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Fox v Percy S88/2002 [ 2002] HCATrans 433  (11 September 2002)

Sydney No S88 of 2002

B e t w e e n -

BARBARA FOX

Appellant

and

MEGAN L. PERCY

Respondent

GLEESON CJ

McHUGH J

GUMMOW J

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 SEPTEMBER 2002 AT 2.30 PM

Copyright in the High Court of Australia

MR P. MENZIES, QC: If Your Honours please, I appear with my learned friend, MR C.R. BURGE, for the appellant. (instructed by Beston Macken McManis)

MR J.D. HISLOP, QC: May it please the Court, I appear with my learned friend, MR P.J. NOLAN, for the respondent. (instructed by Sparke Helmore)

GLEESON CJ: Yes, Mr Menzies.

MR MENZIES: Your Honour, this appeal arises out of a decision in the District Court of New South Wales wherein the appellant as plaintiff was successful. It was a claim for damages for personal injury and the major issue at the trial was on which side of the road was the respondent defendant's motor car at the time of a collision with the appellant plaintiff. As I said, the plaintiff was successful in the District Court and by majority failed in the Court of Appeal and it was in from the decision of the Court of Appeal which this appeal is brought. the error in the Court of Appeal's decision we identify, your Honours - - -

GUMMOW J: Have you not got a motion? Do you not have a motion?

MR MENZIES: I am sorry, your Honour, yes, I do, I apologise. It is a formal matter.

GLEESON CJ: Is that opposed, Mr Hislop?

MR HISLOP: No, your Honour.

GLEESON CJ: Yes, you have that leave.

MR MENZIES: Thank you, your Honour. The error that we identify in the Court of Appeal's decision can be found at page 366 of the appeal book in volume 2, the majority in that case consisting of Justices Beazley and Handley, with Justice Beazley providing the judgment with which Justice Handley agreed. At 366 at line 15, her Honour, having dealt with some expert evidence, continued and says this:

It follows that, in my opinion, the evidence of the respondent and Murdoch that the respondent was on the correct side of the road when the accident happened should not have been accepted by the trial judge. I have referred to the protection their evidence, would, in normal circumstances have under the Abalos principle.

which she refers to, and then at line 30 - - -

KIRBY J: You are surely not skipping those next words, "That protection is lost".

MR MENZIES: I did not intend to skip them, your Honour, but I merely did not wish to - - -

KIRBY J: They are at the heart of the case.

MR MENZIES: Yes, your Honour, I accept that. Then I shall not. The appellant's position obviously is that this was a decision based upon credit findings by the trial judge and in circumstances, unless the criteria established by Devries or Abalos is satisfied, the appellant must succeed and there was no warrant for the Court of Appeal to interfere. The issue out of which the Court of Appeal's interference arose was simply this - - -

KIRBY J: I interrupted you, I am sorry I did that, if you were wanting to read further from Justice Beazley's reasons.

MR MENZIES: Well, perhaps I should, your Honour, because it does set it out specifically where the error appears. Justice Beazley goes on:

In my opinion, Sergeant Volf's evidence of the skid marks on the correct side of the road falls into that category.

That is to say, evidence incontrovertibly proved or established inconsistent with the finding of the trial judge.

I add in passing, that a reading of the transcript of Murdoch's evidence presents an unconvincing picture. That would not have been sufficient to displace his Honour's acceptance of it. However, with respect to his Honour, it is not possible to rationalise his Honour's acceptance of Murdoch's evidence when it is in direct conflict with Sergeant Volf's. There is nothing in Tindall's report which stood independently of the evidence as it should have been found.

Now, the "Murdoch" referred to was a witness called by the appellant who was riding with the appellant on another horse when the collision occurred between the appellant's horse and a Kombi van driven by the respondent. Sergeant Volf, who was the police officer called to the scene, found - and his Honour accepted - that at the scene of the collision there were 10 metres of skid marks all entirely upon the respondent's correct side of the road. In other words - and there is no issue about this - that from the time when the vehicle driven by the respondent commenced skidding it was on its correct side of the road.

Mr Murdoch, the appellant's witness and the appellant herself, both said that at the time of the collision they were each on their correct side of the road, and the Kombi van driven by the respondent was on its incorrect side of the road. There was no evidence of an objective nature establishing where the point of impact occurred. The only evidence that the point of impact was on the respondent's correct side of the road was the respondent herself and that arose from the respondent saying, "As I saw the horse ridden by the appellant I braked and skidded and then an impact occurred" but there was no objective evidence connecting the skid marks with the impact.

KIRBY J: Yes, but the evidence of the police officer was that the skid marks were entirely on the Kombi's correct side of the road.

MR MENZIES: Yes, your Honour.

KIRBY J: The skid marks would start where the brakes were applied in order to try to stop, one would think.

MR MENZIES: Certainly they would start from the point where the wheels stopped turning, which would obviously be shortly after the brakes were applied. We accept that, your Honour.

KIRBY J: And they were wholly on the correct side of the road and therefore the inference that the Court of Appeal was invited to accept was that there was objective evidence; that the objective evidence recorded in the contemporaneous record of the police officer was that the impact must have happened on the Kombi's correct side of the road because of the fact that the skid marks began and stopped on that side of the road.

MR MENZIES: That was indeed the Court of Appeal's finding.

KIRBY J: It sounds like objective evidence to me.

MR MENZIES: Your Honour, it is objective evidence that whilst the vehicle was skidding, it was on its correct side of the road. It is no evidence at all of where the vehicle was at the point of the collision.

KIRBY J: But that is just unrealistic because the vehicle came around a corner and it is not going to be applying its brakes enough to create skid marks and then release the brakes so it can go anywhere it likes; it is going to apply the brakes until it stops.

MR MENZIES: With respect, your Honour, whilst the braking, once commenced would be likely to continue - and we obviously take no issue about that - the issue is whether the braking occurred resulting in the skidding before, during or after the impact. We accept that if the braking inducing skidding occurred before impact - - -

KIRBY J: I am just talking about normal human reactions where the brakes would be applied in order to try to stop in this frightening and sudden emergency. It is not human then to take your foot off the brake and to just let it go wherever you like.

MR MENZIES: We do not suggest that, your Honour.

KIRBY J: You would try to stop from the moment you saw the horse until the moment you stopped. All of the skid marks were on the Kombi's correct side.

MR MENZIES: We do not suggest for a moment that braking was begun and then stopped. It is simply this, and perhaps it may be a little more helpful to look at the physical conditions of the road and it explains my point, hopefully, a little more clearly.

This was a narrow winding country road. The state of the road can be seen in the photographs which are in exhibit 2 which are in a packet I think at the back of appeal book volume 2. There were two sets of photographs, one supplied by the plaintiff below, the appellant, which is exhibit A and one supplied by the respondent, which are exhibit 2. It would be convenient, if I could take your Honours to exhibit 2, and for practical purposes they both illustrate the same set of circumstances.

On the front page of the bundle of photographs, exhibit 2, there is a key and although the exhibit is referred to in the transcript as of 12 photographs there in fact are 13. The first photograph in the exhibit which is in the top left-hand corner has been numbered by the person who created the exhibit as photograph 0. It appears to have been taken looking uphill from the point where all the following photographs are taken. It does not assist very much save to say that is the general direction from which the Kombi van was coming. Then the photographs which follow, the next nine photographs, all depict the scene from the Kombi van as it travelled down hill.

KIRBY J: The first set are the direction the Kombi is going?

MR MENZIES: The direction the Kombi van is going.

KIRBY J: And the second set are also the direction the Kombi is going?

MR MENZIES: Does your Honour have exhibit 2?

CALLINAN J: The van was coming downhill, was it not?

MR MENZIES: Yes, your Honour.

KIRBY J: What was the first - - -?

MR MENZIES: It is a little confusing, your Honour, but if your Honour has exhibit 2 the first photograph in the top left-hand corner - - -

GLEESON CJ: That just generally sets the scene.

