, when you answer that question, to have in mind paragraph [152] of his Honour’s reasons.

MR DIEHM: Thank you, your Honours. It is my submission that it appears, particularly from the way in which paragraph [152], to which both Chief Justice Kiefel and Justice Nettle referred, that it was a matter that his Honour placed weight on with respect to the final exercise. In paragraph [151], what his Honour said was that, by virtue of the DNA evidence, the appellant’s case overall was substantially weaker, compared to what his Honour had said at paragraph [143], where he had said on the evidence discussed to that point:

it was much more likely that the appellant was not the driver -

So the observation that:

the appellant’s case . . . was substantially weaker -

and then in paragraph [152] his Honour says:

This . . . case was very closely balanced –

having considered all of those matters and then his Honour says, but we have to have regard to the decision of the trial judge and then speaks of the:

limitations upon the use which the judge could make of the way in which the appellant and his mother gave their evidence, it is not demonstrated that the judge misused the advantage which he had from hearing and seeing this evidence as it was being given.

Part of that, having regard to the other observations made by his Honour, would appear to be his Honour’s impression of the appellant and his mother. So it appears in a case that his Honour regarded at paragraph [151] to have been finely balanced, even without the consideration we say it ought to have been given to the points we have already developed, that his Honour’s impression of those witnesses was part of what was taken into account by the Court of Appeal in deciding that the

NETTLE J: Yet the trial judge’s assessment of those two witnesses was, you say, compromised by his mistake as to the seatbelt being undone.

MR DIEHM: It was compromised by his recollection that both the appellant and his mother had given evidence through the aid of an interpreter, when in fact the appellant had not.

NETTLE J: Yes.

MR DIEHM: That was the particular compromise and that, in our submission, was an error that showed, particularly given the way in which his Honour dealt with their evidence in that respect collectively, it was in a single paragraph and, indeed, in the same sentence that he referred to each of them in that respect. So he was recalling each of them. His Honour had said

KIEFEL CJ: What do you say that shows? That there is a lack of recollection or

MR DIEHM: Yes, that his recollection is faulty – recollection of the witnesses is faulty. In circumstances where – and it is at page 36 of the joint core appeal book that these passages appear. The relevant paragraphs are [194] and [196]. He said that both of the witnesses were evasive in giving evidence and:

The plaintiff was particularly guarded in his responses.

His Honour then referred to the improbability of the second defendant’s evidence on a particular point about her husband leaving the car quickly. That was “inherently improbable” because of the seatbelt being locked in position after the collision, a conclusion that the Court of Appeal was not prepared to adopt.

BELL J: Was that not an internally inconsistent conclusion in the sense – I understood that the trial judge considered the inference to be drawn from the position of the seatbelt in the photographs after the collision that whoever was driving was not wearing the seatbelt. They had chosen to engage it so that they could sit on the seatbelt and not have the car beeping at them. Now, if that was his Honour’s process of reasoning, what made it inherently improbable that after a collision, when the car was smoking, the father would get out of the driver’s door promptly?

MR DIEHM: Nothing, in our submission. On the father’s version, which was recorded in his statement, which was that he moved the seat back - that is the way it was described - be careful about interpreting that as lowering the backrest but move the seat back, one might imagine that that could be done reasonably quickly in climbing out from underneath the seatbelt in any case. So there was an internal inconsistency with respect to that and it was the only particular that was offered by his Honour the trial judge with respect to the deficiency in the evidence of either of these two witnesses other than his observation of their demeanour. In paragraph [196] his Honour said that he did not accept their evidence and said that:

In making that assessment, I have given due regard to the language difficulties associated with both the plaintiff and the second defendant having to give evidence with the assistance of an interpreter.

Now, to that we submit rhetorically, well, what was the assistance? I am sorry, I will rephrase that. What was the due regard that was given with respect to the evidence? What it tends to suggest is that, without a real recollection of their evidence, his Honour has simply recorded a statement without proper reflection at the end of the day, with due respect to his Honour, upon the evidence of either of those witnesses. It taints his view about the mother’s evidence as much as it does about the evidence of the appellant.

In our submission, contrary to the view expressed by the Court of Appeal, the conclusion could only be reached that no regard should have been had to his Honour’s assessment of the credibility of those two witnesses with respect to the assessment of the case.

KIEFEL CJ: Mr Diehm, could I just ask you for a point of clarification on this ground 2? Does this ground assume the starting point that Justice McMurdo assumed, which was that the case had been weakened by the DNA evidence and you would say, not having regard to Dr Grigg’s evidence, does ground 2 assume that to be the starting point and then consider whether logically and rationally credibility evidence can resolve this finely balanced exercise, or is it also your case that the issue raised by Dr Grigg’s evidence cannot be resolved by credibility? Which way are you approaching it or are you approaching it in both ways?

MR DIEHM: Both ways, I think, your Honour. Our submission is that Dr Grigg’s evidence was bound to be accepted - it was uncontroverted - and that as a result of the impact of it, having regard to the other matters that we have taken your Honours to, even an adverse view about the credibility of the appellant or his mother or both in the way in which they gave evidence would not be any answer to the case that we have advanced and that this case, as I said earlier, was a case that was always to be resolved, given there was a dispute by the reference to the circumstantial evidence.

BELL J: On your second ground, your complaint is with the degree of respect given by the Court of Appeal to the primary judge’s analysis. One sees in the final sentence of paragraph [150] that Justice McMurdo, having concluded that the DNA evidence was significant, says the question for the trial judge was which of the two hypotheses was more probable.

MR DIEHM: Yes.

BELL J: Now, his Honour has earlier found that the trial judge misconceived the case that in fact each party was putting since neither party was putting a case that whoever drove the vehicle had chosen to engage the seatbelt and sit on it to stop it sounding an alarm. So, the trial judge’s analysis of the DNA evidence and of Dr Robertson’s evidence did not assume that the driver, whoever the driver was, was restrained in the seat by the seatbelt.

So to the extent that Justice McMurdo goes from the final sentence of paragraph [150] through to the conclusion of the analysis at [152], his Honour really seems to be giving weight or respect – to use the expression, I think, in Warren v Coombes – to the inferences drawn by the trial judge in circumstances where you say that was an error in the conduct of the sort of review that Fox v Percy required.

MR DIEHM: Yes. As we have said in our outline, to use that perhaps unsatisfactory expression “misuse of the advantage of the trial judge”, it is not just with respect to the credibility finding that the trial judge fell into error, as identified by the Court of Appeal, but there were two particular errors, one that is captured by a point your Honour Justice Bell has said to me about the wearing of the seatbelt and the second was that, on the respondent’s hypothesis, the appellant then had in this 60 seconds or so – or, in fact, less given that he has to actually be in the backseat by the time Mr Hannan gets there, the trial judge had found that the exercise of moving the paralysed appellant from the driver’s seat to the rear seat would be as easy as the father removing himself to the position where Mr Hannan saw him standing at that point in time.

Justice McMurdo disagreed with that conclusion for the reasons that he expanded upon, unsurprisingly so given that the hypothesis involved the father who is said to be behind the seat, reaching around, grabbing a lever and lowering the backrest, presumably onto himself, to get the backrest down to a point where he can then – bearing in mind there are two boys sitting in the seats to the side. So, his Honour, for the reasons that were developed, thought that that was an unlikely conclusion, that it would have been a difficult exercise for that to have occurred in.

So, each of those things weighed upon the weight that could be given to the trial judge’s assessment and the advantage that it could be said that the trial judge had in not only seeing the appellant and his mother give evidence but, as Fox v Percy instructs or refers to the advantage of watching the whole case unfold, his Honour fell into error in a number of important respects in understanding some of the fundamental facts for determination in the case.

Your Honours, we point, with respect, to the following matters with respect to the second ground of appeal, that weigh for this Court in the conclusions we ask it to reach that there was error by the Court of Appeal and that it should be corrected by this Court. These are the established facts – either by findings or by uncontroverted evidence – that in less than 60 seconds or so the appellant was seen in the back seat of the vehicle. As I have just mentioned a moment ago, that means that he had to get there some time comfortably enough before then – whatever the precise time period be that Mr Hannan did not see him being moved there.

