BELL v VEIGEL; BELL v BROUGHTON; BROUGHTON v VEIGEL [2008] NSWCA 36 (20 March 2008)

Last Updated: 3 April 2008

NEW SOUTH WALES COURT OF APPEAL

CITATION:
BELL v VEIGEL; BELL v BROUGHTON; BROUGHTON v VEIGEL [2008] NSWCA 36


FILE NUMBER(S):
40470/2005
40471/2005
40499/2005

HEARING DATE(S):
29, 30 August 2007

JUDGMENT DATE:
20 March 2008

PARTIES:
Elwin BELL
Jamie DEE
John VEIGEL bht Paula TALLEN
The Nominal Defendant
Dean Leslie DAVIS
Christine BROUGHTON

JUDGMENT OF:
Mason P Giles JA Tobias JA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 8279/2002
DC 1082/2004



LOWER COURT JUDICIAL OFFICER:
Coorey DCJ

LOWER COURT DATE OF DECISION:
12 May 2005


COUNSEL:
P R Garling SC/ C Thompson (Bell and Dee)
R Letherbarrow SC/ A Stone (Veigel)
L M Morris QC/ J M Morris (Broughton CA40470/05,CA 40499/05)
R McIlwaine SC/ J Davidson (Broughton CA40471/05)
R Stitt QC/ D Wilson (The Nominal Defendant)
R Seton SC/ P Carr (Davis)

SOLICITORS:
Carrolll & O'Dea (Bell and Dee)
Stacks Goudkamp (Veigel)
Moray & Agnew (Broughton, CA40470/05, CA40499/05)
Keddies Litigation Lawyers (Broughton, CA40471/05)
Sparke Helmore (The Nominal Defendant)
Ferguson Bolton (Davis)


CATCHWORDS:
APPEAL AND NEW TRIAL – New trial – in general and particular grounds – particular grounds – verdict against evidence or weight of evidence – verdict against weight of evidence – when new trial granted – preponderance of evidence in favour of unsuccessful party – where findings on liability not necessarily supported because of gaps within the evidence
APPEAL AND NEW TRIAL – Appeal – general principles – interference with judge’s findings of fact – proof and evidence – other matters – where gap in evidence supporting findings of liability should have been addressed – where conflicting evidence of witness relied upon should have been addressed
PROCEDURE – Judgments or orders – amending, varying and setting aside – other cases adequacy of reasons – whether complainant should have brought adequacy of reasons up prior to entry of judgment – whether complainant should have brought it up when opportunity was given
TORTS – Negligence – contributory negligence – particular cases – road accident cases – whether failure to give way – whether defendant not keeping proper lookout – where defendant has right of way

LEGISLATION CITED:


CATEGORY:
Principal judgment

CASES CITED:
Adami v The Ethical Standards Officer [2005] EWCA Civ 1754
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Martinez v Western Australia [2007] WASCA 143, 172 A Crim R 389
Smith v Australia and New Zealand Banking Group Ltd, [1999] NSW Conv R 56,904 (55-884)[1996] NSWSC 86; , [1996] 7 BPR 15, 069
Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640
Whisprun Pty Ltd v Dixon (No 2) [2004] HCA 2, 78 ALJR 321

TEXTS CITED:


DECISION:
Each appeal and Mrs Broughton's cross-appeal upheld with costs.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40470/2005

CA 40471/2005

CA 49499/2005

MASON P

GILES JA

TOBIAS JA

Thursday 20 March 2008

Elwin BELL & Anor v John VEIGEL & Ors
Elwin BELL & Anor v Christine BROUGHTON & Ors
Christine BROUGHTON v John VEIGEL & Ors

JUDGMENT

1 MASON P: These appeals and cross-appeals arise out of a motor vehicle accident on Sunday 11 February 2001.

2 Mr Veigel was driving northwards down a long hill about 10 kms out of Bega. It was daylight and conditions were fair. There was a single lane of traffic travelling in his direction down a section of road that curved to the right. On the other side of unbroken lines there were two lanes heading uphill in the southbound direction. They were divided by broken white lines one of them being a specified overtaking lane.