MR MENZIES: Just generally sets the scene, and the key in the sketch on the preceding page indicates that that photograph is numbered 0 and it shows from where the photographer has taken the photograph looking uphill, but not relevantly directly related to where the accident occurred. Then the next nine photographs, the first one being the one which has the road sign "E 10" on it - - -

McHUGH J: That is 1, is it, E 10?

MR MENZIES: That is 1, and the numbers appear to be, your Honour, although it is not included on the exhibit, 1, 2, 3 on that page, then 4, 5, 6 and 7 on the next page, then 8, 9, 10 and 11 on the next and the last is 12, making the photograph numbered 0 13.

Now, the photograph numbered 1 shows the general scene that the Kombi driver would have seen as she proceeded down the hill and as one goes through photographs 1, 2, 3, 4, 5, 6, 7 through to 8, which is the photograph on the left-hand page and it has what looks like a briefcase in the foreground, that is about where the collision occurred, and the next photograph immediately below at 9 depicts an area past - and this must be in approximate terms - where the collision occurred.

KIRBY J: According to whose version?

MR MENZIES: According to both versions, your Honour. There was no issue as to generally where the collision occurred.

GLEESON CJ: Except that the briefcase is not at the spot where the collision occurred. It is at the line in the road where it occurred.

MR MENZIES: Yes.

GLEESON CJ: They were in disagreement about which side of the road it happened on.

MR MENZIES: Yes, they were in disagreement about which side of the road they were on.

KIRBY J: That is what I was asking, because the briefcase is at the extreme side of the road.

MR MENZIES: Yes, it is the defendant's briefcase.

KIRBY J: Correct from the Kombi - - -

MR MENZIES: Yes. All these photographs taken by the defendant.

KIRBY J: I remember there used to be a man named Mr Taylor who used to take photographs years and years ago and they went before juries. They were always very carefully taken. It was a very important adjunct to a plaintiff's case.

McHUGH J: These are the defendant's photographs.

MR MENZIES: These are the defendant's photographs and they have been depicted from the defendant's side of the road and that is why I am expressing myself in terms of generality.

GLEESON CJ: But if you look at the front sheet, the key, it identifies "APPROXIMATE POSITION OF PERCY'S CAR FOLLOWING INCIDENT."

MR MENZIES: Yes.

GLEESON CJ: That has it on the wrong side of the road.

MR MENZIES: No, it is on the correct side of the road because it is travelling downhill.

GLEESON CJ: I see.

MR MENZIES: Then the last three photographs depict generally what the appellant riding her horse would have been presented with as she rode up the hill towards the curve and towards the.....and towards the suitcase. So, what one has is, as the judge found - and there is no issue about this - a not blind but nearly blind curve. The evidence was that those photographs depict the area with some clearing having been undertaken of the scrub on either side of the road by the time the photographs were taken. So it does nothing more than set generally the picture.

The driver's evidence was that it all happened very quickly, she was in second gear driving - depending upon her two versions - at either around 15 or around 40 to 45 kilometres per hour. The expert evidence about this there seemed no issue or no issue taken, was that the skid marks were consistent with, at the time of skidding, the vehicle travelling at around about 36 kilometres per hour. So, it is travelling relatively slowly, downhill on a narrow country road on a curve to the left and each of the appellant and the respondent on this say the same thing, it happened very quickly.

GLEESON CJ: One thing I am not clear about, Mr Menzies, is this. The horse that your client was riding ended up in a rather gruesome fashion tangled up with the windscreen of the Kombi van. Was that something that happened as the immediate result of the impact or was it the consequence of the horse's reaction to the impact?

MR MENZIES: I do not know the answer to that, your Honour.

KIRBY J: What contest was there as to whether the horse did, in fact, go through the windscreen? I think the respondent denied that, I thought.

MR MENZIES: It was certainly the case that its head was impaled in some fashion on the right-hand corner of the roof of the Kombi van.

KIRBY J: The roof?

GLEESON CJ: I could not work out whether that was because the Kombi van drove into the horse in that position or whether, following the collision, the horse reared up and became entangled with the vehicle.

MR MENZIES: I do not think the evidence was clear about that, your Honour. I am sorry, I cannot assist with that. Certainly, what has happened is, at the end of it all, the horse was in that condition. Now, the appellant - and I will come back to the concerns that your Honour Justice Kirby has raised. There was certainly no issue that it occurred in emergent circumstances. The respondent put the position that she was only 3 metres away from the appellant when she first saw the appellant. Now, one might think that, in those sorts of circumstances, that was an estimation of distance far too generous for the appellant, but what it does mean is it was obvious that this was an event occurring with very little time.

Both the appellant and the rider, Mr Murdoch, say that there was nothing to their observation of breaking or skidding before impact. The thesis that is put by the appellant is simply this. These events occurred in a very short time on a narrow road where there was not much room anyhow. At some point the respondent applied the brakes, stopped the wheels turning and began to skid, but one cannot draw the inference that the skidding occurred before impact. All that one can draw from the incontrovertible evidence of the police officer, accepted by the trial judge, was that whilst the skidding was taking place the Kombi van was on its correct side of the road.

McHUGH J: I would have thought you would have seized on the respondent's submission that she was only 3 metres away, because given the reaction time, it would indicate that she would not have started to apply the brakes.

MR MENZIES: Your Honour, I would like to be able to do that. There is some conflict in her evidence anyhow and so I do not think I can say with absolute confidence, the way I would like to, "There is the proof positive". Certainly, her evidence is about 3 metres away, but she also gave evidence of applying the brakes and skidding before impact. Now, if that is the case, either she did that and she could not possibly have been 3 metres away, or, alternatively, she was only 3 metres away, as she admits, and therefore she could not possibly have been applying the brakes beforehand and the application of brakes occurred after impact.

KIRBY J: Do you accept, even assuming it is 36 kilometres an hour, that that is not a careless speed to be driving on this road at that time? I think it was dusk; is that correct?

MR MENZIES: That is so, your Honour.

KIRBY J: And the light was fading.

MR MENZIES: Yes, and his Honour the trial judge did not find that that was an excessive speed, and we do not submit that. The issue is not speed; it is what side of the road the car was on. That is the only issue.

KIRBY J: Well, given that you have the interest of both sides - certainly, of the plaintiff and, to some extent, of the defendant - to defend the side of the road they were on, and the objective and contemporaneous record of the police officer that puts the skid marks on the Kombi's correct side of the road and the natural human reaction that, one would expect, you would apply the brakes immediately you see - you are not thinking then of a court case ending up in the High Court years later; you are trying to avoid a collision for your own safety and the safety of others.

MR MENZIES: Absolutely.

KIRBY J: Why is not the objective evidence supportive of what Justice Beazley concluded?

MR MENZIES: Justice Beazley went further than to find that the evidence merely supported it. Her finding was it was evidence of an incontrovertible nature which was directly contrary to the evidence of the plaintiff and her witness and therefore the protection of Devries and Abalos simply was not available.

McHUGH J: So incontrovertible that no reasonable judge could believe the evidence of these two people, and particularly Murdoch when he said he was pushed down the embankment.

MR MENZIES: That is so, your Honour, and in our submission, it is simply - - -

McHUGH J: Am I right in thinking that when he talks about being pushed down the embankment, on that side, is he?

MR MENZIES: Yes, yes, your Honour.

McHUGH J: Yes.

MR MENZIES: What he says is Kombi van comes around the corner, it hit the appellant. The head of his horse was at the rump and to the left of the appellant. The impact was such that he and his horse were knocked over the embankment. The horse goes over, gets onto its feet again, clambers up onto the road and he gives quite graphic evidence of having his arm nearly ripped out of its socket as he, still holding onto the reigns, gets virtually dragged back up again.

KIRBY J: The horse would be frightened, the horse would be trying to get out of the danger zone.

McHUGH J: The critical point is that he was knocked over the embankment. If that was true, then the defendant's version cannot be true.

MR MENZIES: Exactly, your Honour, and the trial judge accepted that version.