The next fact is the one that I have just referred to – Justice McMurdo’s finding – that transferring the appellant to that position would have been a very difficult exercise. The third is – going back to our first ground of appeal – that the blood did not come onto the airbag from drip or spatter. The only two possibilities raised by the evidence were direct contact with the appellant’s bleeding face or a secondary transfer from a bloodied hand. Those were the only explanations for it.

Fourthly, that the bloodstain was extensive in its spread on parts of the airbag that would not be exposed except when the airbag was fully deflated. Fifthly, that whoever was driving the vehicle was wearing a seatbelt. Sixthly, that the seatbelt pretensioner would have pulled the driver back into the seat tightly at the same time that the airbag fired and would have remained locked in that position. We rest on those matters.

There was other evidence that is relevant to the consideration and we mention in that respect, for instance, the fact that there is evidence that when Mr Hough – one of the first to arrive on the scene – arrived, he saw the appellant lying on the ground being cradled in a sitting position – a semisitting position – by his father, that he had bright red blood on his face and that his father was touching his face.

That was the way in which he described the blood at the point in time of his arrival as is referred to in the judgments and we have referred to those matters; and that the father went back into the driver’s side of the vehicle subsequently. So he had blood on his hands. That was established by evidence from a Dr Lee, no relation, but a friend from the church group who arrived at the scene soon thereafter. He saw bloodstained hands. There was evidence from the mother, Ms Hsu, to say that she saw blood on her husband’s hands. There were, finally, photographs tendered on a reopening of the case that show – comfortably after the event but still at the scene of the accident – the father with bloodstained hands.

BELL J: What was the evidence of the father reentering the vehicle? Where did that come from?

MR DIEHM: That came from Ms Hsu. She spoke of her husband coming back into the vehicle at a time after the children had been removed and that he came in the driver’s side and sat in – well, came into the driver’s side to speak to her about her plight; for completeness, to say that she was herself trapped in the vehicle at that point in time and was not removed until the ambulance officers arrived.

NETTLE J: That was also in the father’s statement, was it not? He got back into the car to assist his wife?

MR DIEHM: I will have Ms Callaghan check for that, and I can give your Honour the reference to that in a moment. The other matter that we have referred to in our outline with respect to the respondent’s hypothesis about the lowering of the driver’s seat – and again this evidence is not one of those uncontroverted facts but it is a matter that is referred to.

One of the ambulance officers attending the accident was a Mr Bradbury, and Mr Bradbury was primarily responsible for attending upon Ms Hsu and his colleague, Mr Moss, attended upon the appellant. Mr Bradbury gave evidence, as was particularly traversed in more detail by the trial judge, that as part of the efforts to remove the mother from the car, they had lowered the passenger seat to its full extent; lowered the backrest of it in that sense.

Now, his Honour the trial judge canvassed this at pages 16 to 17 of the joint core appeal book. In paragraph [70] his Honour records, in about the middle of the paragraph, that:

In order to do so he recalled laying the passenger seat to its full extent. He may have laid down the driver’s seat to allow the use of the extrication jacket and backboard.

His Honour then went on to elaborate upon the evidence. His Honour said:

Bradbury was taken to a photograph of the front passenger seat. It indicated the seat was twisted. Bradbury did not believe the ambulance officers had twisted the seat in order to extricate the second defendant. His recollection was the seat was simply laid back. It may be if the mechanism was not working they had to physically pull back the seat to loosen it up to remove the second defendant. He accepted that if there had been an obstruction in undertaking that process by the position of the driver’s seat then they would have laid the driver’s seat back as shown in the photograph.

His Honour went on to say some more about that evidence in paragraph [72], including to say that:

The seat was dropped back flat to enable the extrication equipment to be used to remove the second defendant.

In the appellant’s book of further materials there are photographs that illustrate the position of that seat. The first of them is page 45. That is a view of the front passenger seat in the twisted position that it occupied after the accident. I will not take your Honours to the other photograph. It illustrates it from the other side of the vehicle, from the driver’s side. The point is clear enough, whereas, of course, the driver’s seat was seen in the police photographs to be in a position where it was lying flat and entering into the space occupied by the rear passenger seat. Your Honours might see that at page 61 of the appellant’s book.

The respondent’s case, of course, with respect to lowering of the back seat in this manner to allow the appellant to be moved back was one based entirely on inference. There was no direct evidence to say that that was the case. Yet here there was evidence that gave rise to – well, it was the only evidence offering an explanation, as it were, as to why the driver’s seat was laid back, that is to say, it had been done to allow the extrication of the mother from the vehicle. If that is removed from the equation as, in our submission, it would rightly be regarded then the appellant’s case is even stronger still.

But the other matters were more clearly established on the evidence and, in our submission, warranted the Court of Appeal concluding that the trial judge had fallen into error. It made error not only with respect to the assessment of the credibility of the appellant and his mother but with respect to key findings that then meant that his conclusions with respect to the proper inference to be drawn as to who was the driver really had to be set aside.

The court had to exercise its own judgment about those matters and the Court of Appeal did not do that. Furthermore that had it addressed the specific matters referred to by the appellant going to those circumstantial facts it would have reached a conclusion in favour of the appellant that he was the driver of the vehicle. There is a reference in the father’s statement, which is extracted in part in the respondent’s book of material. The relevant page would appear, where, recalling what, Justice Nettle, you have recalled, is page 24. At paragraph 81 he said:

I tried to get my wife out of the car but she said to leave her alone as she was suffering pain around her waist so I left her there.

NETTLE J: Thank you.

MR DIEHM: The evidence, though, with respect to the mother’s observations about the father is recorded by his Honour the trial judge at page 11 of the core appeal book, in paragraph [38]. His Honour recorded that Ms Hsu had:

said that after the first defendant had removed the children from the Tarago he came back into the driver’s side to see if she was alright. He then unsuccessfully tried to open her door from outside the vehicle.

Your Honours, unless there is anything further, those are our submissions.

KIEFEL CJ: Thank you, Mr Diehm.

MR DOUGLAS: I assume your Honours would hear from me first in relation to the appeal, but I am in your Honours’ hands.

KIEFEL CJ: Yes, very well.

MR DOUGLAS: Thank you, I intend for that to occur. On that last point, your Honours, our learned friends correctly took you to page 24 of the respondent’s bundle of material. That was the statement of Mr Lee which was tendered in evidence. Your Honours will recall from the reasons that Mr Lee, as I have described in the – who is one of the appellants - Mr Lee, the appellant’s father, did not give evidence at the trial. It was surprising that he did not, given that Ms Hsu did, but he did not give evidence.

We tendered, that is the respondent, tendered his statement and his Honour found, and there is no dispute for the purpose of this appeal, that Mr Lee’s statement, in a number of material respects, was found to be false. It was false in a less material respect - I say that in the relative sense - in that he asserted that he was assisted out of the car by Mr Hannan. Mr Hannan was accepted, the other driver, as an honest witness giving truthful evidence.

Mr Hannan, as our learned friend told you about 15 minutes ago, his evidence was that when he, Hannan, came to the car there was no one in the driver’s seat and in fact all of the occupants of the vehicle were in the vehicle itself. In a more material respect, and this was operative in the ultimate dispositive findings of the Court of Appeal as part of that reasoning, was that Mr Lee, in his statement, gave an untruthful account – I use the term advisedly – an untruthful account of the reason for blood being in the driver’s space of the vehicle.

He gave evidence in his statement - your Honours will find it conveniently at that last location of the respondent’s material. But at page 27 - and this is recounted in the reasons both of the trial judge and also Justice McMurdo, he says at paragraph 108:

I was definitely driving the car. Mason was not driving the car the time of the accident. Mason’s blood was not on the driver’s seat as he was not bleeding. That would be my blood as I was bleeding from my hands.