3 Mrs Broughton was driving her Holden Commodore sedan, travelling south. She crossed to the incorrect side of the road and collided head on with Mr Veigel. She said that she had been forced out of the overtaking lane onto the incorrect side of the road when a truck towing a caravan in the nearside lane pulled out without indicating its intention to do so or yielding to her right of way.

4 Mrs Broughton and Mr Veigel were injured, Mr Veigel catastrophically so.

Proceedings, issues and background facts

5 Proceedings commenced by Mr Veigel and Mrs Broughton were heard concurrently in the District Court.

6 In his third amended statement of claim (filed on the twentieth day of the trial when Mr Davis was belatedly joined), Mr Veigel sued Mrs Broughton plus three sets of defendants joined in the alternative as or on behalf of the owner/driver of the vehicle that caused Mrs Broughton to swerve. These were the Nominal Defendant as representative of an unidentified owner/driver; Mr Elwin Bell and Mr Dee and as owner and driver respectively of a truck towing a caravan; and Mr Davis as driver of a truck towing a caravan. The vehicles and trailers were identified in the pleadings by registration number, except for the one attracting the joinder of the Nominal Defendant.

7 The caravan claimed (in the alternative) to have been towed by Mr Elwin Bell’s truck was registered F34 209. Insurance and registration documents establish that a Royal Flair caravan with that registration number has been owned by Mr Owen Bell since 1992 (see esp Blue 426, 447, 601). Owen Bell is Elwin Bell’s son.

8 Mrs Broughton also sued the Nominal Defendant, Mr Dee/Mr Elwin Bell (hereafter Bell/Dee) and Mr Davis.

9 There were numerous cross-claims.

10 Two issues were fought vigorously in the 27 day trial: first, the identity of the owner/driver of the vehicle that caused Mrs Broughton to swerve (hereafter referred to as “the offending vehicle”); and secondly, whether Mrs Broughton was wholly or partly at fault in the circumstances.
11 Judge Coorey held that the offending vehicle was that driven by Mr Dee and owned by Mr Elwin Bell.

12 Mrs Broughton was also found to be negligent in “failing to see the right indicator flashing on the caravan for some considerable distance, and then accelerating alongside the truck and caravan to overtake”. Responsibility for the accident was ordered to be borne equally by Bell/Dee and Mrs Broughton.

13 In the upshot, verdicts for the defendant were entered in favour of the Nominal Defendant and Mr Davis in each proceeding. Mr Veigel recovered a verdict against the remaining defendants with liability apportioned as to 50% to Mrs Broughton and 50% to Bell/Dee. Mr Veigel’s damages were subsequently agreed at $4.5m.

14 Mrs Broughton recovered a verdict for damages to be assessed against Bell/Dee with a 50 per cent reduction for her contributory negligence. This Court granted leave to appeal to enable all liability issues to be determined at this stage.

15 The principal matter raised in the appeal of Bell/Dee is that the trial judge failed to resolve important issues agitated with reference to the identification dispute and/or expose his reasoning process with regard to those issues. These appellants seek a new trial.

16 Mrs Broughton’s principal complaint is directed at the finding of negligence made against her. She contests the findings of primary fact and also the conclusion of negligence based upon them. In the alternative, she complains about the adequacy of the reasons referable to the finding of negligence against her.

17 The Nominal Defendant, Mr Davis and Mr Veigel defend the judgment, arguing that it rests upon unchallengeable credibility-based findings and adequately expressed reasoning.
18 It was common ground that Mrs Broughton had been following a slow-moving stream of traffic for several kilometres along the Princes Highway with no opportunity to overtake. There were a number of sideshow trucks and caravans and about five motor vehicles. This traffic had banked up behind the heavy vehicles.

19 When, shortly after crossing Stoney Creek, the southbound road began to rise and divided into the “slow” and “overtaking” lanes, the sideshow trucks and caravans moved into the left hand lane and the stream of vehicles ahead of Mrs Broughton commenced passing them in the overtaking lane. A Landcruiser was immediately ahead of her in this lane.

20 Mrs Broughton travelled about 350 metres along the overtaking lane to a point where the climbing road started to turn fairly sharply to the left. She was overtaking what she described as the second sideshow vehicle when (according to her evidence and that of other witnesses) it started to move into her lane forcing her to swerve to the right and into the path of Mr Veigel’s vehicle. This was nowhere near the point where the double lanes heading south converged.