KIRBY J: Accepted?

MR MENZIES: Accepted Mr Murdoch. Justice Beazley expressed some doubt about it, but did conclude that it was so unbelievable one could not accept it. The issue that the case turned was simply whether the skid marks on the correct side of the road leading up to the stationary vehicle meant incontrovertibly that the car was on the correct side of the road when it collided. In our respectful submission, that was simply not available on that evidence.

KIRBY J: If you start from the proposition that human, automatic reactions to apply the brakes the minute you see the danger looming, then those brakes will create the skid and the skid is on the Kombi's correct side of the road and that is simply not compatible with the Kombi being on the incorrect side of the road at the moment of the site of impact and at the moment of impact. The skid marks remained entirely on the Kombi's correct side of the road throughout the mark.

MR MENZIES: Your Honour, if we were dealing with a collision that had occurred on the M4 or any broad carriageway where it would be fairly safe to draw the inference, if the skid marks were on the correct side of the road at that point, the vehicle must have been on its correct side of the road at some earlier point; or that the collision must have occurred along the skid marks, then we accept unreservedly what your Honour puts and we would accept that the appellant must fail. But that is not this case. This is a case about a narrow road where events occur very suddenly. Now, the - - -

McHUGH J: It is a sharp bend and the natural tendency would be for the driver to have gone out somewhat.

MR MENZIES: She was driving on a continuous left-hand curve. One would expect, therefore, that the driver would be steering towards the left. The appellant called an expert, regrettably, at the trial, even though the respondent called an expert as well. I withdraw that.

KIRBY J: When did this start?

MR MENZIES: I beg your pardon, your Honour?

KIRBY J: When did experts come into this case?

MR MENZIES: This trial occurred in - - -

GUMMOW J: In 1999.

MR MENZIES: - - - 1999, your Honour, and there were experts qualified on either side, their reports tendered, neither expert called, and so his Honour was in the difficult position of being given expert evidence which in fact conflicted but no opportunity to consider their expertise in the light of any cross-examination.

KIRBY J: Is that what Justice Fitzgerald meant by another unsatisfactory appeal from the District Court?

MR MENZIES: No, I do not think so, your Honour. Justice Fitzgerald's point was that this was a relatively straightforward trial in the District Court where an experienced judge, under pressure of a circuit, had dealt with the matter over several days, had thought about it overnight, had come up with a judgment which was, in Justice Fitzgerald's description, not perfect, but in the circumstances of what he had to deal with, a good workman-like judgment and that on the appeal, the appeal brought by the respondent here, there were allegations of denial of procedural fairness, apprehended bias, as well as the issues which ultimately the case was decided upon. It was in that context that Justice Fitzgerald described the appeal as unsatisfactory.

In any event, the simple proposition advanced by the appellant is this: the Kombi van is going down hill, it is curving to the left - - -

KIRBY J: The embankment is on its left?

MR MENZIES: The embankment is on its right.

KIRBY J: On its right?

MR MENZIES: As it goes downhill its driver's side, its right-hand corner collides with a horse. That horse is forced onto the other horse. The combined weight of the two horses is roughly the weight of the Kombi van. One had a billiard ball sort of result, that is to say, the horses were deflected in one direction, the Kombi van was deflected in another direction, that is to say, towards its left, sufficient upon deflection for it to go onto and remain on its correct side of the road.

GLEESON CJ: That is why I am interested in the point at which the first horse got tangled up with the windscreen of the Kombi van?

MR MENZIES: Your Honour, that was a matter that Justice Beazley, I think, considered because she was concerned that it would require the horse to be pushed along the path of the Kombi van after collision. There was no evidence to suggest that that indeed was not the case and the appellant is left lying on the roadway in front of the Kombi van slightly under the front and near the passenger's front wheel, entirely consistent with that very thing happening, that is to say, a collision, a horse being driven back and then, once everything stops, the appellant falls to the ground off the horse, and the horse is still up there, as it were, impaled upon the front of the Kombi van.

GLEESON CJ: You mean, the appellant nearly got run off, nearly had the wheels over her body?

MR MENZIES: Yes.

KIRBY J: You left out the fact that when the ambulance officers came the Kombi van was on its correct side?

MR MENZIES: Yes, your Honour. It has never been asserted by the appellant since the Court of Appeal that the Kombi van was not on its correct side of the road when it came to rest.

GLEESON CJ: That was asserted by Mr Murdoch?

MR MENZIES: Yes, and he was not accepted by his Honour. Mr Murdoch paced out - his evidence was he did some pacing out and he found the Kombi van was more over towards the centre of the road onto its incorrect side of the road than on its correct side of the road. Be that as it may, that evidence was not accepted by his Honour. His Honour accepted the police officer's evidence and we do not quibble with that, nor can we.

KIRBY J: Did not the judge decide the case on the basis of your expert? Is not that something of a problem for you, that he rested his opinion ultimately on the opinion of your expert? That is only really as good as the data on which the expert - - -

MR MENZIES: Well, I will take your Honour to the expert's opinion and the criticism of it, because, in our respectful submission, the criticisms that Justice Beazley made are not made out. But in any event - now, just let me deal with that, your Honour. Let us assume that the expert's evidence is rejected as providing no assistance. That does not convert the skid mark evidence into something having a quality which it does not have, that is to say, evidence of the nature of incontrovertible evidence upon which the judge has made a contrary finding. It does not change the nature of the evidence. So in that sense, it matters not if - - -

KIRBY J: Well, what is your theory about the skid mark? How did it get and remain and only be on the Kombi's correct side of the road?

MR MENZIES: The theory is this, your Honour, that the respondent was presented with an emergency. Before she could do anything, she had collided. At some point after collision she applied the brakes. By that time she was entirely on her own side of the road. That is the complete explanation for the undoubted finding that the vehicle was on its correct side of the road whilst it was skidding. The critical issue is whether the evidence supports the proposition that at the time of impact the Kombi van was on its correct side of the road, and it does not do that because it cannot.

GLEESON CJ: So the corollary of that is that the impact forced the Kombi van back onto the correct side of the road?

MR MENZIES: Yes, and that, your Honour, without resorting to laws of conservation of energy or complicated physical theories, is entirely consistent with the proposition that the Kombi van is going downhill, it is curving towards the left and if a force is applied to its side, namely its right-hand side, then it is likely to be deflected towards the left.

GLEESON CJ: There was no suggestion, was there, that the Kombi van sideswiped the horse?

MR MENZIES: No, your Honour, it hit the horse - - -

GLEESON CJ: It was a head-on collision?

MR MENZIES: We do not know what angles the horse and the Kombi van were at, so it cannot be asserted that it was a head-on collision in the sense that each of the horse and the Kombi van were in a direct line, but it is certainly the case that the passenger side of the Kombi van collided with the horse.

GLEESON CJ: I thought the bullbar of the Kombi van was bent back. Was that a result of the collision or a result of what the horse did later?

MR MENZIES: I do not know the answer to that, your Honour, but the bullbar, one assumes, would extend across the whole of the front of the van in any event. It was the driver's side of the Kombi van which was damaged by the horse. So that all that one can get out of that is that whilst the collisions were essentially frontal, it was on the side of the Kombi van.

GLEESON CJ: Is there a picture of the Kombi van after the collision?

MR MENZIES: No, your Honour.

CALLINAN J: It was straight on, was it not? It was in effect collinear with the side of the road. It was not at an angle?

MR MENZIES: That would seem to be so, your Honour, yes.

CALLINAN J: Which would be against any suggestion that it was a sideswipe, I would have thought.

MR MENZIES: I did not understand the Chief Justice raising that it could have been sideswiped, and certainly that was not the evidence. What I was trying to deal with was whether the evidence was clear about whether there was an angular rather than a direct contact.

McHUGH J: The Kombi van was what, 900 kilograms, and it was said the half draughthorse was 1,100 and the other horse about 500 or 600, was it not?

MR MENZIES: Yes.