Now, the first statement is untrue on any view of the matter, and that is not the dispute on the appeal. Mason Lee, the appellant, was certainly bleeding and bleeding copiously – and that is part of the case to which we will come. But secondly, to suggest that he, Mr Lee, was bleeding, again is a falsity. There was medical evidence tendered before the court to the effect, in the form of hospital records, he was not bleeding from his hands at all.

KIEFEL CJ: How does that help us on the appeal?

MR DOUGLAS: Your Honours, I am merely indicating to your Honours in relation to the dispositive issues which were relied upon by the court. This issue was dealt with, that in fact the evidence of Mr Lee, by way of alternative hypothesis explanation was completely without substance. In fact, there was no evidence or explanation - this is part of our case which I will develop - forthcoming from any of the witnesses called on behalf of the appellant to explain how it was that this blood came to be on the airbag other than being posited

KIEFEL CJ: Mr Douglas, while you are on these preliminary matters, could I just clarify with you

MR DOUGLAS: Certainly.

KIEFEL CJ: I take it that you have spoken to Mr GrantTaylor and Ms Hewson about the order of argument.

MR DOUGLAS: Yes.

KIEFEL CJ: So, you do not wish them to put their submissions before you deal with

MR DOUGLAS: No, I do not require that, your Honours.

KIEFEL CJ: Are you going to ask for a right of reply to them after they speak?

MR DOUGLAS: Yes.

KIEFEL CJ: So, you speak twice then?

MR DOUGLAS: Well, your Honour

KIEFEL CJ: That does not seem terribly efficient, does it?

MR DOUGLAS: Your Honour, the indication I have received is that it is the submissions from my learned friends will be very brief since they adopt the submissions of our learned friends.

KIEFEL CJ: Well, then, perhaps we should hear them.

MR DOUGLAS: Thank you. Your Honours, before I sit down, we have provided to the bailiff copies of our oral outline of argument as well.

KIEFEL CJ: Yes. Yes, thank you, Mr Douglas. Mr GrantTaylor or Ms Hewson.

MR GRANTTAYLOR: Your Honours, our learned friend, Mr Diehm, has said everything that we would have wished to say in connection with the matters with which we are involved and we do not wish to add anything.

KIEFEL CJ: I take it that is for both parties.

MS HEWSON: Yes, your Honour.

KIEFEL CJ: Yes, all right. There you are, Mr Douglas.

MR DOUGLAS: Yes, thank you. Perhaps I anticipated matters incorrectly. If I can just complete that last point if I may for convenience, the portion of the reasons for judgment in the Court of Appeal of Justice McMurdo to which reference is made to that statement is at page 91 of the common book towards the foot of the page, paragraph [148] it goes over the page and that is where his Honour leads into the, in effect, competing hypotheses that were available to explain why it was that this blood was

EDELMAN J: Mr Douglas, it is an odd expression “bleeding from my hands”. Could the sentence be read or understood as meaning “my hands had blood on them”?

MR DOUGLAS: His Honour is making – no, your Honour, because his Honour is making reference to the portion of the evidence which I took you to a short time ago which is otherwise recorded

EDELMAN J: I am not talking about the expression used by Justice McMurdo. I am talking about the expression used in paragraph 108 of the statement the expression “bleeding from my hands”.

MR DOUGLAS: In my submission, it is not a plausible – with respect, a plausible method of explaining what Mr Lee was referring to, given that he contrasts the fact that his son was not bleeding – was not bleeding, but he was, and he says “from his hands”. I do not think I can take it much further than that, Justice Edelman. He makes the juxtaposition between himself and his son quite clear in that regard and it is a falsity. It is a frank falsity.

NETTLE J: Mr Douglas, was the father’s statement through an interpreter?

MR DOUGLAS: It was it was taken by an interpreter. It was taken on the evidence through an investigator retained by the respondent – a man, Mr Ostrofski, and he gives evidence to the effect that it was taken with the assistance of an interpreter.

NETTLE J: Yes. Thank you.

BELL J: At the scene the father told the first police officers attending that he was the driver.

MR DIEHM: That is correct.

BELL J: But the language difficulties were such that by the time Senior Constable Pepper who was in charge of the investigation came on the scene after the participants in the events had been removed from the scene, Constable Pepper was given to understand that the occupants of the Toyota had been uncooperative and not revealed who was the driver. Is that a fair view of the evidence?

MR DOUGLAS: That is correct and, for completeness, Justice Bell, can I say that that lack of cooperation, to the extent that it is relevant, continued because once the police

BELL J: Mr Douglas, just before you develop that further, I was not suggesting a lack of cooperation. The matter I was raising was that it was a language difficulty that led to the suggestion that the occupants of the Toyota had not been cooperative in circumstances in which the police officer present at the scene was told by the father that the father was the driver.

MR DOUGLAS: Yes, and to be fair, Justice Bell and members of the Court, we do not seek to make anything of that particular issue. I was briefly going to go on and say that that lack of cooperation though was – I am sorry, any suggestion of lack of cooperation was perpetuated in the sense that when it came to canvassing or being canvassed with the position of the – or the outcome of the DNA testing when that ensued - and it took a long time, an inexplicably long time to occur - each of Mr Lee and the appellant refused to give a statement. Now, perhaps people might be well advised in those circumstances to do that, but I am merely adding that that was the evidence as well.

BELL J: The appellant had earlier told the police that he was not the driver.

MR DOUGLAS: He had.

BELL J: Yes.

MR DOUGLAS: Your Honours, one of the plain difficulties – and I put that in an abstract sense – with the appeal at bar, or the appeals at bar, are that they are what I would describe as, even at this level of jurisprudence or judicature, fact rich, and that is one of the difficulties that we have to cope with. The preparation for this appeal, one sees in Fox v Percy a useful – the wellknown decision of Fox v Percy at paragraph 32 – it is in the joint book at page 125 – a useful statement to the effect that this Court’s function – and I merely make this as an observation – is one of strict appeal as opposed to the rehearing form of appeal which the Court of Appeal was obliged to undertake.

Suffice to say that strict appeal function, which is constitutional in origin, one sees, is one which explains the fact that the grounds of appeal are confined, as it were, or limited as they are, one, to adequacy of reasons and the other as to whether the Court of Appeal ought to have found that the trial judge misused his advantage as such. We would accept that the grounds do intersect to a very substantial degree necessarily. But if we could deal, as we do in the outline of oral argument, with the second ground first, your Honours, there were two

KIEFEL CJ: On what premise? On the basis that as Justice McMurdo approached it, which has certain – has the appellant’s case at a weakened level, or on the basis of there being an issue about Dr Grigg’s evidence?

MR DOUGLAS: It is the former rather than the latter, because I was going to take your Honours almost immediately to what appears in paragraphs [151] and [152] of the reasons. But can I get there in a particular way, if I might. There were two errors in the trial judge’s reasoning which our learned friends identified and I will come to those, but can I say immediately it is correct to say that in the course of rehearing undertaken in the Court of Appeal, the Court of Appeal in a number of respects, some respects, arrived at a different view from the trial judge.

Those matters though are not matters which, in our submission, are germane to a submission to the effect that the trial judge misused his advantage as such in hearing the matter. The two errors which were identified was one in respect - the first in respect of the observation to the effect that the appellant gave evidence through an interpreter. The second was the finding to the effect that the seatbelt was not utilised or worn by the driver of the vehicle.

BELL J: That latter error did involve a misconception of the way each party had conducted the matter before his Honour.

MR DOUGLAS: Unequivocally correct what you have said and that fits – we make it absolutely clear, the case was not put that way by the respondent to his Honour. The fact emerged, Justice Bell, from the evidence or the report of a neurosurgeon, Dr Weidmann, who, as a result of examining the material, formed a view that it was more likely than not that that was the case.