21 There is no dispute that one of the sideshow trucks carrying a fold-up children’s ride and towing a caravan in the slow lane was being driven by Mr Dee and that it was at some stage being followed by a Kenworth semi-trailer carrying a Cha-Cha ride associated with the Bell Amusements Sideshow Troupe and driven by Mr Owen Bell. The people from Bell Amusements were progressing from the Nowra Showground to the Bega Showground.

22 The statements of claim filed on behalf of Mr Veigel and Mrs Broughton respectively alleged that Mr Dee was driving a truck registration number FGZ 993 owned by Mr Elwin Bell, towing caravan registration number F34 209. The appellants Bell/Dee admit that Mr Dee was driving that very truck and towing that very caravan. They say that the offending truck and van identified by the key witnesses (Mrs Broughton and Mr Lear) was a different truck and van. These appellants had claimed that the offending vehicle was being driven by a driver for whom the Nominal Defendant is responsible because the vehicle remains unidentified despite due inquiry and search. Alternatively, and in the light of Owen Bell’s evidence, they claimed that the offending vehicle was being driven by Mr Davis.

23 Considerable evidence was led as to ownership of trucks and caravans and the registration and insurance arrangements connected with them. Particular focus was upon the caravan that Mr Dee and Mr Bell said was being towed by Mr Dee on the day of the accident.

24 Six months after the accident Queensland police interviewed Mr Dee and Mr Owen Bell at Mt Isa. Owen Bell’s “Royal Flair” caravan bearing registration F34 209 was photographed (Black 599, Blue 992-5). The photo depicts a white caravan with windows at the rear. Indicator lights are in vertical panels at either side. The words “Royal Flair” appear in the middle of the rear. There is also a sign towards the bottom of the caravan “CAUTION LONG LOAD”.

25 The pictures of this van that were shown to Mrs Broughton and Mr Lear were taken sometime later in 2001, evidenced by the fact that some of the first two words of “CAUTION LONG LOAD” had peeled off. (See Blue 1038) But the van depicted is clearly the same as the one earlier photographed by the police.

26 The Nominal Defendant tendered in its case a bundle of records containing registration and insurance details for caravan chassis number 6D9T21RTAM. It was, I understand, common ground that this was the caravan belonging to Mr Owen Bell depicted in the photographs taken by the police in Mt Isa and the later photographs shown to Mrs Broughton and Mr Lear.

27 Public records (Blue 426, 447, 601) show that a 1991 Royal Flair caravan with the stated chassis number had been registered (in Victoria) as owned by Owen Bell at all times between 1992 and 2004. The registration particulars were renewed annually. The registration number of the van was D94 306 prior to 1996; from 1997 onwards it was F34 209. The van is described as a 1991 Royal Caravan. The original application to register Owen Bell’s ownership of the vehicle with the number F34 209 in lieu of D94 306 is dated 18/10/96 (Blue 601).

28 Also in evidence (Blue 433) are certificates showing Mr Owen Bell as the policy holder of comprehensive insurance of that same caravan spanning the period 1992-2002 and 2004-2005.

29 There are other records indicating that Mr Bell arranged repairs to the particular caravan in 1994 and 2000 (Blue 444-6).

30 In my view, these records show incontrovertibly that Owen Bell owned a Royal Flair caravan with registration F34 209 between 1996 and at least 2004, ie at the time of the accident.

31 The other nominated driver, sued in the alternative, was Mr Dean Davis. He was said to have been driving motor vehicle registration number 497 EZM towing a caravan trailer registration number 001 QCM. Mr Davis was joined when the trial was well advanced. It became necessary to add him as a defendant after Mr Owen Bell had given evidence suggesting that the vehicle that Mrs Broughton was overtaking at the time of the accident was driven by Mr Davis. Mr Davis was known to Owen Bell as a fellow showman, but he was not a member of the “Bells Amusements” troupe.

32 Mr Davis’ ownership of a truck and caravan with these registration particulars was never in dispute. The details were presumably obtained by search at the appropriate registry or perhaps by enquiry of Mr Davis by the police. No witness testified to having observed these registration particulars on the day of the accident.