McHUGH J: The respondent's expert queried the figure of 1,100 and thought it must have been in pounds, but it does not surprise me.

MR MENZIES: That rather upset the appellant's expert, who pointed out that other people might make that mistake but he had been metric since 1963 and he was quite confident.

GLEESON CJ: On any view, the Kombi van was going faster than the horse.

MR MENZIES: Indeed.

GLEESON CJ: That is why I am interested in the angle of impact. An essential part of your theory is that the impact forced the Kombi van back onto the correct side of the road.

MR MENZIES: Yes, your Honour.

GLEESON CJ: I could understand how a sideswipe might do that, but I am just trying to understand how a collision of the kind that occurred would do that.

MR MENZIES: Because most of the force was applied to, albeit the front, one side of the Kombi van. So it was not as if it was a direct conflict head on.

KIRBY J: But it was the passenger's side that struck - - -

MR MENZIES: No, the driver's side. The other factor being that the Kombi van is in a curve and the curve is to the left.

KIRBY J: I know one cannot only apply logic to these situations but one would think that the Kombi coming down that incline would have hugged the side of the embankment rather than going to where there is a danger on the other side, where it can go off the - is there something in the contour of the road that could support a drift to the right of the Kombi? As you pointed out, it is really a blind or semi-blind corner. You are not going to needlessly go to the wrong side.

MR MENZIES: A narrow country road at dusk with the sun shining more or less in the direction of the driver's face, in circumstances where it is not heavily travelled, it takes little imagination to postulate momentary inattention or just - but there is no evidence of that, your Honour. The evidence is the respondent said she was on the correct side of the road, the appellant and Mr Murdoch say they were on the correct side of the road.

KIRBY J: Mr Murdoch has to be in this respect a little discounted, does he not, in view of the judge's conclusions about his evidence?

MR MENZIES: With respect, no, your Honour, there is no reason why the judge did not - - -

KIRBY J: He may have got into a conflict with the police officer, did he not? The police officer came along and seemed to just be batting with a straight bat.

McHUGH J: No, quite the contrary. I think the judge condemned him.

KIRBY J: He was relying on his notes, contemporary notes.

MR MENZIES: If one accepts the trial judge, the picture of what the police did did not present a particularly pretty one that day. But, in any event, the police were accepted on the critical issue so far as these facts are concerned, that is, the position of the skid marks - there is no issue about that - and Mr Murdoch was accepted on most of that which he said but not all of it and there is no reason why simply because his Honour the trial judge did not accept Mr Murdoch on one issue that he would, therefore, not accept him on others.

McHUGH J: I do not know how it came about that there was verdict entered for the defendant. I would have thought that a new trial might have been the appropriate order on one view because the so-called objectivity of the skid marks depended upon accepting the police officer's evidence.

MR MENZIES: That is so, your Honour.

KIRBY J: They were recorded in the book, were they not, in his notes?

MR MENZIES: They are, your Honour, but if one looks at the book, it is a pretty scrappy little note of a few lines.

KIRBY J: Did he not have a map?

MR MENZIES: There is a rough sketch. It is at page 275 I think your Honour will find it. I am sorry, that is a transcription of the notes and then at page 280 on the left-hand column appears the policeman's sketch.

KIRBY J: Does not Justice McHugh's question highlight the fact that your submissions really want to write the Court of Appeal out of the function of an appeal by way of rehearing? That is contrary to the statute which has conferred upon it the power of rehearing and the duty to rehear and redetermine these cases.

MR MENZIES: In circumstances where the Court of Appeal's decision was based entirely upon a conclusion that the protection given by Devries no longer applies - - -

KIRBY J: Devries is judge-made law. I am talking about the statute. Devries is a way of approaching the judge-made law, but the duty of the Court of Appeal is to rehear the appeal and under the cases that this Court has handed down to keep in mind that in some respects, many respects, it will not be in the same position as the trial judge.

MR MENZIES: But, your Honour, that is not what the Court of Appeal did. The Court of Appeal simply said Devries unavailable, skid marks, incontrovertible evidence, reject that - provided a warrant to reject the trial judge's findings, so the Court of Appeal did not - - -

KIRBY J: The Court of Appeal referred - Justice Beazley referred explicitly to Abalos, Devries, a trinity of cases that established the statements that she sets out on page 366. There is nothing unorthodox about it. The Court of Appeal was just discharging its function, so it really comes down to whether or not the skid marks deposed to by the respondent, confirmed by the police officer, confirmed by his book, confirmed to some extent by the ambulance officers who came and saw the Kombi on the correct side, is enough to make it incontrovertible.

MR MENZIES: Quite so, your Honour, and our submission is, it is not.

KIRBY J: It sounds incontrovertible to me.

MR MENZIES: Your Honour, it is incontrovertible - - -

KIRBY J: It is an incontrovertible fact that there were skid marks.

MR MENZIES: Indeed. The point at which Your Honour and, with respect, we diverge is simply this: it is incontrovertible evidence of that which it proves and all it proves is that at a certain point, namely after braking commenced, the respondent's vehicle was its correct side of the road and that is all it proves. It is not incontrovertible evidence of a collision occurring in those circumstances and that is where, in our respectful submission, the Court of Appeal took an impermissible step.

The Court of Appeal converted that proposition which we submit, with respect, was limited, to the broader one which was that it showed the collision on the other side of the road.

KIRBY J: You have to add to the factors the fact that your client had a very high alcohol - blood alcohol level which could itself be an explanation of why she strayed onto the wrong side of the road.

MR MENZIES: But that is not what the trial judge found, your Honour. The trial judge dealt with alcohol and found that the circumstances were such, that is to say, it all happened so quickly that there was no causal relation between the ingestion of alcohol and the events, so dealt with that, and so far as whether the trial judge - - -

KIRBY J: I am not talking about any moral blame at all.

MR MENZIES: No, I appreciate that, your Honour.

KIRBY J: I am simply talking about - if you are looking into the conduct of two drivers, one in a Kombi van reaching a semi-blind corner with a - I would have thought - a natural tendency to hug the side of the road and a person on a horse, with a friend having consumed some drink, straying onto the wrong side of the road on a country dirt road. But for the Kombi van no one would have ever cared or it would not have mattered in the slightest. They would have just let the horse go where the horse wanted.

MR MENZIES: Your Honour, we would qualify that by saying but for the Kombi van being on its wrong side of the road at the relevant time.

KIRBY J: That is the question.

MR MENZIES: Of course, the very point of, with respect, Abalos and Devries and that line of country is that a Court of Appeal must not interfere in circumstances where the trial judge has made credit-based findings and this was a classic case, unless the criteria in those cases are satisfied. In our submission they are not and as was said in that well-known passage in Devries, even if there is a case which is a strong case, a Court of Appeal must not interfere unless those circumstances are satisfied. In our respectful submission they are not.

The matter that Justice Kirby raises about alcohol is one of the very issues that those authorities, with respect, deal with, that is to say, the advantage of the position of the trial judge; his consideration of the witnesses; his acceptance or otherwise of the witnesses based upon credit. He does all of those things and there should be no interference with that unless that trilogy of complaint can be made out.

KIRBY J: It is a trinity - trinity of cases.

MR MENZIES: Trinity, yes, thank you, your Honour, those three in any event. I need to deal with Justice Beazley's criticism of Mr Tindall because, in our respectful submission, those criticisms are not made out and if they are not made out, even if, contrary to what we have submitted, the appellant's position does not survive without Tindall.

GLEESON CJ: Do you rely on Mr Tindall's evidence at page 262 between lines 40 and 45?

MR MENZIES: Yes, your Honour.

GLEESON CJ: I was just wondering what expertise Mr Tindall - what is Mr Tindall, a horse psychologist? What expertise would he have to express the opinion of horses, not being without intelligence, naturally keep to one side of the road?

MR MENZIES: I am just looking for his CV, your Honour. Perhaps he did stray a little outside his area of expertise.