BELL J: Just coming back to the question of the trial judge’s advantage and the Court of Appeal’s recognition of that, there are two aspects to it, are there not? In paragraph [152] when Justice McMurdo says that it has not been demonstrated that his Honour misused his advantage, that might be saying no more than despite the fact that there was the memory lapse about the use of the interpreter one would not likely conclude that an overall impression that the trial judge had that the witnesses were not credible or reliable was to be put to one side. That is one aspect of advantage.

But the other aspect of advantage, as it is conventionally understood, is the appellate court’s recognition that the evidence has unfolded over a longer period of time and the trial judge has had the opportunity to see the whole picture emerge and reflect upon it. In circumstances in which the trial judge undoubtedly has misconceived the entire basis of the case being laid out before him there could be no question of having regard to his advantage in that respect, could there?

MR DOUGLAS: Can I say several things about that because these are matters to which I was going to come to in any event. The first is the errors, as I have identified them, including the one your Honours have just raised with me, are what we would describe as discrete errors. Undoubtedly it is the case that the misconception ground concerning the seatbelt was the more serious of the two, and if I can continue to deal with that.

The Court of Appeal immediately identified that. It was not hard because it was conceded in the outlines of argument. That was part and parcel of and undoubtedly resulted in the rehearing undertaken by his Honour, concluding, as his Honour did, short of the airbag or DNA evidence that it was more likely than not but for that evidence that the appellant was not the driver of the vehicle.

His Honour rightly dealt with the matter that way. So far as the other error is concerned which we would submit in truth was a discrete error, it was made in this context. Each of the appellant and Ms Hsu – remembering Mr Lee did not give evidence – each of them is, can I say of Taiwanese – I am not sure if they are Taiwanese nationals but certainly of Taiwanese origin. They had been living in Australia, on the evidence which was led and recorded in the judgment for about five or six years before the accident and, suffice it to say, relevantly, in respect of the appellant, English was not the first language.

So, yes, his Honour made a mistake about that issue. Only Ms Hsu gave evidence with the assistance of an interpreter, but it was undoubtedly the case, and his Honour noted in his reasons, that they were persons who did harbour a different language – if I can describe it as their first language. His Honour was correct to that extent and properly, as he recorded, took that into account. Yes, he made a mistake in relation to recording that the appellant gave evidence with the assistance of an interpreter but, in our respectful submission, the court properly dealt with that issue and it dealt with it – and I will take you to the passages now.

Before I take you to paragraph [152] of the reasons, the Court of Appeal recorded correctly, we would submit, in giving itself directions in the disposition of the appeal before them. It appears at page 87 of the common appeal book commencing at paragraph [120] of the reasons of the Court of Appeal.

The Court refers obviously to the common or recent statement of this Court in Robinson Helicopter v McDermott and then goes on to record – again, correctly, we would submit and it is not suggested to the contrary in terms of legal direction – in paragraph [121] where reference to Fox v Percy as to what the duty of the court was and correctly quotes from Fox v Percy in that regard. That is relevant because it feeds into the dispositive provisions of the reasons later at paragraph [152], to which I will come.

At paragraph [127] on the next page, page 85 of the record, Justice McMurdo on behalf of the Court of Appeal then gives consideration to that issue by reference to the error which I have identified, namely, use of the interpreter and in our submission does so in a way which recognises not only the mistake made but the proper way of dealing with it. Again, I emphasise that the mistake or error did not go to Ms Hsu, only to the appellant. His Honour says, as your Honours can see:

The matters raised by the appellant’s submissions, in total, do not justify a disregard of the trial judge’s impression of the credibility of each of these witnesses.

His Honour makes observations about “demeanour”:

Nevertheless a judge’s adverse impression of a witness from the way in which he or she has given evidence may be fairly based –

Your Honours, this was – as is apparent to your Honours having read the record – a trial which went for some time, involved a raft of witnesses giving a vast body of evidence in respect of what was only the remaining issue for trial disposition, namely, who was the identity of the driver of this vehicle. It was a case in which, the errors removed, was stock standard in terms of the adjuration of this Court in Fox v Percy and other cases like it, that due regard should be paid to the impression and findings of the trial judge in terms of matters going to, if I can describe it broadly, credibility of witnesses.

Justice Boddice did have the opportunity to listen to all the evidence. Yes, he made two errors – discrete errors, we would submit – but that did not entail, we would submit, a circumstance in which, in effect, as our learned friends seem to submit, as we interpret their submissions, that that serves – or ought serve to vitiate any weight whatsoever being attributed to his findings in relation to demeanour.

Ms Hsu and the appellant did not give evidence in a vacuum. They gave evidence in the context of what was – as I will come to – a violent motor vehicle accident in which each was injured but in the context of a trial in which there was much other evidence being led, including by way of a statement from Mr Lee as to the relevant circumstances which occurred.

So any trial judge in those circumstances would be very alert, ought be alert to the need to examine the evidence which is given where there is a dispute of credit in respect of those witnesses and form an impression, at the very least, in relation to the demeanour of those witnesses. That is what his Honour did.

Now, your Honours, when it comes to paragraph [152] then, page 92 of the common appeal book, one cannot or one ought not, we would submit, ignore in a consideration of what his Honour Justice McMurdo was communicating in that paragraph what has gone in the paragraphs before. His Honour has in the preceding three paragraphs considered the competing hypotheses as to a deposition of the – or source of deposition of the blood on the airbag. He, in paragraph [151], then, “Like the trial judge”, he says:

Like the trial judge, I find the respondent’s argument about the significance of the DNA evidence as persuasive.

That is his Honour finding it persuasive, not that he is adopting

BELL J: His Honour finds it persuasive, but does not proceed to a statement of his own conclusion as to whether, on balance, the evidence established that the appellant was the driver of the vehicle. Rather, his Honour returns to a consideration of whether the trial judge has been shown to have erred in coming to that conclusion.

MR DOUGLAS: In my respectful submission, that is not a proper construction of paragraphs [151] and [152]. His Honour has expressed, as I was about to say, your Honours, in paragraph [151], your Honours have observed that in his Honour’s view, it is plainly his Honour’s view, the appellant’s case overall “was substantially weaker” he says, because of that DNA evidence. That is the view he harbours and expresses. He expresses that, as well as I have just read to your Honours, saying that he finds the DNA evidence “persuasive”.

NETTLE J: The trouble with that is he fails to deal altogether with Dr Grigg’s evidence – and the fact that the seatbelt was done up and that the pretensioners are taken to have fired locking the occupant back into the seat and it could not have put out enough blood in the time that he is sitting there to get onto the back of the bag as we have been demonstrated.

MR DOUGLAS: Your Honours, can I deal with that, please?

NETTLE J: Certainly.

MR DOUGLAS: If I may deal with this point first. At paragraph [152] then, in the next paragraph, his Honour reverses or reiterates, in effect, what he has already observed as to the task which the Court of Appeal is undertaking. He says:

The task of this court is to rehear the case, but not without regard to the decision of the trial judge.

Then he, with respect, in our submission, having expressed his view as to the case in the preceding paragraph, reiterates the observation, in effect, which his Honour has made earlier in the paragraph to which I took you, paragraph [127] on page 88, to the effect that there were limitations in the way in which the trial judge could make of the way in which the appellant and her mother gave their evidence.

BELL J: But all that serves to do is to put the evidence of the appellant and the mother to one side. If you look at Justice McMurdo’s careful analysis of the facts up to and including paragraph [143], his Honour’s reason for concluding up to that point that it was much more likely that the appellant was not the driver is not dependent upon an acceptance contrary to the trial judge of the appellant’s evidence or the mother’s evidence. On this circumstantial case his Honour concludes that the likelihood is as he states it at paragraph [143].

Where do we find any consideration by his Honour of how the DNA analysis leads to a consideration that the trial judge’s decision, namely that the appellant was the driver, was not contrary to compelling inferences, having regard to his reasoning to paragraph [143] and a consideration that the trial judge was not required to make of how the blood could have been where it was located, including near the boss of the driving wheel?

