Browne, Doris Bridget v Dudley, Elizabeth Anne [1998] FCA 1515

GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY AG 55 of 1997 DISTRICT REGISTRY ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: DORIS BRIDGET BROWNE APPELLANT AND: ELIZABETH ANNE DUDLEY RESPONDENT JUDGES: MILES J, EINFELD J, O'LOUGHLIN J, COOPER J, WHITLAM J DATE: 16 MARCH 1998 PLACE: SYDNEY REASONS FOR JUDGMENT MILES J: The decision of the Court is that the application for leave to adduce fresh evidence on the part of the respondent should be refused on the ground that it has not been shown that reasonable efforts were made to adduce that evidence at the hearing. I do not agree with what has fallen from the other members of the Court. I am of the contrary view that the judgment of the Supreme Court was correct. The Master's reasons are expressed sufficiently clearly to make inevitable, in my view, a decision that the Master was in error in misapprehending a crucial part of the evidence, a part of the evidence which related both to liability and to contributory negligence. Although the Master enjoyed the usual advantages of a court of trial in seeing and hearing the witnesses, that advantage was according to the Master's expressed reasons affected by his mistaken but clear finding that the appellant's evidence was corroborated by the statement

made by the respondent to her insurer in the claim form in March 1993 a few days after the collision. The factual issue was essentially whether the collision occurred after the appellant had driven out on to the Barton Highway and stopped there or whilst her vehicle was still stationary behind the white broken line separating Kuringa Drive from the highway. If the collision occurred as the respondent alleged then it is conceivable that there was some contributory negligence on the part of the appellant as on the appellant's own account there could be no explanation of why she stopped after driving on to the highway. As the Master misunderstood what the respondent had said in her statement to the insurer the Supreme Court was in my view correct in concluding that the Master misused the advantage he otherwise had in finding the primary facts. The Master should have examined the evidence on the issue of where the conclusion occurred unaffected by the misapprehension as to what the respondent had stated in the report to the insurers. It is true, as has been submitted on behalf of the appellant, that there are parts of the form completed by the respondent which support the submission that the Master intended to include in his reasons reference to an admission by the respondent that she was at fault in that she "hit the car in front." It is true also that the appellant relied on a sketch plan, apparently drawn by the respondent on the same document, which shows the respondent's vehicle still partly behind the broken line at or immediately after impact. However, I ‑do not think that a proper reading of the Master's reasons indicates at all that he was intending to include a reference to these particular matters in his judgment and in his reasoning process. In any event, neither‑the admission of fault nor the sketch plan is inconsistent with the respondent's case that the appellant drove out into the highway before stopping. I would dismiss the appeal, confirm the decision of the Supreme Court setting aside the Master's decision as to contributory negligence and order a new trial on the issue of

­contributory negligence and damages, with the appellant to pay the costs of the appeal. The order of the Court then is that the appeal is allowed, the Court sets aside the decision of the Supreme Court of the Australian Capital Territory and remits the matter to that court for the continuation of the appeal on the question of damages. The respondent is to pay the costs of the appeal. Costs in the Supreme Court should be determined by the Supreme Court in the continuation of the appeal. [AFTER DISCUSSION] Costs of the notice of motion to be paid by the applicant on the notice of motion, that is the respondent to the appeal. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Miles Associate: Dated: 2 July 1998

GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY AG 55 of 1997 DISTRICT REGISTRY ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: DORIS BRIDGET BROWNE APPELLANT AND: ELIZABETH ANNE DUDLEY RESPONDENT JUDGES: MILES, EINFELD, O'LOUGHLIN, COOPER, WHITLAM JJ DATE: 16 MARCH 1998 PLACE: SYDNEY REASONS FOR JUDGMENT EINFELD J: This is an appeal from a judgment of a Full Court of the Australian Capital Territory Supreme Court (the Supreme Court) given on 20 June 1997. The appellant, the plaintiff below, was injured in a motor vehicle accident which occurred at or near the corner of Kuringa Drive and Barton Highway, Spence, in the ACT just prior to 4pm on 26 March 1993, when the front of a vehicle coming from behind her driven by the respondent collided with the rear of her car. She subsequently sued the respondent claiming damages for personal injury, the case, heard by the Master of the Supreme Court, being contested on all issues, that is the negligence of the respondent, contributory negligence of the appellant, and damages. In a judgment given on 10 May 1996, the Master awarded the appellant damages in a sum in excess of $400,000 plus costs. Before the Full Court the negligence of the respondent was, in my view quite rightly, conceded, so that the appeal to the Full Court was based upon three principal matters: first, the Master's failure to find any contributory negligence by the appellant; second, the Master's rejection of certain evidence sought to be led by the respondent; and third, the Master's