CALLINAN J: I would dispute that horses are not without some intelligence.

MR MENZIES: Could I deal with Justice Beazley's criticisms of Mr Tindall. They begin at page 361, your Honour. Her Honour at 52 repeats Mr Tindall's conclusion then turns to deal with the report. At 53 she refers to the absence of evidence about what happened to the "respondent's body" after collision. That does not seem to take the matter anywhere. She then, at 54, points out that Mr:

Tindall was not aware of the existence of the 10 metres of skid marks on the correct side of the road.

That was certainly so when he made his first report. He said in his first report there was a deflection to the left and in his later report he deals with the skid marks. He accepts as a possibility that the skidding could have commenced before impact, which is one of the matters that Justice Beazley took up with me that I was prepared to embrace part, but not all, of Mr Tindall's statement, but we accept the proposition that if that be right, that is to say skidding occurred prior to impact then we must fail and that has been our position before Justice Beazley. Next, her Honour points out that Mr Tindall did not take into account the appellant's contention she was "in second gear" when she was travelling down the hill, and that is paragraph 55.

GLEESON CJ: How many forward gears has a Kombi?

MR MENZIES: It was a 1972 Kombi. I suspect it had four, your Honour, but I do not know the answer to that. In any event, her evidence was, when given to an insurance assessor at some point after the event, that she was in second gear travelling between 30 and 40 kilometres per hour, so there does not seem to be an issue about that, and the skid marks are consistent with a speed of at least 36 kilometres per hour. So, in so far as that affected her Honour's reasoning, it would not appear to have been an appropriate criticism of Mr Tindall.

Her Honour points out that there was no evidence, as Mr Tindall asserted, that the respondent's horse was pushed to the left, where it struck Murdoch's horse, but that must have been the case, in any event, because Murdoch's horse was to the rear and to the left of the appellant's horse, so that it must follow that if the two collided as they did, there was a push to the appellant's left. So that does not seem to be a matter appropriate to criticise Mr Tindall about. Her Honour, at page 364, paragraph 66 of the judgment, refers to Mr Tindall's assumptions and Mr Tindall's opinion:

based on assumptions not in the evidence.

She then goes on to say:

In particular, Tindall doubted that the skids were wholly on the correct side of the road.

All he did, in his conclusion, was to express the need for caution when dealing with these sorts of circumstances. What he said was:

"While I accept the police evidence I caution against precise dependence on the facts."

So even though he did express some doubt about it, he accepted it, and proceeded to deal with the matter on an acceptance of that evidence. So it is not, with respect to her Honour, fair on Mr Tindall to say that he was simply rejecting the evidence the police gave, because he, in terms, accepted it. She goes on at 55:

There was no evidence to indicate that the horse with the respondent on it was pushed backwards for 10 metres as they must have been if Tindall's opinion was to be accepted.

Well, there was no evidence that that is not how it occurred and, indeed, it is consistent with what Mr Murdoch says about what happened to his horse. So again, in our respectful submission, that ought not present a difficulty in accepting Mr Tindall. Then at paragraph 67 there is a reference to if the events were as the appellant and Mr Murdoch would have it, then she would have to:

have been flung some 3 metres from her horse.

With respect, we do not see how that that follows from the description. I do not, frankly, understand why that should follow, but even if it did, it does not seem to affect what Mr Tindall had to say or the conclusion that he came to. Her Honour at 68 refers to Mr Tindall in his first report, saying the respondent's horse had been:

deflected to the left and the van to the right -

and then goes on to say that Mr Tindall seems to have reversed his position. At 262, at line 21, which is part of where Mr Tindall's first report appears, he refers to the:

deflection of the Kombi to its left -

So again, he has not changed his position. It is consistent with his first report.

Now, for all of those reasons, in our submission, there was no sound basis upon which her Honour could have, in any event, rejected Mr Tindall. If that is the case, then it would follow, that his evidence was available to support the proposition, which his Honour used it for, and that was there a deflection caused by the collision which caused the Kombi van to come onto its correct side of the road.

GUMMOW J: Now, I do not understand, in any event, why the opening words of paragraph 71 follow at all from what is said in 70?

MR MENZIES: In our submission, it does not follow, your Honour, and it does not follow for the reasons that we have already asserted, and not the least of which is, in one view of it, one can ignore Mr Tindall because it does not affect the quality of what is asserted to be the incontrovertible evidence. It remains the same.

KIRBY J: Well, you have to weigh what witnesses say where it is manifestly in their interest to say something against the fact that when the policeman came he said - and the plaintiff admits this - "Well, it looks as though you are in the wrong". He saw the marks on the road; he saw where the Kombi was standing. The ambulance confirmed that. Your client called a female friend who had the Kombi on the wrong side, and the judge discounted that, and therefore the evidence is incontrovertible that the skid marks were on the Kombi's correct side, and the issue is what your client said stacks up with that fact?

MR MENZIES: Indeed, your Honour, and in our respectful submission - - -

KIRBY J: It is a matter of how one reacts to that fact?

MR MENZIES: With respect, there is more to it than that. It only has the quality of creating a circumstance where the trial judge ought properly have rejected the appellant and her witness if that incontrovertible evidence was of a nature which made it necessary to reject the evidence because the two simply could not stand together. That is not the case.

KIRBY J: You make it sound as though the trial judge is like Atlas, carrying the weight of the world on him?

MR MENZIES: He was a very experienced trial judge who did very well, your Honour, in the circumstances. He had to deal with the very issues that your Honour raises, that is, what does one do about, for example, a witness who comes along and has an interest in saying - giving evidence in a particular way. It is the everyday problem of the trial - - -

KIRBY J: Yes, but it is the everyday function of appeal courts to hear appeals. It has been for 130 years.

MR MENZIES: Your Honour, what I was going to say was it is the everyday function of the trial judge to deal with the very issues that your Honour is raising. The judge dealt with those issues - - -

KIRBY J: We are not immune from the appeal process. We have a system in this country of appeal?

MR MENZIES: Certainly.

KIRBY J: You have to show an error on the part of the Court of Appeal. They referred to the correct authorities and they came to a different view. Anyway, I think we have debated the issues - - -

MR MENZIES: I think your Honour and I have - positions are clear enough. Those are our submissions, if your Honours please.

GUMMOW J: Just before you go, Mr Menzies. Where is the passage where the trial judge deals with Sergeant Volf's evidence, or his conclusions about this animosity?

MR MENZIES: Page 322, your Honour.

KIRBY J: Down the bottom of the page, 322 at R.

McHUGH J: Or at J:

This animosity or dislike has continued apparently even to the present time as the sergeant agreed -

et cetera.

KIRBY J: The sergeant - the constable as he was, does seem to have overreacted to the black dress and red stockings. I mean, imagine it, dealing with such a matter.

MR MENZIES: And the tattoo, your Honour.

KIRBY J: But that is really a bit a side issue, is it not?

MR MENZIES: It is, your Honour. The critical thing for those purpose is that his Honour, faced with these dilemmas, accepted the police constable and we do not take an issue with that. It is what one then derives from that piece of evidence. One does not, derive, in our respectful submission, the edifice that the Court of Appeal would construct. Those are my submissions.

GLEESON CJ: Thank you, Mr Menzies. Yes, Mr Hislop.

MR HISLOP: Your Honours, there is no doubt and it is accepted by the appellant that it was incontrovertibly established by the evidence that the entirety of the skid marks caused by the respondent's vehicle were on the correct side of the road and it is also clear from paragraph 71 of her Honour's judgment that that was a principal reason of her overturning the decision of the trial judge. Now, we would, with respect, adopt what Justice Kirby has said as to natural human reaction being to brake once one sees the danger and my friends can - - -

KIRBY J: But what do you say about the theory that Mr Menzies has put forward that you have to allow anyway for a reaction time and that there might have been a reaction time between the moment that the driver saw the horse and then a natural inclination to quickly get back onto your own side of the road and then applying the brakes for the period?