MR DOUGLAS: Yes. If I have understood, Justice Bell, a lengthy question, carefully, correctly, it is correct to say that because of the trial judge’s disposition of the case by reference to the seatbelt, it really was not necessary for there to be any particular basis in terms of strength of evidence in relation to the DNA evidence, although he does make findings in respect of it.

When his Honour, that is his Honour Justice McMurdo in the Court of Appeal, up to paragraph [143] arrives at the view he does as to the strength of the evidence short of DNA evidence, he is doing so in the course of rehearing. He is doing so in the course of – I should say and in doing so is doing so in a way which entails divorcing himself, at least on the face of paragraph [143], from the impression of the trial judge of the witnesses, the appellant and Ms Hsu.

But in then dealing with the DNA evidence and expressing the view he does, in our submission, at paragraph [151], at [152] he is bringing to book as an additional consideration, not a primary consideration, but an additional consideration, the fact of the impression formed by the trial judge as to the credibility of Ms Hsu and the appellant.

It is not necessarily the matter which brings it across the line, but it is certainly a consideration which he expresses as one which is operative by way of some weight, some relative weight, in his final conclusion. But it is not a case of, we would submit, and it would involve a misconstruction of paragraph [152], to say his Honour Justice McMurdo on behalf of the Court of Appeal really could not decide the matter, goes to the trial judge’s conclusion and arrives at that.

He has arrived at his own conclusion, but augments that conclusion with the reference to the fact that the trial judge correctly, he has already found, formed an adverse impression of the evidence of Ms Hsu and the appellant.

EDELMAN J: Mr Douglas, do you accept that the credibility findings by the trial judge were not or could not be independent of the circumstantial evidence, so that the credibility findings could not be independent of the conclusions as to whether the driver was wearing a seatbelt, the evidence about the tensioners on the seatbelt, and so on? The stronger the circumstantial evidence the more likely it is that credibility findings would be enhanced.

MR DOUGLAS: Certainly, Justice Edelman, the circumstantial evidence is relevant to the credibility findings, but the credibility findings were that his Honour formed an adverse impression of the demeanour of those witnesses and the consequence of that, in response to your Honour’s question is this, in our submission, that that finding of adverse demeanour is one which diminishes the weight of the evidence of those persons in the disposition of the ultimate issue for the court.

EDELMAN J: But had a different conclusion been reached on the circumstantial matters, such as the wearing of the seatbelt or the tensioners and so on

MR DOUGLAS: By his Honour?

EDELMAN J: that could very well have affected his conclusions about credibility.

MR DOUGLAS: Well, it may have done so, but that is not what his Honour expressed. His Honour expressed the matter – I am sorry if I am repeating myself; I apologise - his Honour expressed the matter such that he found the two witnesses identified – the appellant and Ms Hsu – as evasive witnesses having a poor demeanour. So he did not consider – that is, the consequence of that is he did not consider them to be reliable sources to inform the ultimate findings. His finding was that one should look elsewhere in order for findings to be made in that regard.

Your Honours, that is, with respect, we would submit, the gravamen of the methodology which was utilised by Justice McMurdo in the rehearing. He canvassed the medical evidence. He canvassed all the other evidence. He placed principal regard, as our learned friends said, upon the time for Mr Hannan to get to the car and on the respondent’s case, the appellant to be withdrawn into the backseat.

Those were the matters which, with respect, informed his view upon rehearing in terms of the ultimate findings. Yes, they are circumstantial matters. They form the basis of the findings which he made. But we would submit it does not detract in any way from the trial judge’s – as trial judge’s impression - of the evidence given by the appellant and Ms Hsu. In fact, it contrasts

EDELMAN J: That is what I am really trying to explore with you. If, for example, the trial judge had been satisfied that there was an extremely strong circumstantial case that the father was driving the car, that must have, or must influence an assessment of credibility of demeanour because it is one of the prisms through which demeanour would be examined, is it not?

MR DOUGLAS: It would be wrong for me to say it would not be – in that hypothetical scenario it would have to be a factor which would inform that. But, your Honour – I am sorry if I am repeating myself – his Honour expressed his finding in that regard by reference to the manner in which they gave their evidence and, in my submission, that diminished them as likely sources of the truth - or the facts, I should say

BELL J: But to take up Justice Edelman’s point, in relation to Ms Hsu, the trial judge did give an explanation in one particular of why he rejected her evidence.

MR DOUGLAS: Yes.

BELL J: And that was because he regarded as inherently improbable that the father would have got out of the driver’s side door quickly

MR DOUGLAS: Or he did so.

BELL J: Or that he did so. That is at paragraph [194] of the trial judge’s reasons.

MR DOUGLAS: Yes.

BELL J: Now, what is the basis for that conclusion that it was inherently improbable that the father got out of the driver’s door?

MR DOUGLAS: I think it is fair to say that his Honour the trial judge identified that by reference to the evidence given – I should say the evidence to be sourced that was sourced, in the statement of Mr Lee to the effect that he had real difficulty getting out of his seatbelt or could have – could not get out of his seatbelt, I should say.

BELL J: So his Honour made an adverse finding about the wife’s evidence based on the likelihood of that being true if one had regard to the contents of the statement that the father made. But his Honour’s own finding was that whoever was driving was not wearing the seatbelt, which would hardly make it inherently implausible for whoever was driving to exit the car quickly.

MR DOUGLAS: Yes, that is correct.

EDELMAN J: Well, once that is taken into account then it may be that conclusions of evasiveness or demeanour in relation to evidence would be viewed through a slightly different prism.

MR DOUGLAS: Yes. Justice Edelman and members of the Court, there were a number of instances, and we have cited some of these in our written submissions, by reference to the crossexamination of each of those witnesses that is the appellant and Ms Hsu - which did point up real difficulty with their evidence.

I realise that his Honour did not identify these matters. We accept that that is the case, but can I give you the examples that we have in the outline. They are but examples. In the case of Ms Hsu, she was taxed heavily in crossexamination concerning her inability to understand the English language in circumstances whereby she has purported to swear affidavits in which she sought employment which would necessarily have entailed her being able to understand the English language, matters which she very unsatisfactorily explained.

In the case of the appellant he was taxed, among other things, in crossexamination concerning his having pleaded the case in such a way at an earlier time, that is the case which the Court is hearing now, in such a way where he pleaded in the alternative that, in fact, he was not driving the car and he could give no explanation of that. So there were, albeit not referred to expressly on the face of the trial judge’s reasons, there were real matters which were identified, which we would submit founded why it would be that the evasiveness was properly betrayed by their evidence. We have actually included in our bundle those two references to which I have given you.

BELL J: As far as the pleading point went that was a defensive pleading in relation to – and why the mother was joined, was it not, understanding that the RACQ would contend that the appellant was not the driver?

MR DOUGLAS: Certainly it was defensive in the sense which you have identified was in the statement of claim obviously. But it was defensive I accept that it was defensive in the sense that it necessarily was pleaded at a time when the identity – well, the driver identity was in issue, Justice Bell. So, it was defensive to that extent.

But one would have – the issue we raised below before his Honour was, among other things, he could give no explanation for it whatsoever, no sense of any explaining why it was that he gave those instructions, why it would be that he would even accept that that was the case. Yes, it was, I suppose, could be characterised as defensive, but that was not the reason given, Justice Bell, as to why it was given. No reason was given whatsoever.

BELL J: The pleading was drawn by a solicitor, was it?

MR DOUGLAS: It was drawn by counsel. It had my learned friend Mr Diehm’s name on it but I accept that Mr Diehm did not draw the pleading. That was accepted at trial - can I make that absolutely clear. But it had counsel’s name, as I recall it had two counsels’ names on it, as I recall. I will stand corrected if that is not the case.

I wanted to come, if I could, your Honours, to the first ground if I may. Justice Nettle was pressing us about this point earlier. We accept, as we do in the outline of argument, that the law is as this Court articulated in DL v The Queen and in addition to the passages which your Honours referred to, your Honour Justice Nettle also dealt with these issues, I think, at paragraphs [130] and [131] in a similar way to the other members of the Court, albeit like Justice Bell, you dissented in the ultimate result in that case.