assessment of damages. The Full Court dismissed the respondent's appeal as to the rejection of the relevant evidence but allowed new trial. It held that the Master misapprehended the appellant's evidence on the subject. The Full Court stated: It is apparent that his (the Master's) misapprehension substantially influenced his decision of no contributory negligence on the part of the respondent (Mrs Browne). The appeal as to the quantum of damages was not dealt with. The appellant pursues here only the appeal against the Full Court's determination on the question of contributory negligence. The evidence question was conceded and the parties agreed, correctly as I believe, that it is not appropriate for this Court to determine the quantum appeal. There was and is no dispute that at the time of her accident, the appellant was driving a 1979 Ford Fairlane and the respondent a 1983 Honda Civic. There is also no dispute that both vehicles were, juist prior to impact, in Kuringa Drive intending to turn left into the Barton Highway. At this intersection, according to the evidence, Barton Highway has two lanes in each direction and runs generally north‑south while Kuringa Drive runs generally west‑east. Vehicles travelling as were those driven by these parties enter the Highway by a small spur or feeder road that involves a left veer or bend off Kuringa Drive. When they reach the highway there is a broken white line on the road which they must cross to enter the highway while veering or turning further to the left. The appellant's case was that her car was standing at the white line when she was hit from behind by the respondent's car. The respondent's version took more than one form but she said at trial that the appellant had crossed the white line and was actually headed for or had entered the outer or right hand lane closest to the centre of the road when she suddenly and inexplicably stopped, such that the impact inevitably had to occur. The relevant passage of the Master's reasons commences at page 718 of the appeal book. After summarising the appellant's case, he said that the appellant:

... was about to proceed left into the Barton Highway when she was struck from the rear with such force that her vehicle was pushed forward and into the first lane of the Barton Highway. In his summary of the respondent's case at pages 719‑720, the Master recorded her version as being: ... the plaintiffs car stopped at the intersection, and then proceeded to enter the Barton Highway. The defendant stopped and then proceeded to follow, at which point the plaintiff suddenly and for no apparent reason stopped her vehicle in about the middle of the first lane of traffic. I pause to observe that in a diagram which was presented at the trial of which the respondent was the author, she actually placed the appellant's vehicle in or across the second lane of traffic but it seems likely that this was the respondent's view after the impact and not before. The Master then proceeded: There was at this point, says the defendant, no alternative to a collision. It is clear that that statement, that is, that there was in the respondent's view no alternative to a collision at the time when the impact took place, was the Master's relation of the respondent's denial of negligence. At this point and for some time later, the Master was still dealing with the contested issue of negligence and not with the question of contributory negligence. He then went on: While I have no doubt that the defendant was trying to be helpful and truthful in giving her evidence, I am concerned that there have been several versions of her recollections of the accident. In a signed declaration to her insurance company within days of the accident she acknowledged that she, the defendant, was at fault and acknowledged a traffic infringement notice had been issued to her for negligent driving, a notice which she did not contest and in fact paid. To the extent that that statement appears to indicate that the acknowledgment of the traffic infringement notice had taken place in the declaration to the insurance company, the statement is in error. But there was a traffic infringement notice, it was issued for negligent driving, she did not contest the notice and in fact paid the fine. I continue from the Master's judgment:

Her diagrammatic reconstruction of the accident has had at least three versions ‑ that given at the trial, that in the report to the insurance company, and that provided by way of interrogatory. I have difficulty with her version of events given at the trial, as the proposition that she stopped, accelerated to 10 to 15 kilometres an hour and then braked before striking the plaintiffs vehicle, all within about one to one and a half car lengths is hard to accept. I also have difficulty with her placement of the plaintiff's car in the diagram - that is her diagram at the trial - which she now says represents the true events of 26 March 1993. This is both because it places the plaintiff's vehicle in a position which is inherently unlikely, heading across the first lane of the Barton Highway as if it were driving towards the centre verge, and because it places the plaintiffs car in such a position that it would have blocked both lanes of Yass bound traffic on the highway after the accident. The appellant called a Reverend Morris, an apparently independent witness who came on the scene very shortly after the impact. Without going to the detail of Reverend Morris' evidence, it may be said that it generally supported the appellant's version of the facts. Whilst the acceptability of this evidence was not mentioned specifically by the Master, it appears that he accepted Reverend Morris on two other matters at page 719 and 720 of the appeal book, firstly in relation to the damage to the appellant's vehicle after the accident, and second, in relation to his observation that her vehicle could not have been blocking, even in part, the right hand or outer lane of the Barton Highway because he recalled vehicles passing freely in that lane without having to go onto the median strip. Reverend Morris also drew a diagram and entered the vehicles upon it. In so doing he almost precisely supported the appellant's case. It should be assumed that the Master accepted Reverend Morris' evidence, in preference o the respondent's, wherever the two conflicted. The Master went on at page 721: On the whole I prefer the evidence of the defendant's first statement to the insurance company, which is broadly consistent with the plaintiffs version of events. On this version, ‑ that is the plaintiffs version ‑

the plaintiff was stationary behind the broken white line on the turning lane of Kuringa Drive when she was struck from behind by the defendant. I omit a sentence and go on: I am able to conclude from all of this, on the balance of probabilities, that the accident occurred in circumstances broadly as described by the plaintiff, and I find accordingly. It follows from this that liability is established, as the plaintiff was stationary at the point of intersection and was struck from behind. Up to that point it is clear to me that the Master was dealing entirely with the issue of negligence and everything he has said must be taken in that context. He concluded his judgment on the question of liability by adding these words: Accepting these facts, there is no contributory negligence established. In my view that statement is quite unexceptionable. If the plaintiffs version is accepted as was found, then there was no question of contributory negligence and the case on liability ends there. The difficulty that has been caused by the judgment is the opening words of the paragraph to which I have just referred where the Master stated that, on the whole, he preferred "the evidence of the defendant's first statement to the insurance company, which is broadly consistent with the plaintiff's version of events ". According to the evidence, the "statement to the insurance company" was a claim form which was apparently completed by the respondent. On that form she described the time and place of the incident and answered a question: 'Whom do you consider at fault?" with the word "myself'. In answer to a question "Why?" she said "Hit car in front". In answer to a request that she state fully and clearly how the incident occurred, the respondent wrote as follows: Car A was travelling East along Kuringa Dr when at the intersection of the Barton Highway I stopped at the stop sign. Then proceeded forward after car one had proceeded forward on to the Barton Highway. Accident occurred when car one stopped for no apparent reason causing me to collide with car one's rear.

It is true, as the Full Court said, that if the "first statement to the insurance company" meant that narrative in the claim form, then the respondent's statement and the appellant's version of events are not broadly consistent or the same at all. However, with all respect, I believe that the Full Court took the remark and admittedly ambiguous and unfortunate use of words out of context and otherwise than was intended. Because the matter is so obvious and clear, it is my opinion that the Master could not have meant the claim form narrative when he was talking about the "first statement to the insurance company". I think that he was referring to the statement that the respondent was at fault when she ran into the rear of the vehicle in front and the diagram which she completed at the foot of the claim form which indicated that the appellant's vehicle had partly entered the left lane of the Barton Highway and the respondent's vehicle was about half‑way across the dotted white line at the time of impact. That view given to the insurance company is broadly consistent with the appellant's version of events, and the earlier part of the Master's consideration of the issue of liability, that is, of the issue of the respondent's negligence, gives support to that interpretation. With respect, the Full Court also wrongly attributed to the Master the making of an unwarranted inference from the respondent's payment of the traffic infringement notice for negligent driving. The Full Court said: Whilst that may have amounted to an acknowledgment of negligence, it could not be conclusive of the issue of contributory negligence. Too much weight appears to have been given to the fact of payment of the infringement notice. This a further ground for review of the Master's finding. In my respectful view, the Master did not place any inference on the respondent's payment of the traffic infringement notice in relation to the issue of contributory negligence, still less did he use it as conclusive on that issue. It seems to me to have been a passing remark which did not even influence his finding on contributory negligence but only assisted him, as was correct, on the issue of negligence of which it was an admission. In my view he did not place any weight on the fact of payment of the infringement notice on the issue of contributory negligence. For those reasons, as it seems to me, the Full Court has erred in principle in its approach to the Master's judgment. I therefore propose that the appeal should be upheld and the Full Court's

judgment set aside. I would remit the matter to the Supreme Court to deal with the appeal on the question of damages. The respondent should pay the costs of the appeal. Earlier costs should be determined by the Supreme Court when the appeal to that Court is completed. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Einfeld Associate: Dated: 2 July 1998

GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY AG 55 of 1997 DISTRICT REGISTRY ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: DORIS BRIDGET BROWNE APPELLANT AND: ELIZABETH ANNE DUDLEY RESPONDENT JUDGES: MILES J, EINFELD J, O'LOUGHLIN J, COOPER J, WHITLAM J DATE: 16 MARCH 1998 PLACE: SYDNEY REASONS FOR JUDGMENT O'LOUGHLIN J: I am satisfied that this court should interfere with the decision of the full court. In my opinion the full court failed to give appropriate consideration to the role of the Master as the primary finder of facts. Moreso, I am satisfied that the full court inadvertently overlooked the importance of the primary fact finder in matters of credit. There is ample authority to the effect that an appellant court should not interfere with findings of facts and findings of credit casually or as a matter of discretion. But a full court can, of course, draw inferences of fact as readily as a trial judge. That is not in issue here and I need not repeat the facts. There is a clear cut issue whether to believe the plaintiffs version, the defendant's version or to make a finding that he was unable to choose between them. The master chose the plaintiff's version. There was evidence that justified the making of that finding. The finding should not have been overturned except in a case where it was unsupported by the evidence or where the evidence to the contrary was such as to warrant

interference. In my opinion the judgment of the Master read as a whole leaves it clear that the Master accepted the plaintiff in preference to the defendant. His finding that the defendant ran into the back of the plaintiffs stationary car justified a finding of negligence; it also explains why there was not a finding of contributory negligence. The offending sentence which Einfeld J has referred is not to be read in isolation. Difficult though it is to understand what the Master had in mind when writing this sentence, the fact remains that it appears in his judgment after he had come to his conclusion that he found difficulties in accepting the defendant's version of events. I also agree that the appeal should be allowed and the order of the full court should be set aside. I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin Associate: Dated: 2 July 1998

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY SCA 437 OF 1994 SCA 35 OF 1996 ACTG 55 OF 1997

BETWEEN: DORIS BRIDGET BROWNE

Applicant

AND: ELIZABETH ANNE DUDLEY

Respondent

JUDGE: MILES, EINFELD, O'LOUGHLIN, COOPER, WHITLAM JJ

DATE: 16 MARCH 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT I too would dismiss the appeal generally for the reasons given by the presiding judge. I have nothing further to add. I certify that this is a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper

Associate: Dated: 16 March 1998

IN THE FEDERAL COURT OF AUSTRALIA

australian capital territory AG 55 of 1997

DISTRICT REGISTRY

on appeal from the supreme court

of the australian capital territory

BETWEEN: doris bridget browne

AppELLANT

AND: elizabeth anne dudley

Respondent

JUDGES: MILES, Einfeld, O'Loughlin, cooper, WHITLAM JJ

DATE: 16 march 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT WHITLAM J I agree with the reasons for judgment of Einfeld J and O'Loughlin J and with the order they propose. The matter should be remitted to the Full Court for hearing and determination of the appeal in respect of the quantum of damages awarded by the Master. I would add only this further comment. The sentence upon which the Full Court based its conclusion that the Master had misapprehended the respondent's evidence at the trial should not be looked at out of context. The whole of what the Master said at pp 5-8 of his reasons for judgment on the question of liability needs to be considered. It is true, as the Full Court said, that the statement by the respondent in the claim form was not broadly consistent with the appellant's version of events. But the Master's statement cannot be read as reflecting his view that in some way the appellant's evidence was corroborated by what the respondent said in the claim form. That becomes apparent when one looks at how the Master records at pp 6-7 the respondent's version of how the accident occurred, where the word "proceed" is used in relation to the movement of both the appellant's vehicle and her own vehicle. That is not the language that the respondent used in her evidence-in-chief when describing her movements or the movement of the car in front of her. It appears to have been drawn from the claim form. In my view, it is clear that it was this version, the inconsistent version in the claim form, which the Master rejected. I certify that this and the preceding one (1) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam Associate. Dated: 2 July 1998