33 Mr Owen Bell testified that he saw Mr Davis driving away very shortly after the accident had happened. Details of the contested identification are set out below. The presently important matter is that Mr Owen Bell said that Mr Davis was seen driving southward to the show at Bega, like the members of the Bell’s Amusements troupe who were also on the road.

34 Mr Davis’ case was that, although he left the Nowra Show on the day of the accident, he had driven northward to Sydney and was nowhere in the vicinity of Bega at the time of the accident. His alibi was partly supported by the evidence of his grandfather. The trial judge found that he was “not satisfied, on the evidence, that at the time of the collision Mr Davis was in the vicinity of the collision”. The brevity of this statement is one basis of the appeal relating to inadequacy of reasons.

35 In this Court, the Nominal Defendant did not submit that Mr Davis was the driver. However, Bell/Dee continue to do so.

36 As will become apparent, there is overlap between the submissions challenging the fact-finding of the primary judge and those contending for a new trial based on absence of reasons. This is understandable when it is recognised that paucity of reasons may indicate a failure to grapple with critical issues as well as being a miscarriage in its own right.

37 The central conundrum regarding the identity of the driver of the offending vehicle stems from the following:

• the number of the caravan towed by the truck driven by Mr Dee at the time of the accident and observed at the top of the hill by the independent witness Mr Lear was indisputably F34 209;

• Mr Lear was adamant that the caravan whose number he recorded when it was parked at the top of the hill shortly after the accident was the caravan he had observed earlier causing the accident.

• Mr Owen Bell had been the registered owner of a white Royal Flair caravan registered number F34 209 since 1992 (see above). The caravan was his residence as the troupe moved around Australia.

• Mr Dee was driving a truck registered FGZ 993 pulling Owen Bell’s white Royal Flair caravan registered F34 209 when the police interviewed the two men in Mt Isa in August 2001 and took the photographs that became MFIs 9 and 10 (Ex 5-D3/D4) (Blue 1042). The same truck and caravan were photographed on 18 November 2001 (possibly by an insurance investigator) and that photograph became MFI 14 and later Ex 2-D3/D4 (Blue 1037-8).

• Yet Mrs Broughton and Mr Lear were quite sure in their testimony that the offending caravan they had seen causing the accident was different in various particulars from that photographed. Likewise for the truck.

Principal witnesses

38 Mr Veigel’s injuries precluded him from being a witness.

39 The statements and evidence of the principal witnesses may be summarised as follows.

(i) Mrs Broughton

40 Mrs Broughton told the police officer who arrived at the accident scene:

I was overtaking two trucks I was halfway past the first one. When the second one went to overtake the first one I braked and swerved and then I just had nowhere to go. (Blue 10)

41 On 28 February 2001 she provided a statement to the police (Blue 660). She said that there were about four trucks towing caravans ahead of her when the road divided near the bottom of the hill. As the trucks in front moved to the left lane she saw that there were actually two cars between the last and second last trucks. They overtook the group and she saw the five cars in front of her move to the right hand lane and begin to overtake. She did likewise and overtook the closest truck with a carousel in it which was towing a caravan. She accelerated to go up the hill, doing about 100kph.

42 She recalled being behind a new light blue Ford that was about two or three car lengths in front of her car. She came up to the back of the “next truck towing a caravan”. As the bonnet of her car got just past the rear of the caravan she noticed that the truck’s large side mirror came into her vision. All of a sudden the truck was moving across into her lane. Her son yelled out “Mum”. She moved instinctively to the right, braking at the same time. The accident then happened.

43 Mrs Broughton said that a man spoke to her at the accident scene, telling her he was in one of the trucks and he was with the show group. He was described as having blond hair and a stud in his lip. He told her that he had a car similar to hers following him (Blue 662). Later evidence disclosed that this was Mr Owen Bell.

44 On 10 May 2001 Mrs Broughton provided a statutory declaration to an insurance investigator. She mentioned a group of five “carnival trucks” and referred to the offending vehicle as the second last truck. She stated:

I remember when the Ford was about level with the middle of the truck/caravan combination of the third last truck and the front of my vehicle was just passing the rear of the caravan being towed by the second last truck in the group, without warning I noticed the drivers side (offside) external mirror of the truck alongside me, protruding into my view as I was looking ahead. It was in front and ahead of me and this resulted in my looking to my left and I noticed that the caravan was moving towards my car and was closer than one foot from the passenger side of my car. About the same time, Jacob yelled out ‘Mum’. I reacted by steering instinctively slightly to the right and about the same time, I braked.