The majority in DL, in effect, and this is the language of the majority, said that what was required of a trial or appellate court was to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at – why the resolution was arrived at that is the Court’s resolution was arrived at.

Your Honours, undoubtedly in many cases that come before the appellate courts, hindsight would yield that despite lengthy reasons, and for the reasons in this case, a court could have descended to even greater detail in exposing treatment of the critical arguments. But, in our submission, given the detail with which the court, the appellate court descended on this occasion, the reasons properly construed did comply with this Court’s adjuration.

Can I deal with the matter in this way? Here, the critical overarching clutch of facts which were and are not in dispute were threefold. The first was that the appellant’s blood was on the airbag. The second was that his facial injuries would have produced copious blood flow. These matters are not in dispute. The third was, at least as found by the Court of Appeal, these injuries were not inconsistent with him being struck by the airbag. Just pausing in that regard, each of – I should say the Court of Appeal by Justice McMurdo in the reasons referred to the medical evidence in that regard and said that

KIEFEL CJ: That is Professor Monsour.

MR DOUGLAS: Was inconsistent.

BELL J: Not inconsistent, but I think Profession Monsour had difficulty explaining the chipped tooth.

MR DOUGLAS: It was only in one respect and he explained that by reference to he said that there were glasses worn or a hand that went up to the face that that would explain it and it was established or elicited in evidence, Justice Bell, that the appellant was a wearer of glasses.

BELL J: I see.

KIEFEL CJ: Professor Monsour’s evidence was that the injuries were consistent with a possibility that they were caused by an airbag rather than a probability.

MR DOUGLAS: In my submission, his evidence was stronger than that.

KIEFEL CJ: That is not what the Court of Appeal says at paragraph [138].

MR DOUGLAS: That is why I was very careful to say, your Honour, that the Court of Appeal found that it was not inconsistent. The trial judge went further and expressed the view that Professor Monsour’s evidence was slightly stronger than that. I am relying upon what the Court of Appeal said.

KIEFEL CJ: Was it put to Professor Monsour about the pretensioning on the seatbelt, about the effect that would have had in relation to the airbag and the injuries?

MR DOUGLAS: No.

KIEFEL CJ: So arguably the Professor is proceeding upon the basis that a person is going to have full facial impact with the airbag.

MR DOUGLAS: Full facial impact in the sense of being struck with an airbag and the pretensioner, your Honour, does not of itself preclude that occurring. It is just an adjunct. Again, I will come to that if I may. In our submission, having established those three matters, on the basis of the adduced evidence an explanation was obviously required as to how the blood came to be on the airbag. This raises the issue of both onus and evidentiary onus to which, I think, the Chief Justice made reference earlier in the hearing of the appeal.

KIEFEL CJ: Who was to explain it?

MR DOUGLAS: There were two candidate hypotheses. One was that the blood came from the driver, that being the appellant, and the other was one of indirect transfer by, if I can call it subsequent means. There was no explanation whatsoever forthcoming, in our submission, from either the

KIEFEL CJ: Is that the way you approach it or do you approach it in this way? The plaintiff had given evidence that he was not the driver. That was consistent with other evidence and what was said at the scene. He was not observed in the driver’s position at the scene. There were evident physical difficulties in anyone moving him. So that led Justice McMurdo at paragraph [143] to say well, at this point really you would have to say that the probabilities are that he was not in the driver’s seat. So who is it that was then going to use the blood, the DNA evidence and the blood smear evidence to try to rebut this? Is that not your client?

MR DOUGLAS: Your Honour, it is in the first instance but it is a matter then of there being, as the case is so shifting – the persuasive onus lies with my side.

KIEFEL CJ: So how was it discharged?

MR DOUGLAS: Because, in the manner which I have indicated, in my submission one starts with the three propositions I have made. One finds a situation whereby the evidence before the court is it is the appellant’s blood which is on the airbag. How did it get there? What is the explanation for that? Our submission - I have reached the point of making the submission - there was no explanation forthcoming from the appellant. There was no explanation forthcoming from Ms Hsu. There was an explanation forthcoming not from a witness, the statement of Mr Lee, the least injured occupant of the vehicle, and that was false. Where is it that this blood came from? There was a postulation which was, and it was only that, which was put on behalf of the appellant and that was to the effect that Mr Lee must have entered the vehicle and wiped his hands on the airbag.

KIEFEL CJ: Well, is that not the scenario that you have to show on balance - you have to make out on balance for the onus to shift back?

MR DOUGLAS: Your Honour, it is a matter which can shift the onus back. What we point to is the fact that there was no evidence to that effect. There was no evidence to the effect that any time he felt the need to – I should say that he did wipe his hands or felt the need to wipe his hands on the

KIEFEL CJ: But he had blood on his hands when he was present in the driver’s position.

MR DOUGLAS: Well, there was evidence from Ms Hsu that he came to the driver’s position at one point. That was the extent of it. Mr Lee did say in his statement, and you were taken to this earlier on, to the effect that he attended his wife. He did not say he did it through the driver’s side.

KIEFEL CJ: In any event, we are not conducting a rehearing. But the point which Justice McMurdo appears to reach, when his Honour considers this evidence, is that it is unsatisfactory. You really cannot determine the - this question is raised about where the blood came from and how it could have got there. But in the end, it is not resolved. Would that not normally mean that your client had not satisfied the evidentiary onus of showing why the plaintiff’s version of events should not be accepted?

MR DOUGLAS: Your Honour, if that were so, the answer is probably yes. But that is not what Justice McMurdo finds.

KIEFEL CJ: Justice McMurdo then went to the primary judge’s findings on credibility to determine what his Honour called finely balanced. But it might have been simply that your client had not been able to rebut the inferences available from the plaintiff’s case.

MR DOUGLAS: Your Honours, with respect, that is not how Justice McMurdo puts the matter in his reasons. At paragraph [150] of his reasons at page 92 of the common appeal book, after referring in paragraph [149] to, in effect, the case that I have just put to that point, he says:

The same cannot be said of the alternative hypothesis, namely that the appellant’s blood was transferred to the airbag on the hands of the appellant’s father. There is nothing about the bloodstains that suggests such a probability . . . It is also possible much or all of the blood –

was not sampled. But the question for the trial judge, and therefore the court on rehearing, was which of the two hypotheses was more probable? So, with respect, your Honours, his Honour, on behalf of the Court of Appeal, does pose the competing hypotheses, including that it was deposited subsequently. As he expresses in the next paragraph, he finds that is not a hypothesis, that is the alternative hypothesis, which he accepts as likely.

KIEFEL CJ: That might be a convenient time, Mr Douglas.

MR DOUGLAS: Thank you.

KIEFEL CJ: The Court will adjourn until 2.15.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Douglas.

MR DOUGLAS: If it please the Court. Your Honours, in our submission, the treatment given by the appellate court to the appellant’s argument in paragraphs [146] and [149] of the appellate court’s reasons, [146], your Honours, being at page 91 of the common appeal book, and [149] being at 92 of that book, in particular the second and following sentences of the latter paragraph, in our submission, were apt to have regard to address the argument that the appellant put.

We say that for two related reasons. The first was the manner in which the argument was put to the court and the second was the substance of the two reports of Dr Grigg which were relied upon. Now, if I can deal with each of those in no particular order - in relation to the matter concerning the retracting seatbelts, although I will come to it in Dr Grigg’s report, the argument as it was put to the court appears in our learned friends’ – that is, the appellant’s bundle of additional material at page 17 of that bundle. At the base of page 16 at about line 43, Justice of Appeal Fraser asked Mr Diehm on behalf of appellant to:

give a very brief statement of the significance of both the pretensioner and the inertia reel seatbelts in your case.

