Clancy v Nominal Defendant (Queensland) [1995] QCA 282

IN THE COURT OF APPEAL [1995] QCA 282 SUPREME COURT OF QUEENSLAND Appeal No. 169 of 1994 Brisbane Before Davies J.A. McPherson J.A. Shepherdson J. [Clancy v. Nominal Defendant (Qld.)] BETWEEN TRACEY LLOYD CLANCY (Plaintiff) Appellant AND THE NOMINAL DEFENDANT (QUEENSLAND) (Defendant) Respondent REASONS FOR JUDGMENT - THE COURT Judgment delivered the 23rd day of June 1995 After a trial of this action a learned Trial Judge assessed the appellant's damages at $406,645.25 and dismissed his claim with costs to be taxed. From that decision the appellant has appealed seeking primarily that the judgment be set aside and that there be judgment for him against the defendant with costs to be taxed. Alternatively the appellant seeks an order that there be a new trial of the action and that the defendant pay the appellant's costs of the appeal to be taxed. There is no appeal concerning damages. The appellant's case on liability was that at about 9.30 p.m. on 20 October 1986, he was riding his motorcycle outbound along Ingham Road, Townsville towards that road's junction with Duckworth Street which joined it on its left, -- 1 of 14 -- 2 that he was intending to drive straight ahead along Ingham Road to his home and that at that intersection a large four wheel drive station wagon (never identified) collided with his motorcycle. On the appellant's case, the four wheel drive station wagon had approached the junction along Ingham Road travelling in the opposite direction and was turning to its right across his path of travel; it stopped as though to yield the appellant right of way but it then moved forward and struck him on his right side just as he was about to pass in front of it; he was thrown in the air and landed flat on his back on a kerb. At trial it was generally agreed that the appellant and his motorcycle came to rest close to one another on or near the kerb of Duckworth Street a relatively short distance from its corner with Ingham Road, as though the appellant had diverged about 45o from his original line of travel. The respondent defendant put in issue the appellant's claim that there was another vehicle involved in the incident in which the appellant and his motorcycle came to rest in the above position. The learned Trial Judge carefully scrutinised the appellant's claim and rejected the appellant's evidence as to the circumstances in which he sustained his injuries. The learned Trial Judge, in detailed reasons, was at some pains to point out and explain what he saw as a number of suspicious features of the appellant's claim. His Honour found that there were several matters on which the -- 2 of 14 -- 3 appellant's evidence was at odds with that of other witnesses. His Honour found that the appellant was a poor, if facile, witness and that his general character was not high. He found him shrewd and not very intelligent. He said "It is difficult to regard him as a completely truthful person and indeed at times he seemed to be clearly untruthful though glib". Leaving aside for the moment the matter of the appellant's character the following matters in the evidence were capable of showing that the appellant was at odds with other witnesses: 1. The appellant's claim that while he was lying on the road or kerb - he was not unconscious - he heard what he thought was the offending vehicle stop somewhere behind him and two doors slammed, that two persons approached and one of them said he had not seen the appellant and that after the appellant's own vehement rejection of this, further conversation ensued. 2. Mr Gergenti was a taxi driver of Aitkenvale, Townsville driving a fare along Ingham Road towards Townsville on the night of 20 August 1986. He swore he had very little recall of the event; that after his fare had said something, he turned back while on Ingham Road and drove to the intersection of Duckworth Street and Ingham Road and there he saw a man lying on his back in the gutter on the Ingham side of Duckworth Street. He said he saw no other vehicle in the vicinity. He said that he made a u-turn in Duckworth Street and as he turned around, radioed his base. He said he did not -- 3 of 14 -- 4 recall until he "walked up to the gent on the ground", seeing another vehicle he thought was a Land cruiser and that vehicle was stationary in Duckworth Street "with the front pointing away from Ingham Road" and on the right side in Duckworth Street as he, Gergenti, was walking back. Gergenti did not see any people in or about that vehicle. 3. Graham Bruce Lyman, a member of the RAAF then stationed at Garbutt RAAF base at Townsville, gave evidence that on the night of 20 August 1986 he was a police dog handler looking after a VIP aircraft and patrolling with a dog some distance from Ingham Road. Lyman swore he was familiar with the intersection of Duckworth Street and Ingham Road, that he was about 500 - 600 metres from that intersection, that he heard the sound of a motor bike travelling up Ingham Road from south to north, his attention having been drawn to the sound of the bike, because it had an attractive note and he, Lyman, at that stage built engines and tinkered with cars; that he watched this motor bike come into view and travel up the road, that he watched it travel almost to the intersection, that he turned away and then heard a thump and that he did not himself go to the scene. Lyman, when cross-examined by defence counsel, said that he looked towards the intersection after he heard the thump and could see "Nothing. No vehicles", that there was nothing to obscure his vision of the -- 4 of 14 -- 5 intersection and that had a vehicle the size of a four wheel drive been at the intersection when he looked, he most definitely would have been able to see it and there was no vehicle there. Lyman further said that he kept the intersection under observation for some minutes, that he watched a vehicle travel from the north down Ingham Road towards Townsville pass through the intersection and not stop and that he continued to watch the intersection and then saw a taxi travelling north turn left into Duckworth Street. He described the taxi as "the first vehicle that stopped". Lyman further said that after having heard this