45 Earlier in the statement she said that all of the carnival trucks were towing long caravans. Her description of the offending vehicle was as follows:

I recall noticing that the second last truck in the pack was laden with something but it was tarped over. I remember some form of metal wrapped over the front part of the rear tray, which appeared to be part of the truck, and it too was towing a caravan. That truck was predominantly white in colour, unknown make or model, but it appeared to be a cab-over with a flat nose cabin, the rear section being a flat table top. I did not notice whether or not the truck had any sign writing or like and I don’t recall noticing any else distinguishing about it.

46 At the trial Mrs Broughton was a little uncertain about the number of trucks towing caravans that moved into the slow lane. She agreed with counsel for the Nominal Defendant that there were three (Black 535). She had earlier said that the trucks were sideshow vehicles because you could see the rides on some of their backs (Black 519).

47 Mrs Broughton was unable to describe any distinguishing features of the offending vehicle. She referred to it as a “sideshow truck”. The caravan was described as “big and wide ... It looked like a big, white box” (Black 493, 494). There was another truck pulling a caravan directly in front of it.

48 Mrs Broughton was shown in chief the photograph taken in November 2001 (MFI 14, later Ex 2-D3/D4) (Blue 1038)). The photograph depicts a large oblong shaped white caravan. It has windows at the rear. The words “Royal Flair” appear somewhat indistinctly at the rear. There is a registration plate F34 209, blue lettering on a white background. There are vertical reflectors and indicator panels on either side as well as a partially damaged sign across the entire width of the rear (“Caution long load”). It is common ground that this is a photo of the caravan still in the possession of Mr Dee when he was interviewed by the police at Mt Isa in August 2001. (Mr Dee stated it was the van he was towing at the time of the accident, and that it is the mobile home of Owen Bell.)

49 Mrs Broughton said that she was quite sure that the caravan in the photograph was not the caravan that came over into her lane (Black 512, 560). She said that the rear of the caravan in the accident was blank or white (Black 545) and that it had no windows (Black 546. See also Black 559-60).

50 As to the dynamics of the accident, Mrs Broughton said that the indicator of the caravan of the offending vehicle was not flashing before she reached it (Black 493). The bonnet of her car got just past the rear of the caravan when the truck’s large side mirror came into view (Black 524, 527). Mrs Broughton agreed in cross-examination that she had never said this before in any of her four statements, adding that she had possibly never been asked that question (Black 568, 573).

51 It was put to Mrs Broughton that she had attempted to overtake the caravan at a time when it was completely in the overtaking lane (Black 548). She denied this. This suggestion by the cross-examiner is quite improbable and is effectively contradicted by evidence showing Mrs Broughton’s skid marks as commencing from wholly within the overtaking lane.

(ii) Mr Jamie Dee

52 Mr Dee said that he was driving a truck carrying a fold-up children’s ride, pulling a caravan (Black 698). This was the caravan later photographed in November 2001 shown in MFI 14, Ex 2-D3/D4 (see eg Black 785). The van belonged to Owen Bell and its registration number was F34 209. It has “Royal Flair” written on the back. Mr Dee said he did not own and had not seen a caravan with a capital M in scrolled writing (Black 720) (ie an aspect of the offending van as described by Mr Lear).

53 Mr Dee gave evidence that he knew nothing about any accident until he stopped off the road at the top of the hill south of the accident site. He first learnt of the accident when he received a call on his CB radio from Mr Owen Bell who was then behind him in the slow line of traffic driving a large Kenworth semitrailer. Mr Bell told him “I think my car’s been in an accident”. At this stage Mr Dee was about 100m ahead of Mr Bell’s truck. Mr Dee stopped his vehicle at the top of the hill and was joined a minute or so later by Mr Bell who then ran down the hill towards the accident site. Mr Dee said that he had nothing to do with the accident involving Mrs Broughton’s car (Black 743).