Mr Diehm answers that at the top of the next page. I do not want to read the entirety of it out to you other than to point out relevant parts once your Honours have read that. In our submission, the relevant parts are these. There is the qualification that:

short of the movement that then might be allowed from his –

that is, the appellant’s:

neck towards the airbag or the airbag moving towards him –

and the second relevant part is:

coming in contact with a deflated airbag. Of course, the position of the deflated airbag is too remote from him.

That being the argument that was put on behalf of the appellant, in our submission, it completely mischaracterises the evidence that was forthcoming from its own witness, Dr Grigg, in that regard.

Now, our learned friends have taken you to Dr Grigg’s report in the respondent’s bundle for a particular purpose. We take you to that report for another purpose. The relevant report, being the second of Dr Grigg’s reports, commences at page 43 of the respondent’s bundle. It is a report dated 14 October 2016, exhibit 4 before his Honour. Your Honours, when we originally gave this to you, we gave it to you with black and white photographs which was particularly unhelpful but we remedied that yesterday and I hope your Honours have those. If your Honours go then to page 44 in the text of the report at about line 31, Dr Grigg says that:

Photos 7 to 10 are views of the deployed airbag that were taken from different directions before it collapsed completely.

Your Honours, just pausing there, in our written submissions we referred to the concept of this airbag being just that – a bag rather than a balloon, a bag being something that, when blown up, deflates whereas a balloon in effect deflates very quickly. But that metaphor or those metaphors are of importance because our learned friends’ submissions on behalf of the appellant before the Court of Appeal and now proceed on the footing that in fact this airbag after deployment immediately, or almost immediately I should say, deflates.

The report of Dr Grigg, which was not, as his Honour records in the judgment, challenged denotes otherwise. The photographs, 7 to 10, to which Dr Grigg refers, again, are taken at various angles following deployment and what they demonstrate, in our submission, perhaps unremarkably, is that the bag deflates other than in a momentary way quite to the contrary. It deflates as any bag would. We are not speaking about a scenario, therefore, as was predicated or assumed for the purposes of submission before the Court of Appeal or even now that there is

NETTLE J: I am sorry, where are you getting this slow rate of deflation from in the documents?

MR DOUGLAS: I am drawing from the fact that Dr Grigg takes photographs of the bag after it has been deployed and he depicts that in the various photographs from photographs 7 to 10 which appear on those subsequent pages.

NETTLE J: He said it in his report that it goes down in a fifth of a second – in his original report which is in the appellant’s supplementary book of further materials at page 72.

MR DOUGLAS: He does, in fact, say that. What he said was that the rate of deflation - it is misstated on several occasions, with respect. I do not say it critically about our learned friends. He speaks of the rate of deflation being, I think, .2 of a second.

NETTLE J: Yes.

MR DOUGLAS: But, in fact, when he comes to – that was in his first report.

NETTLE J: Yes.

MR DOUGLAS: When it came to his second report, he actually undertook – for want of a better description – a reconstruction of events by reference to a like airbag, which we accepted, took no objection to. But, what that demonstrated was that it, following deployment, responded in the way in which he depicts in his photographs.

NETTLE J: Does he give oral evidence about these photographs?

MR DOUGLAS: He does not give oral evidence about that. It is contained wholly within his report, Justice Nettle.

EDELMAN J: So, we do not know whether photos 7 to 10 – at what time after deployment the photograph was taken.

MR DOUGLAS: Justice Edelman, it is correct to say that.

EDELMAN J: It could have been almost instantaneous.

MR DOUGLAS: He does not say that in his report. He says that the photographs were taken after deployment.

NETTLE J: It does not say that he is saying to the contrary what was in his first report just, presumably, that this is a pictorial representation of what he had deposed to.

MR DOUGLAS: It is a pictorial representation of the outcome of the reconstruction using a similar airbag.

NETTLE J: I take your point. If these are sort of slowmo pictures showing, I think, time exposure then it is graphic. If they are taken instantaneously, it means nothing.

BELL J: Mr Douglas, even if the mechanism for deflation is, as you would have us understand it, unlike a balloon the deflation is not instantaneous, accepting that it still seems to me not to deal with the nub of Mr Diehm’s submission which is how, if you accept the evidence of the preseat tensioners and you accept that the driver was secured by the seatbelt, the bleeding face could have come into contact with the boss of the steering wheel and it is quite clear that there is blood under the flange on the, by then, plainly deflated airbag.

MR DOUGLAS: Yes.

BELL J: The only explanation for that would seem to be inconsistent with a relatively fleeting interaction between a bleeding face and the inflated bag.

MR DOUGLAS: Your Honours, can we say two things about that? The first point is this. When it comes to the issue of the – related issues, if I can say this – of the seatbelt retracting and the deployment of the bag, one should not proceed on the assumption as, with respect, perhaps, the question you asked does, that the combined effect of the retraction and the concomitant - that is the seatbelt - and the concomitant firing of the airbag results in the driver being, in effect, kept away from the airbag. There is no suggestion that that is the case.

Dr Grigg in his first report, to which Justice Nettle made reference a short time ago – which is in our learned friend’s supplementary book of further materials - at page 72 of that book, in the answer to question 1, under the heading “Questions and Answers”, describes the relevant deployment of the airbag. I hope I am not confusing this. He also refers to the operation of the – if you could bear with me, please – page 75 of that bundle under paragraph 6.

Why would the front seatbelts fail to retract?

The Tarago is equipped with pretensioners on the front seatbelts. They are activated by the airbag control module. When fired –

et cetera – I should not read it out to your Honours. So, your Honours, there was nothing about his evidence which suggested

BELL J: Mr Douglas, as I understood his evidence, it was that the airbag acts as a cushion and I inferred from that comes into contact with the face, likely of the driver.

MR DOUGLAS: And concomitantly, the retractors

BELL J: Yes. The matter that I am raising with you, Mr Douglas, is how, on the assumption that the driver was wearing the seatbelt and that the pretensioners activated, there might have been the sort of contact that would explain bloodstaining at the steering wheel boss under the flange other than on a view that it occurred after the bag was deflated.

MR DOUGLAS: Again, if I can deal with several aspects of the evidence which are responsive to your Honour’s question. The first is that there was evidence from Dr Grigg himself to which our learned friend took you to during his submissions to you which demonstrated that, having regard to the particular severity of this headon collision between these two vehicles, that the effect of that, Dr Grigg wrote, was that because of the angle of the collision the persons within the vehicle, including the driver, would in effect move to the left. That actually operates to accentuate the fact that the likely deposition of any blood, if there was blood from the driver, would be to the lefthand side of the centre of the airbag.

The second point in response to your Honour’s question is this. I have already mentioned the fact, and it was accepted by the trial judge and the Court of Appeal, to the effect that the character of the injuries which were suffered by the appellant were such as to be likely to produce quite copious amounts of blood. They were both dental injuries and also nasal injuries which apparently were of a kind suffered by this gentleman which would produce copious amounts of blood.

The third point related to that is this, and I was seeking to develop it by reference we took you to about the deflation of the airbag. We submit that that was likely to occur in a relatively short space of time and certainly we would say, if not immediately, then in a matter of seconds after the particular incident.

The fourth matter in response to your Honour’s question is this, that in addition to the other evidence that you were taken to in respect of the evidence of Dr Robertson, Dr Robertson as it transpires in fact in response to crossexamination spoke of the fact that the character of the material of which the airbag was made, namely, nylon, was of a kind which it was accepted by reference to certain leading articles I can take your Honours to at the moment – were of a kind which allowed the permeation of any blood that happened to be deposited onto that particular surface.

Now, your Honours, to the extent that one can discern it from the photographs of the airbag taken after the accident, there is quite a heavy deposition of bloodied area, if I can call it that, or staining, obviously bloodstaining, which occurs towards the right – I should say the lefthand side of the airbag, and we would submit that that evidence put to Dr Robertson in crossexamination and accepted by her by reference to learned articles, supports the fact of likely permeation of the bloodied material – I should say blood – which found its way onto the airbag, we submit, through that material and beyond the immediate place.

BELL J: Where do we get that evidence?