MR HISLOP: Basically, what Mr Menzies' contention is is that there was no evidence to indicate that any braking occurred until after impact, that seems - - -

KIRBY J: He has to explain the skid marks and he does that by saying they are consistent with his client's version because they demonstrate that the brakes were applied by the time the driver had got back onto the correct side of the road.

MR HISLOP: Yes, and after the impact, your Honour, is part of that. What we submit is that far from there - - -

KIRBY J: Did the skid marks show a divergence or a deflection?

MR HISLOP: No, one has the police officer's sketch, your Honour, in the book at page - - -

KIRBY J: Page 280

MR HISLOP: - - - 280, your Honour. Your Honour sees there the skid mark and, incidentally, while I am on that page, your Honour would notice the documents circulated to the police as to information to be obtained. One of the reasons why the judge thought there was animosity on the part of the police officer was because he had taken down details as to this woman's appearance, including her clothing and her tattoo, and your Honour will see from that direction document that is there the very things that the police are asked to note, including any distinguishing features and apparently this lady had a tattoo on her face. So for his Honour to go from that to the conclusion he drew as to animosity was wrong, but that is aside and, we would say, not an issue of relevance.

Can I return to this question as to the skid marks because the evidence from the respondent, immediately or very shortly after the accident, to the police was that she had:

hit the brakes and slid a bit, but the horse still came at me and hit the car -

and that appears in the statement which was recorded by the police and which your Honours will find at 275 to 276 of the appeal book.

So then the starting point is that right at the time or immediately after the accident, when interviewed by the police, she was saying, "I braked before the impact. The car slid a bit. I then hit the horse." Now, that in itself, if accepted, is evidence that the accident happened on her side of the road.

GLEESON CJ: Did the trial judge make a finding about whether she braked before impact?

MR HISLOP: No, he did not, your Honour. He did not deal with it. So that is the first step in which we say there was evidence contrary to what has been suggested. It goes on further in the respondent's evidence because she then describes how she applied the brakes and at 213 M to N she confirms that she was applying the brakes at the time of the accident:

Q. Were you applying the brakes at the time?

A. At the time of the accident, definitely.

At 215 at B to P - - -

KIRBY J: But why are you reading us the respondent's testimony? Does this not have to be approached - it is not quite like a jury trial, but the judge has accepted the evidence of the appellant?

MR HISLOP: What his Honour did not do was deal with this evidence as to the point of impact.

KIRBY J: I am missing your voice, Mr Hislop. As you get old you lose your hearing.

MR HISLOP: That is probably me losing my voice rather than your Honour's hearing being other than acute. The reason I am reading it is because it was evidence which his Honour the trial judge did not take into account. Secondly, it explains that this lady slammed on the brakes - in fact she said she stood on the brakes. Then her evidence was importantly that the van stopped upon impact with the horse. That is at 233X.

GLEESON CJ: Mr Hislop, did the trial judge have a transcript?

MR HISLOP: No, he did not, your Honour.

GLEESON CJ: Is that a matter that is taken into account in formulations of principle about appeal courts and trial judges? It is in my experience the exception rather than the rule for a District Court trial judge to have available to him a transcript.

MR HISLOP: Yes. He would have had to wait some time to get a transcript if he wished to use the transcript, your Honour.

KIRBY J: Does that not support a little what Lord Hoffmann said in the Biogen Case, that every judge's reasons is an attempt honestly to state what is a partly intuitive response to complex facts and law and that where you have a judge who does not have a transcript and he is trying to get the decision out quickly, he is putting down what is his response to the entire situation and that makes it a reason for caution in being too pernickety over the reasons that he gives because it is his expression of why he comes down on one side rather than the other.

MR HISLOP: Your Honour, clearly the issue in the case was on what side of the road the impact occurred. All the evidence to that was vital. His Honour gave judgment the day after the evidence concluded, so it should have been fresh in his mind. We would submit it would not be too pernickety to suggest that his Honour should have dealt with this aspect, particularly for additional reasons that I will come to in a moment. They are these. As I was saying, there is reference in the - - -

McHUGH J: He distracted himself. At 315 he referred to your client, he referred to the conflict in her accounts as to what speed she was going and then he said:

She said in evidence that she was proceeding down the hill in second gear, obviously indicating that it was a steep incline and that was necessary . . . Mr Tindall does not suggest that this speed -

His Honour diverts himself then and starts talking about speed and he does not come back to the issue. That does not mean he did not consider it.

MR HISLOP: He does not deal with it in his judgment. The evidence was from the lady that the van stopped upon impact with the horse. So that evidence, if accepted, means that the skid marks establish incontrovertibly that the accident occurred on the Kombi's correct side of the road.

KIRBY J: Unless there is a delay between the moment of the sight of the horse and restoration to the correct side of the road, which is Mr Menzies' theory about the case.

MR HISLOP: But Mr Menzies' concession was that from the moment she started to brake, there would be no reason why she would stop braking at any stage. What we are submitting is that her evidence was, both initially to the police officer contemporaneously, as it were, with the event and thereafter when she gave her evidence, that she braked when she saw the horse, the impact then occurred and she was stopped by hitting the horse. So the whole distance of the braking was that and it was on her side of the road. That means it is an incontrovertible fact that the impact occurred during the course of the braking. That puts the impact clearly on the driver's side of the road.

McHUGH J: It is completely inconsistent with the judge's finding at 326 where he says that what Murdoch said he thinks is substantially what happened:

particularly his extraordinary movement after the accident of going over the bank together with the horse, or rather his going first and the horse following . . . That is a matter I accept and that shows, in my view, that the probabilities are that his horse was juxtaposed to the horse ridden by the plaintiff in the way in which both he and the plaintiff say it was.

And if you take the judge's acceptance of the police officer and his acceptance of that, I do not see how you could enter a verdict for the defendant on any event. The best you could do from your point of view is to order a new trial. Why is that not an incontrovertible fact against you? Both facts are not incontrovertible in the sense of the authorities, although no doubt you can use them in that way, because they depend upon human testimony and they are as good as the person who deposed to them.

MR HISLOP: I am sorry I am labouring this point about the evidence of the respondent, your Honour, but we have, I think, clearly on her evidence, the position that if that is accepted - - -

McHUGH J: Look, you had a strong case, no doubt about it. The defendant had a strong case dependent upon being accepted. Once you accept the plaintiff, it is a very different case.

MR HISLOP: I understand that, your Honour, but can I just - - -

McHUGH J: Courts of Appeal should not be interfering with trial judges' findings on credibility unless there are really incontrovertible facts to which there is no logical explanation whatever, consistent with acceptance of the finding of credibility.

KIRBY J: I do not know that the adverb "really" goes in. We are not going to strengthen it up even more but, deducting the word "really", it is still a very high hurdle for you to jump over.

MR HISLOP: Can I continue to approach the hurdle and hopefully surmount it. The appellant's expert, Mr Tindall, believed, and so he said in his report, that the respondent did effect some braking prior to impact. If that be accepted, then again the accident must have happened on the correct side of the road once you have his Honour's finding that the whole of the skid marks were on the correct side of the road. Indeed, he went further than that because he said that the impact most likely occurred during the skid mark. Now, again, once you take that and ally it with his Honour's findings as to the position of the skid marks, then you have clear undoubted evidence that the accident happened on the Kombi's correct side of the road.

KIRBY J: Well, the only other explanation is the one Mr Menzies proffered, and that is that the impact happened earlier, but quick as a flash the driver got back onto the correct side of the road and then applied the brakes.

MR HISLOP: That does not run, your Honour, because Mr Tindall said that she effected some braking prior to the impact, so you cannot have impact, then braking. You have braking - - -

McHUGH J: But forget Tindall. Look, this case is a very simple case. You have the trial judge accepting these two people and you have the skid marks accepted as being on the correct side of the road, your client saying that she was always on the correct side of the road. The question is: is there any explanation of the accident consistent with the skid marks being on the defendant's correct side of the road?