54 It is common ground that even if Mr Dee was the driver of the offending vehicle he might not have known of the accident that he had caused. Nevertheless, the Nominal Defendant, Mr Davis and Mr Veigel contend that Mr Dee is likely to have known that he caused the accident from the outset.

55 Mr Dee said that, as he jumped out of his truck when he pulled over onto a gravel driveway a couple of hundred metres away, he “heard like a truck coming up the hill and it went flying past me doing about 80, 90 kilometres an hour” (Black 701). He described it as a little white truck and caravan. He had not seen it before the accident (Black 721). He adhered to this evidence in cross-examination (Black 741-2).

56 This evidence was consistent with the statement given by him to the Mt Isa police on 9 August 2001 (Blue 966). In that statement he denied any knowledge of the accident prior to receiving the CB message from Owen Bell. When confronted with the assertion that a witness had provided Owen Bell’s caravan number as that of the van involved in the accident, Mr Dee said (Blue 977):

I don’t think so because I was already at the top of the hill and I never even seen none of the accident. When I got to the top of the hill I seen this little truck and caravan go flying passed (sic). That was it.

57 He said in the statement that the caravan was smaller than Owen Bell’s van. It was not from Bell’s Amusements. “I think it might have been personal. I just seen it that quick, it just flew past.” (Blue 984).

58 This statement probably implied Mr Dee’s belief that it was the offending vehicle that flew past. But it did not suggest that Mr Dee had seen the accident. The statement also implied that Mr Dee knew nothing about the identity of the owner or driver of the truck that flew past.

59 As far as I am aware, this evidence of the police statement was received only as to the issue of due inquiry and search (see Black 598). Key portions of it were put to Mr Dee in cross-examination, but his stance was essentially that he could give little in the way of a description of the truck and caravan that overtook him (Black 741-2). He never suggested knowing who was the driver.

60 Mr Dee agreed that he had spoken to Owen Bell about the accident since the accident, including discussion about the “little truck and caravan” (Black 748). But he gave no evidence identifying Mr Davis as the driver. This is at least curious in light of Owen Bell’s evidence (below) that the two men had identified Mr Davis as the driver and had discussed this matter on the day of the accident (Blue 776, Black 1052).

61 When interviewed by the police at Mr Isa, Mr Dee described the caravan he was driving at the time of the accident and he told the police that it had no window at the front or back.

62 Mr Dee agreed at the trial that his answer about the absence of back windows was false, but maintained that he had been mistaken. At the time of the Mt Isa interview the caravan was about a five minute walk away from the police station (Black 784). Furthermore, Mr Dee knew that the police came and took photographs of the van after he had been interviewed (Black 784-5). Senior counsel for the Nominal Defendant pressed him to admit that he had given deliberately false evidence on this matter, but he did not retreat.

63 Mr Dee agreed that the caravan he towed was off the road for repairs for a week or may be two weeks possibly in November 2000 (Black 743). But the van was back on the road at the time of the accident (Black 750).

64 Mr Dee was questioned about the notion of “double tripping”, a practice said by the cross-examiner to involve more caravans than registered number plates (Black 718). Mr Dee said that he did not know about that and that the only expression he knew of double tripping was with a prime-mover “when we go back to pick up another trailer when we haven’t got enough drivers”. The witness firmly denied that he knew of any practice of double tripping that would have involved changing number plates when there were more vehicles than registered number plates (Black 719).

65 Mr Dee said that the Bell’s Amusements convoy that was moving from Nowra to Bega at the time of the accident involved possibly four caravans being towed by four trucks as well as other trucks towing rides or transporting rides (Black 751).

66 By the time he came to give evidence in 2004 Mr Dee would have known that the vehicle he was driving at the time of the accident was insured. Also by that time he had left Bell’s Amusements because of a misunderstanding with Owen Bell’s brother (Black 755). Matters ended up with “a bit of a punch on and a bit of a scuffle” (Black 757). In light of these matters it was argued by those representing his interests that he had no motive to give false evidence.

(iii) Mr Owen Bell

67 Mr Owen Bell gave a statement to the police on 13 February 2001, two days after the accident (Blue 728). He described himself as a travelling showman with Bell’s Amusements, a company owned by his parents. He was driving a Kenworth semitrailer that was towing a trailer with the Cha Cha ride on it. He was accompanied by his girlfriend Melissa. He normally travelled about 10 minutes behind Mr Dee who drove a truck pulling his (Mr Bell’s) caravan.