MR DOUGLAS: One can find it in the appellant’s bundle of material, commencing at the base of page 33, throughout the whole of page 34. You will see at the base of 33 over to 34 in crossexamination counsel put to Dr Robertson the content of a learned article and she said that she agreed with that statement. In the middle of the quoted paragraph which appears on page 34, at the top of page 34, about line 5:

Results of testing have shown that synthetic fabrics – in particular, 100 per cent polyester – can dramatically alter the physical appearance of a bloodstain.

So we would submit that, consistent with that, in evidence that was actually led by our learned friends but on a different topic, namely, the hand marking, that there is more than adequate support for the notion that blood finding its way, at least onto the lefthand side of the airbag, is consistent with that passing from the appellant’s face onto the airbag and permeating into the material, consistent with what the evidence was in that particular regard - and that includes to the lower side, if I can call it that, of the inflated or partly inflated airbag.

Insofar as concerns the blood which is also to be observed in the photographs to which our learned friends took you, on the righthand side, the driver’s side, in effect, of the airbag, we would submit that that is properly explained in two ways. The first way is this. Insofar as Dr Robertson’s evidence is concerned, our learned friends again were at pains to elicit from her that the endeavour that she was engaged in was – and this is the language which was accepted – an inexact science. Her opinion was that most likely it was the case that the bloodstaining found its way onto the surface due to – that is, the surface of the airbag – due to the immediate contact that there was or was likely to have been between the bloodied face and the airbag proper.

Now, as our learned friends are at pains to point out in their written submissions, and quite correctly, that was the effect of her evidence. We would submit – this is the first point – that insofar as blood existing on the righthand side or indeed perhaps any part of the airbag, the likelihood is that copious amounts of blood were of a kind which as the airbag deflated were likely to find their way still from the face, even if it be in free passage, onto the airbag itself.

Your Honours, there is a second point, and that is this. It is part of the case for the respondent, your Honours will recall, that the way or manner in which the appellant came to be in the rear compartment of the damaged vehicle was because he was drawn back by the father, Mr Lee. That endeavour is one which, in our submission, was in itself likely to spawn some movement of the face and head of the grossly disabled – he was, as your Honours said, paraplegic or quadriplegic by that time, or tetraplegic – as he was drawn back or before he was drawn back.

EDELMAN J: Was that case run at trial, that the blood got onto the airbag by the father dragging him back towards the back seat?

MR DOUGLAS: That was the case run at trial, unquestionably, Justice Edelman. In fact, that was the case that was

EDELMAN J: But in other words that the father was the reason for the son’s blood to get transferred onto the side of the airbag?

MR DOUGLAS: I am sorry, I misunderstood you, Justice Edelman. It was the case for the respondent at trial that the father drew the boy back into – sorry, the appellant back into the rear compartment and he did so by laying back the seat.

EDELMAN J: And that that caused the blood to get transferred onto the airbag?

MR DOUGLAS: I cannot say now to your Honours that that is an argument that was expressly put to the court below, or to the Court of Appeal, but by reference to the evidence which was before the court attempting to demonstrate that the evidence of Dr Robertson was not such that it was, as it were, given in the context of some exact science as to how these matters operate. The irony is our learned friend in his crossexamination of Dr Robertson exposed the fact not just of the inexactitude of the science, but that she in a number of respects was not necessarily a master of that science.

EDELMAN J: But this is a third theory now, is it? So this is a third theory that if the blood did not get onto the airbag by transference from the father’s hands or by direct contact at the time of the accident, it has got there in the process of the father moving the son from the front seat to the back seat?

MR DOUGLAS: We have already said to your Honours that that was always part of the case. I would not mind checking that if I could. I do not want to misrepresent the position. I might have my junior check on this. But the submissions below were quite extensive and they were certainly
directed towards the father going about the task of bringing the boy back and at that point in time blood had passed or was passing. I do not want to misrepresent the position, Justice Edelman, so I do not want to say anything more, but I will have that checked, if I may.

Justice Edelman – or I should say members of the Court – I am conscious of what your Honour made remark of by reference to this is the third hearing, but at the same time one has to have regard to the body of evidence as it was, and it was challenged by our learned friends on behalf of the appellant in the Court of Appeal as to how it was that blood came to find its way onto the airbag and that was really, with respect, an open question that the Court of Appeal had to tussle with, as it were, and form its own view on the rehearing that occurred, and that is by reference to the evidence I have just taken your Honours to.

BELL J: The view that the Court of Appeal formed at paragraph [146] was that one could not readily reject Dr Robertson’s explanation for how the blood could have come from the driver to the other parts of the airbag. So that is at its highest, is it?

MR DOUGLAS: No, in fact, your Honours – sorry, your Honour is quite properly referring to what appears I think in paragraph [146], and then at paragraph [149], second sentence, his Honour said:

That probability is not negated, in my view, by the particular locations on the airbag of the blood stains. If the appellant was in the driver’s seat, the bleeding would have continued after the split second in which the airbag had been fully inflated.

His Honour does not enlarge on that.

BELL J: That is the crux of the first ground?

MR DOUGLAS: Yes. But, in our submission, what his Honour is giving voice to there is that, having regard to the competing hypotheses which his Honour had identified, that hypothesis based on blood – I should say bleeding from the appellant ensuing after the initial inflation of the airbag, was a matter which was quite plausible. I am not sure I can put it any higher than that, with respect; it would be wrong for me to do so. Your Honours, we otherwise rely on our written submissions, unless there is some additional issue that I can assist the Court with.

KIEFEL CJ: Thank you, Mr Douglas. Mr Diehm, do you have anything in reply?

MR DIEHM: Your Honours, briefly in reply, before lunch Mr Douglas referred to and acknowledged two errors made by the trial judge, being the error with respect to the involvement of the interpreter in the appellant’s evidence, and the error as to whether or not the driver was wearing a seatbelt. Our submissions have identified that in fact there were four errors – those two, plus the error identified by the Court of Appeal made by the trial judge as to the degree of difficulty involved, and comparative degree of difficulty involved in removing the appellant to the rear seat by his father, as the respondent’s case posited. That finding was identified at paragraph [132] of the court’s reasons; and fourthly, the consistency of injury issue, that is to say, the trial judge had made a finding, relying upon Dr Weidmann, as well as his interpretation of Dr Monsour’s evidence in particular, that the injuries suffered by the appellant were proof themselves that he was the driver.

The Court of Appeal at paragraph [140] concluded its assessment of that by concluding that the evidence on the point did not prove either side’s case in that respect, that it was a neutral matter. So there were more than two errors that were identified.

One matter that Mr Douglas I do not think got back to, we can say that at the trial, there was a submission made by the respondent that the blood on the airbag in the positions it was in could be explained by virtue of the removal of the appellant by his father to the rear seat, that is to say that activating the lever to lower the backrest would have involved initially a forward movement of the appellant, propelling him, his face, into the airbag.

That was the submission that was made before the trial judge; it was not made in the Court of Appeal. Aside from anything else, it was unsupported by any evidence. What is more, it is contradicted by the operation of the seatbelt, which of course would have prevented any forward movement, regardless of what was done with the mechanism to lower the seat back. Those are the matters in reply.

Your Honours, in the event that the appeal was to be allowed and judgment was to follow for the appellant, there are a number of orders that were sought in the notice of appeal, including orders, for instance, about indemnity costs for the trial, standard costs for the appeal, and so forth. We have reduced those to a document that is agreed between the appellant and the respondent so that if that is the outcome the Court knows what orders the parties agree should be made in that respect. Can I hand up drafts of that document?

KIEFEL CJ: Yes, thank you.

MR DOUGLAS: We have been consulted about that.

KIEFEL CJ: Thank you, Mr Douglas.

MR DIEHM: There are 10 copies, thank you. Unless there was anything else, thank you, your Honours.

KIEFEL CJ: Yes, thank you, Mr Diehm. The Court reserves its decision in this matter and adjourns until 10.00 am tomorrow.

AT 2.46 PM THE MATTER WAS ADJOURNED