MR HISLOP: And there is, in our respectful submission, none because the evidence which the respondent gave was not cross-examined upon and, indeed, the cross-examiner framed his questions, or some of them in cross-examination, on the basis that he accepted that the respondent had braked before impact.

KIRBY J: Where do we find that?

MR HISLOP: Page 236P to T, your Honour. So there is no cross-examination to controvert what she said about when she applied the brakes and the horse - - -

McHUGH J: Well, it depends upon the tone of voice. It might have been asked in a sarcastic tone of voice. This is the problem with trying cases on transcripts. Anybody that has conducted more than one trial and the appeal knows the difference between the two scenarios.

KIRBY J: Some lawyers have particularly sarcastic voices most of the time.

MR HISLOP: To respond to what your Honour Justice McHugh said, what is there at page 236P down to T are two occasions where he accepts, in the formulation of his question, that indeed she had put on the brakes prior to the collision. There is no cross-examination at all to suggest that she had not done so. So, with due respect to your Honour in this case, there is no reason to believe he was being sarcastic because, if he had been, he would have followed up with some questions putting it in dispute and he did not, so we have that.

What we then have, therefore, is clear evidence from the respondent that her actions necessarily involved the skid marks being on the correct side of the road and the accident being there. The acceptance by Mr Tindall, the plaintiff's expert, that he believed she did brake before the impact, or effect some braking, the impact most likely occurred during the skidding period where the skid marks were left. We have no cross-examination of it and we have an acceptance, prima facie, in the terms of the questions that are put.

Your Honours, when the appeal book was put together, some documents were missing being some annexures to the first report of Mr Tindall. They were subsequently found and were sent to the Court as additional documents for the appeal book. I trust that they have caught up with the Court's papers.

GLEESON CJ: What form do they take?

MR HISLOP: What is being said to me, your Honour, is it has a heading "Appeal Book Additional Documents" and then follows a - - -

GLEESON CJ: Is this a letter addressed "Attention: Senior Registrar Carolyn Rogers"?

MR HISLOP: I do not have a copy of the addressing letter, your Honour.

GLEESON CJ: Just have a....those papers and tell me if they are the documents.

MR HISLOP: My learned junior says that that letter is the case.

GLEESON CJ: Just have a look at that and check if they are the documents.

KIRBY J: These were all in the trial, were they?

MR HISLOP: Yes, they were, your Honour. I can take your Honour to the references if there is any question about that. They do appear to be the documents, your Honour, yes.

GLEESON CJ: Thank you.

MR HISLOP: The document I want to take the Court to is the statutory declaration of Mr Murdoch and I wish to take the Court to paragraph 4 of that document. This was a statutory declaration which Mr Murdoch said in evidence, between pages 141P and 143F of the book, was a document which he had read which he acknowledged to be correct. In it, in paragraph 4, he said:

Consequently she collided with the right forequarter of Barbara's horse killing it almost instantly, my horse went into the back of hers (as she was suddenly stationary), the combined mass of these two large animals approximately two ton stopped the van dead in its tracks and shunted it approximately one metre sideways -

So, on his evidence, the skid marks indicate the distance travelled by the van before it was stopped dead on impact, those skid marks being entirely upon the van's correct side of the road. There can, in our submission, in those circumstances, be only one conclusion to be drawn and that is that the accident happened upon the defendant's correct side of the road and, accordingly, the Court of Appeal, quite correctly - - -

KIRBY J: You are dropping your voice again, Mr Hislop.

MR HISLOP: I am sorry, your Honour.

KIRBY J: I do not know whether you want me to hear what you are saying.

MR HISLOP: I do, your Honour. Accordingly, there can only be one result, that was the accident happened on the van's correct side of the road and the Court of Appeal, correctly, entered a verdict for the defendant on the appeal.

KIRBY J: What about Justice McHugh's point referring to what the judge had said concerning Mr Murdoch going down the embankment?

MR HISLOP: Because, your Honour, it is accepted on all sides that the skid marks are incontrovertible evidence. That is the starting point of the submissions made on behalf of the appellant. Accepting that to be so, then it follows that the evidence clearly shows that the impact occurred in the course of those skid marks and if that be so then it is indisputable that the accident occurred on the correct side of the road, and whether one believes what Mr Murdoch had to say about his horse getting bumped and ending up going over the side which, in itself, seems fairly unlikely with him then saying he was somehow brought back on his feet and the horse remained on its feet. But put that to one side, it does not matter in the face of the incontrovertible evidence of the skid marks and the other evidence to which I have brought to the Court's attention.

GLEESON CJ: In what circumstances was the statutory declaration obtained?

MR HISLOP: It was apparently obtained by the solicitors acting on behalf of the plaintiff and then was subsequently forwarded to Mr Tindall as part of the materials used by him to formulate his opinion and then was tendered as part of that - - -

GLEESON CJ: It seemed to be used to qualify Mr Tindall.

MR HISLOP: Yes.

KIRBY J: Was there not something made by Justice Beazley of an inconsistency between what Mr Murdoch said in statutory declaration and what he had said to the police officer, recorded in the - - -

MR HISLOP: I think Justice Beazley was mentioning something that was omitted from it and not in respect of the matter which I have just been agitating, your Honour.

GLEESON CJ: It was the omission about the measurement of the distance between the rear of the car and the side of the road which he said he paced out at the time.

MR HISLOP: Yes, that is so, your Honour. On that basis, we submit what the Court of Appeal did was totally appropriate, particularly having regard to its obligations and duties under section 75A of the Supreme Court Act. We would also submit that in any event - - -

KIRBY J: It is in the District Court Act, is it? It is not in the Supreme Court Act?

MR HISLOP: Section 75A is in the Supreme Court, your Honour. That is the powers of the court on appeal.

KIRBY J: I see. How could I forget.

MR HISLOP: Yes, 75A.

KIRBY J: These are not uncommon cases. I have sat in a number of them where there have been appeals based on so-called incontrovertible facts where the issue is on what side of the road the driver was. Chambers v Jobling was a very early case I sat in. It is in the New South Wales Report.

MR HISLOP: Yes.

KIRBY J: It was exactly that problem and we reversed the trial judge. It was somebody on the Harbour Bridge.

McHUGH J: That was pre-Abalos.

MR HISLOP: I cannot remember if it was the Harbour Bridge, your Honour. It was certainly a bridge, yes.

KIRBY J: Yes, it may not have been the Harbour Bridge. It may have been another bridge.

MR HISLOP: It was a question of whether it was the blonde lady driver or the male, I think, your Honour.

KIRBY J: Then SIDS came along, the subtle influence of demeanour.

MR HISLOP: In the trilogy.

KIRBY J: The judge, at least, has the good sense not to refer to that but he did accept in a hotly contested case he believed the appellant and he believed Mr Murdoch and he saw them and we do not.

MR HISLOP: True, but we do have, as I have said, incontrovertible evidence coupled with evidence which goes one way only and indeed is from Mr Murdoch, as one sees from the statutory declaration, which means that the accident happened on the van's correct side of the road. Now, the trial judge did not deal with these matters, so that we would submit that the proper view is that the Court of Appeal was correct in entering the verdict and that should stay. If we are wrong about that, then we would submit that the only appropriate course would be a retrial.

The only other matters to which we have regard is what we would submit is the glaring improbability of Mr Murdoch's suggestion or Mr Tindall's suggestion that somehow the vehicle with this large 1,000 kilogram of horse, somehow caught by the throat by the vehicle, was somehow carried some distance without displacing the plaintiff, because she was not run over, and we would submit that that is simply glaringly improbable and, of course, becomes totally impossible once one sees what Mr Murdoch in fact said in his statutory declaration.

The damage to the van was to the centre front. That appears from 289 at line 30 in the report of Jamieson Foley where he refers to the police report:

showed a damaged code of "A" indicating the centre front portion of this vehicle.

And there was the evidence of the respondent that the vehicle was not hit sideways. There was no deflection. That is at 236, H to P. The horse apparently hit the windscreen of the car and became impaled on some part of the vehicle.