thump he rang and "contacted the RAAF police"; he said he saw a short wheel base Toyota land cruiser coloured military green with a soft top arrive at the scene of the accident after the taxi. This vehicle was the one in which the RAAF police travelled and he thought it got there within two minutes after the taxi driver had pulled up. This RAAF vehicle was probably the vehicle which Gergenti saw. Lyman was questioned about the lighting. He said Duckworth Street was pretty well lit for a distance of about 100 metres from the intersection to a railway line, that from the time of the thump to when he looked to the intersection it must have taken him half a second and that when he looked he saw no sign of the moving motorcycle or motorcyclist and that there was no possibility that he had failed to see a vehicle which had collided with a motorcycle then -- 5 of 14 -- 6 moving along Duckworth Street. Both Gergenti and Lyman were witnesses called in the appellant's case. The learned Trial Judge described Lyman as "an impressive eyewitness who had an unobstructed view". His Honour found that Lyman had accurately described what he called "Mr Gergenti's slightly convoluted course". The learned Trial Judge found that the only direct evidence against the plaintiff's version of the incident was that of Lyman and he added "but it is powerful". He went on to say: "He seems to have been consistent and his honesty is unquestioned. While care should always be taken as to the accuracy of independent witnesses, no matter how truthful, Mr Lyman appeared in all respects to be an intelligent and responsible observer and his opportunity for observation was excellent in a number of respects. Although he was some distance from the scene this could in some ways have been an advantage in giving him a full panoramic view, his view was unobstructed and the scene was well lit. Being on uneventful guard-duty with a dog, he had nothing else to distract his attention at the time." The learned Trial Judge made other comments about Lyman, mentioning his immediate telephoning of the airforce police and their arrival and his observation of the course of Gergenti's taxi. Pausing here, it is apparent that the learned Trial Judge was correct when he said (of Lyman) "if he is right it is very likely that there is an implied contradiction of the plaintiff's account". The learned Trial Judge said that it was not easy to reject Lyman's direct evidence. In fact he accepted Lyman's evidence and combined it with what he saw as the weight of a "number of suspicious features" which he regarded as having -- 6 of 14 -- 7 weakened the appellant's case. His Honour concluded that the weight of these "adverse factors must strongly defeat" the appellant's direct evidence. These suspicious features were dealt with by the learned Trial Judge at some length. We mention a number of them - it is unnecessary to recount every one. 1. The disappearance of the appellant's motorcycle after the accident - His Honour said: "This has relevance in the use that the plaintiff now makes of its damaged state. It was left at the scene by the police so that the plaintiff's family could remove and although it could not be ridden for more than a short distance, according to the plaintiff's expert, it is said to have been stolen. But when the police inquired into the matter from his [the appellant's] brothers they gave conflicting reports, each claiming that it was with the other, but it is doubtful whether anyone reported it stolen. Some two months after the accident as a result of an advertisement inserted by the plaintiff's wife she received an anonymous call directing her to an isolated place where she found what is said to be the relevant motorcycle. It was in pieces. It was subsequently submitted to expert testing which showed damage and paint markings suggestive of an impact with something which corresponded with some of the colours of the unidentified vehicle as the plaintiff now describes them." 2. The motorcycle was unregistered and its engine number had been removed and, as His Honour said, "so that there is a serious possibility that it was stolen". His Honour continued: "The plaintiff says that he had bought it from another man a couple of years before and that he was riding it on this occasion because his other motorcycle had broken down. If it had been stolen, this -- 7 of 14 -- 8 may account for its disappearance after his accident so that the police would not detect its status, a disappearance which could well be innocent for present purposes" His Honour discussed the possibility that the damage later found was "fabricated by some sympathetic person to support the plaintiff's claim". His Honour went on: "There is no evidence of this but the account of the investigating police officer, Mr Hutchings, of the damage on the machine that he saw, general though it is, does not comfortably correspond with the damage found by the plaintiff's expert on the machine which he examined." His Honour then said: "Serious caution should be exercised before a finding of fabrication of evidence were found. But the plaintiff had the opportunity for it through the agency of one or both of his brothers who were active on his part in the affair and whose actions are somewhat suspicious. This and other features of this case and its inconsistency with inferences with the independent evidence must at least permit an allowance for the possibility of fabrication." 3. The appellant's notice to the Nominal Defendant dated 5 January 1987 stated that the motorcycle that he was riding was a 250cc type, whereas that examined by the expert was a 500cc type. The appellant gave evidence at trial that he was riding a 500cc motorcycle. An advertisement inserted by the plaintiff's wife in the local newspaper on 15 February 1986 described the missing motorcycle as a 250 XL model and as His Honour noted "however, the description also mentioned that it was of Honda brand and a grey trail bike and these correspond with what is now produced". -- 8 of 14 -- 9 4. The notice to the Nominal Defendant described the other vehicle as a "1984 Toyota 4WD" registration number NRT- 826 owned and driven by Chris Crofts. A description was given of the accident which included: "Claimant was driving along Duckworth Street near intersection of Ingham Road, involved in a collision with a vehicle he believes to have been driven by Chris Crofts ... the claimant believes the other vehicle was on the wrong side of the road and hit him head on." The learned Trial Judge found the appellant's explanation for his reference to Chris Crofts and his vehicle was generally unsatisfactory and that in two ways the description was in total conflict with his evidence at trial. His Honour thought the detail of the description suggested more than a mere aberration. 