68 Mr Bell was driving in the slow lane up the hill. According to the statement, he looked in his rear vision mirror and saw

a small truck like a white Toyota Dyna which was towing a caravan [that] had moved up beside me and was passing me in the right lane. The Toyota Dyna was moving a lot quicker than me. He passed me and I had another look in my rear vision mirror and saw a white Datsun station wagon, which was going the opposite way to me, skidding along the guardrail. ...

69 Mr Bell looked ahead and then looked backwards through his rear vision mirror. He saw a dark green Holden Commodore that was travelling south going across to the wrong side of the road and hitting the front of the Datsun. He heard a loud bang and thought that the Commodore was his. He owned a car that was almost the same and it was being driven behind him by “a bloke that works with us, Joel Gilmore”. Mr Bell got straight on to the CB radio and told Mr Dee to stop at the top of the hill because his (Bell’s) car was in an accident.

70 Mr Bell said in the statement that he stopped his truck at a “pull off” near the top of the hill, near where Jamie Dee was stopped. “Jamie, Melissa and I ran down the hill to where the accident was” (Blue 729). He referred to having spoken with the driver of the Commodore in the accident, obviously Mrs Broughton.

71 In this original statement given to the police Mr Bell said (Blue 730):

The Toyota Dyna truck that passed me just before the accident was an older model, probably around the 1980 mark somewhere. It was white and had a white body. I don’t know if it was a pantech. The caravan it was towing was only a short one, about 12 foot long, from what I remember about it. I think it was white, or a light colour and it might have had a green and brown stripe on it.

72 Nothing is recorded that would suggest that Mr Bell knew anything about the identity of the driver of the Dyna truck.

73 On 8 August 2001 Mr Bell was interviewed at the Mt Isa police station (Blue 683). His recorded description of the accident was:

There was about four or five cars behind me (indistinct). Next thing a truck come up the side of me and by the time I looked back in the mirror, I seen a car straight on, another car hit him.

74 Mr Bell said that Mr Dee was driving “the caravan truck” ahead of him. The truck belonged to Mr Bell’s father. It was “here at this show” (ie at Mt Isa). The truck was towing Mr Owen Bell’s caravan. “I live in it 12 months a year. It’s me house”.

75 During this interview the police told Mr Bell that the caravan suspected as having been involved in the accident was registered in his name (Blue 691).

76 When asked by the police about the Toyota Dyna referred to in the earlier statement, Mr Bell said that this vehicle did not stop but kept going. Once again he did not identify the driver whom he was implying was responsible for the accident. Indeed, his recorded answer (at Blue 693) refers to “whoever was driving the truck”. He said that “they kept going” and did not stop (Blue 693).
77 Mr Bell’s third pre-trial statement was made on 29 January 2004, apparently to an insurance investigator (Blue 772). In it he provided details about the practices of those associated with Bell’s Amusements. He stated that:

Jamie Dee drives a FD Hino tray truck which tows my caravan. The back of the caravan has the words Royal Flair sticker and there are two windows at the back as well. It is a standard caravan that was built in Melbourne by Jack Simpson some ten years ago.

78 Mr Bell gave the following description of the accident (Blue 775):

Half way up the hill I noticed a white little truck and off white caravan with brown stripes pull out to overtake in the right lane. I had a full view of this through my side mirror... As this vehicle approached parallel to my window I identified the driver to be Dean Davis who I have grew [sic] up with. Dean Davis is also a showman and had been at the Nowra show and was travelling to the Bega show.

At the point where the rear of Dean’s caravan was along side my window into the distance coming the other way I noticed a white station wagon coming towards us on the other side of the road which is a single lane. At this point in time I looked into my rear vision mirror and I saw a Commodore that looked identical to my Commodore that was being driven by Joel Gilmore come across the road onto the other single lane and collided into the little white station wagon... Unable to stop I proceeded to the top of the hill and got on the CB radio and told Jamie Dee to stop because I thought my Commodore had been in an accident... Dean Davis pulled into the left hand lane in front of me and proceeded on. By the time I had got to the top of the hill he was gone.