So we say it would be quite glaringly improbable that with a 1,000 kilograms of horse attached in that way that the car would have gone anywhere, much less somehow travelled back onto the correct side of the road and then put down 10 metres of skid mark totally on the correct side of the road. Indeed, it is controverted by the evidence both of the respondent and in a statutory declaration of Mr Murdoch.

We have in our written submissions addressed the laws of physics in relation to momentum conservation. My learned friend in his reply to that had said that the consulting engineer's opinion, that is the respondent's consulting engineer's opinion, was based on an error, namely the weight of the horses being about half of what they in fact weighed. In fact, the expert's opinion, for the respondent, criticises Mr Tindall's report on three bases, one of which is the weight of the horses, but he then proceeds to conduct the momentum analysis using the values assumed by Mr Tindall and apparently his Honour did not appreciate that. The relevant pages in the Jamieson Foley report are at pages 292 and on to 293 where the Court will see that there were a number of reasons put forward as to why Mr Tindall was wrong. They are there set out - - -

KIRBY J: What page is this?

MR HISLOP: Page 292, your Honour, of the appeal book. At line 30, he certainly does suggest the horse's weight was wrong. At 45, he talks about a secondary impact and considers that that too was wrong, and at line 50, a third view or matter, is the momentum analysis, and he says Mr Tindall is wrong on that. He conducts his test, using as he says there in the last two lines:

based on the values assumed by Mr Tindall.

So, in fact, as a matter of science, he has confounded Mr Tindall by using his own figures. So we say that his Honour apparently did not appreciate what was being done using Mr Tindall's figures. Then further on, 293, there is additional analysis of the momentum conservation theory.

So Mr Tindall's report is unhelpful and indeed wrong for those reasons, in our submission. His Honour did not, in our submission, fully appreciate that the figures had been calculated using Mr Tindall's basis as to the weights of the horse.

Mr Tindall's report is wrong because at the highest it said, "It could be that the accident occurred on the wrong side of the road." He did not say, "It did." He said, "It could be", and once one has the evidence of his Honour's findings as to the skid marks and the other evidence, then he is wrong - well, he is not wrong because he said, "It could have happened" but the fact is that it did not, on the findings. And, finally, one has these series of criticisms made by Justice Beazley which are set out in her judgment. So that of those matters then her Honour correctly concluded that Mr Tindall's report - her Honour Justice Beazley correctly concluded that Mr Tindall's report was not to be relied upon, and the way the trial judge's reasoning process seemingly had worked was to look at Mr Tindall's report - that says it could possibly have happened, and then to reach a conclusion that it did. So Mr Tindall's report goes down and then for the reasons we have indicated, the whole case collapses because of the evidence as to the skid marks as found by his Honour.

KIRBY J: What did Justice Fitzgerald mean by saying that there were suggestions of bias, and so on, on the part of the judge? The notice of appeal to the Court of Appeal, at 341, does not mention that at all. Was that something earlier, was it?

MR HISLOP: No, there was an amended notice of appeal, as I understand it, your Honour, which I think is referred to perhaps at page 370.

KIRBY J: We are not concerned with those issues.

MR HISLOP: No. That is not an issue here, your Honour. It seems to have been something that was part of the matter in the Court of Appeal.

KIRBY J: Was Sergeant Volf cross-examined to suggest that he was biased against the plaintiff, or not?

McHUGH J: Yes, he was.

MR HISLOP: There was that suggestion, your Honour, but it is not apparent, if he was, what effect it had. As I indicated earlier, in an aside, one of the bases for his Honour the trial judge reaching that conclusion appears to have been the note that was taken - - -

KIRBY J: About the clothing and the - - -

MR HISLOP: About the clothing and the like, and I have indicated to the Court why it was proper procedure for that to be done, and that seems to have been a principal reason for his Honour to take that view. Yes, the reference in the judgment of the trial judge in that regard, your Honours, is at 321K to Q.

KIRBY J: Yes, I read that.

MR HISLOP: There was also a suggestion that he may have said that "It looks like it was your fault" or something of that nature to the plaintiff. He could not recollect that, which is not surprising, whether he did or did not say it. But even if he did, why would it not look that way to him? The Kombi is totally on its correct side of the road.

KIRBY J: If the Kombi had been on the wrong side of the road, he would have had to charge your client.

MR HISLOP: But just looking at it objectively, the Kombi was on the correct side of the road. The plaintiff was in front of it but had not been struck by the Kombi, the horse was behind the Kombi, and the plaintiff had had quite a large quantity of alcohol which his Honour found would have affected her. Why would not a police officer coming upon that scene consider that the horse rider had been at fault? If it please the Court, they are the submissions.

GLEESON CJ: Thank you, Mr Hislop. Yes, Mr Menzies

MR MENZIES: Your Honours, on the issue of the momentum analysis which was given by the respondent's expert and which is referred to at 294, which is said to be one of the bases for asserting Mr Tindall was incorrect, that of itself proceeds upon an assumption about the angles which the horses and the Kombi collided, which is simply not available on the evidence. So one cannot draw from that contrary momentum analysis anything that assists the respondent. But it points up Mr Tindall's concern expressed in, I think, his last report and that is that one should be careful, there being so many variables involved, to draw any particular conclusions, particularly trying to deal with them on momentum analysis basis.

CALLINAN J: Mr Menzies, can I just put one matter to you.

MR MENZIES: Certainly, your Honour.

CALLINAN J: Assume that her Honour Justice Beazley was correct in her criticisms of Mr Tindall's report and she points out, and I think correctly so, that the trial judge relied upon three matters, one of which only was Mr Tindall's report. Assume her Honour is correct about that and assume that even though there are inconsistencies in Mr Murdoch's account, there is still evidence which might justify a finding in your client's favour but that the result is tainted by the reliance also upon Mr Tindall. Then one appropriate way for this Court to deal with the matter might be to send it back for a retrial. What is your attitude to that? Naturally you would prefer a verdict in your favour, but it is better than losing, is it not?

MR MENZIES: Indeed, your Honour. If I had my druthers, I would rather your Honours would allow the appeal and simply reinstate the District Court judge's decision. In our respectful submission, that would be appropriate, even if one puts Mr Tindall to one side, for the reasons that I have said - - -

CALLINAN J: It is unusual, certainly, to order a retrial when the judge has tried a matter and when some of the material was written material, but it does happen from time to time, even in cases of this kind.

MR MENZIES: Your Honour, obviously if that was the preferred position that the Court ultimately took, if the alternative was failure, it is obviously one that we would not wish to argue against. But our submission is that even if you take Mr Tindall out altogether, what it does not do is convert the quality of that piece of incontrovertible fact, the skid marks, into something more than it was.

CALLINAN J: But you still have a judgment about which there may be some problems. You still have a judgment which relies, and it does seem to me relies rather heavily, upon what looks at first sight at least an arguably unreliable report.

MR MENZIES: Your Honour, I can say nothing more than we would have to accept that if that was the Court's - - -

CALLINAN J: Justice Beazley described it as a core finding, I think. That may be perhaps overstating it, but it was obviously an important component part of the trial judge's findings.

MR MENZIES: We would put it this way, your Honour. All that Mr Tindall's report did for his Honour was to point out what really is a sensible - a commonsense approach which would accord with one's own experience and that is that when there is a collision between two objects of more or less equal size, one certainly having more velocity and therefore more momentum than the other, that what will inevitably happen, almost certainly, is a deflection of both of them, and that Mr Tindall was really saying no more than that. Even if the report is flawed, that proposition is still available and that was really the basis of his Honour's finding, that is to say an acceptance of the concept of a deflection. On that basis our primary submission would remain that the appropriate judgment is the allowing of the appeal and the restoration of the District Court judge's judgment. I do not think I can usefully put anything further to that.

GLEESON CJ: Thank you, Mr Menzies. We will reserve our decision in this matter.

AT 4.12 PM THE MATTER WAS ADJOURNED