5. Another matter which His Honour described as "worrying" was a difference between his evidence at trial as to the parts of the respective vehicles that first came into collision and what the appellant said in answers to interrogatories. 6. Although the appellant had initially given some account of the accident to the police, he later refused to discuss it in detail with them, and refused then to tell them of the whereabouts of the motorcycle which was then with his expert. His Honour found that the plaintiff was cross at the delay in the police investigation and that this explanation was most unconvincing, particularly as the police investigation may have aided his case "if he were genuine". -- 9 of 14 -- 10 This is a case where the learned Trial Judge had an advantage over this court and is one where this court will not set aside the learned Trial Judge's findings against the appellant's credibility and his findings in favour of the credibility of Lyman unless the appellant can show that the learned Trial Judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence"or which was "glaringly improbable". (see Devries v. Australian National Railways Commission (1992-93) 177 CLR 472 at 479). The appellant has failed to show any ground for overturning the learned Trial Judge's acceptance of Lyman as a witness of truth and his rejection of the appellant as a witness of truth and his dismissing the appellant's claim. One aspect of the appellant's evidence not mentioned by His Honour was his statement that after the impact of collision he was thrown in the air and landed on his back some 25 metres away. There was no issue but that he and his motorcycle came to rest close to one another. Such a result may well have been thought very surprising and further impairing confidence in the appellant's credibility. We turn now to the alternative submission of the appellant namely that there should be a new trial. Mr Pack, who appeared for the appellant (he was not trial counsel) submitted that there was a suggestion of a real danger of a miscarriage of justice because the learned Trial Judge failed to address an hypothesis that a vehicle mentioned in -- 10 of 14 -- 11 the evidence of Lyman may well have been the vehicle with which the appellant's motorcycle collided. His argument depended on the construction to be placed on the following passages in the evidence of Lyman: 1. Speaking of his observations after he had heard the thump and immediately looked back to the intersection, he was asked in cross-examination how long he kept that intersection under observation and he answered: "It was some minutes. I don't recall exactly. I watched a vehicle travel from the north down Ingham Road towards Townsville pass through the intersection and didn't stop. It was a couple of minutes as I recall. I continued to watch the intersection and then saw a taxi travelling north turn left into Duckworth Street ... " He agreed that the taxi was the first vehicle to stop. 2. Under further cross-examination as to what he saw after he said he had looked back after hearing the thump he said: "Well at that point I looked at the intersection and there was nothing there. I watched then the vehicle travel from the north to the south, didn't stop, and I wondered to myself whether in fact I hadn't imagined anything and a taxi travelled through the intersection did a u-turn and came back." The vehicle mentioned in these passages is the vehicle referred to in this submission. In our respectful view, this submission has no substance at all. Lyman's plain evidence is that the vehicle which travelled from north to south went through the intersection without stopping. There is no suggestion of any right hand turn - such a turn was crucial to the appellant's case. Furthermore, what Lyman -- 11 of 14 -- 12 described happened after the thump which must be taken as the noise heard by Lyman when the appellant's motorcycle collided with some object. The application for a retrial fails. Finally, we should say something about the learned Trial Judge's finding that the appellant's "general character was not high". The unchallenged evidence showed that in 1980 the appellant was convicted of assault and served 16 months imprisonment; in 1984 he was convicted of cultivation of marijuana and served 7 months imprisonment and in 1988-1989 he was convicted of several offences of stealing, one of stealing a chainsaw and another a stealing offence in a store. The appellant appears to have told a psychiatrist in respect of the chainsaw offence that it should be looked at in the light of a misunderstanding over the removal of various bits of property. In our respectful view, the comment by the learned Trial Judge as to the appellant's character was justified. We dismiss the appeal with costs. -- 12 of 14 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 169 of 1994 Brisbane [Clancy v. Nominal Defendant (Qld.)] BETWEEN TRACEY LLOYD CLANCY (Plaintiff) Appellant AND THE NOMINAL DEFENDANT (QUEENSLAND) (Defendant) Respondent Davies J.A. McPherson J.A. Shepherdson J. Judgment delivered 23/06/95 Reasons for judgment by the Court APPEAL DISMISSED WITH COSTS. CATCHWORDS PERSONAL INJURIES - Motor Vehicle Accident with unidentified car - Whether another vehicle was involved - Whether there has been a miscarriage of justice - Whether Court should overturn trial judge's findings on credibility of witnesses - Devries v. Australian National Railways Commission (1992-3) 177 C.L.R. 472. Counsel: R. Pack for the appellant D. Tait for the respondent -- 13 of 14 -- Solicitors: Suthers & Taylor for the appellant Phillips Fox for the respondent Hearing Date: 22 May 1995 -- 14 of 14 --