79 Mr Bell said that when he got to where Mr Dee was parked both he and Mr Dee ran down to the accident scene. Whilst at the scene he recalled mentioning to Mr Dee that he identified the driver of the vehicle that overtook him as Dean Davis (Blue 776).

80 At the trial, Mr Bell gave evidence about his father’s truck that was being driven by Mr Dee on the day of the accident. It was a tray truck with a ride on the back: it was not a pantechnicon (Black 1049-50).

81 As to the caravan being towed by Mr Dee, Owen Bell had owned it for 11 years. Mr Bell identified it as the caravan in the Mt Isa photograph. It had always had two windows at the back as well as the words “Royal Flair”. The caravan had always had the registration number F34 209. See also Black 954-5, 1034, 1050. (As indicated, registration particulars corroborated this evidence.)

82 Mr Bell said that he had his caravan changed by adding a third axle in 1994 at the time that a new number plate was put on the van (Black 792-3). This evidence was corroborated by an application to register the van dated 18/10/96 (Blue 601). The application shows the previous registration number to have been D94 306. Of greater significance it also shows the van to have six wheels (Blue 601H) which corresponds with the Mt Isa photograph (Blue 1038). (Mr Lear said that the offending caravan was a dual axle, not a tri-axle van.)

83 Mr Bell said that some repair work had been done to the van in Dandenong Victoria in the months before the accident. There was no change to the registration plates (Black 803).

84 Mr Bell saw the green Commodore (which for a time he thought was his own) “come across the road and hit the driver’s side of the Datsun” (Black 799). He saw this by looking directly at it through his side window and then in his mirror. He contacted Mr Dee by CB radio telling him to pull over somewhere where he could find a spot (Black 1025). When he got to the top of the hill himself, he pulled over. He “jumped out of the truck and ran back down” (Black 800). Mr Dee was already out of his truck running. “He seen me coming and he ran back to me when I caught up”. The two men, and Mr Bell’s girlfriend Melissa, both ran back down to the place of the accident.
85 In his evidence at trial Mr Bell identified Mr Dean Davis and his Toyota Dyna truck as having overtaken him after three or four cars had passed him (Black 795). He described Davis’ caravan as smaller than his own, about 12 feet long with no windows on the back and with a brown stripe (Black 795-8). He implied in his evidence in chief and clearly stated in cross-examination that Davis was the driver of the offending vehicle (Black 963-5, 1031). In cross-examination he described in detail the accident involving Davis’ truck and caravan.

86 Mr Bell’s evidence at trial implicating Mr Davis was quite explicit. There was no room for mistaken identity. He said that he saw Davis’ girlfriend, Stacey, and a man who worked for Davis each sitting in the front of the truck next to Davis (Black 968, 1034). Later he said that Davis would have seen the accident but kept driving. “Got scared probably” (Black 1031).

87 Mr Bell had known Mr Davis as a friend all his life (Black 796, 952, 978, 1035). He was a showman who operated a knock-em-down game and who moved from show to show. Bell knew Davis’ father and half-brother (Black 1034). He was thoroughly familiar with Davis’ truck and caravan (Black 960-1, 963-5, 1031). He described the caravan as having two axles and square shape, smaller than the three axle van being towed by Mr Dee. It was white with a stripe going through the middle (Black 978-9). He described Davis’ truck as having a pantech or enclosed body of a creamy colour (Black 970).

88 Mr Bell said that he spoke on the day of the accident to Mr Dee about Mr Davis’ involvement (Blue 776P, Black 1052, 1055). (No evidence was led from Dee to corroborate this information.)

89 Mr Bell admitted to having spoken to Mr Davis at Bendigo about the case, in October of the year of the trial. Bell asked Davis to help him out. Davis was angry about Bell having nominated him as the driver of the offending vehicle (Black 1039-41).

90 When asked to explain why he had not mentioned Mr Davis’ truck when interviewed by the police, Mr Bell said (Black 976):

It’s just, I’ve been growing up with him and just tried to help him out a little bit, and its fallen back on me.

He agreed that he had been deceptive to the police and that when interviewed a second time in Mt Isa he again made a deliberate decision not to mention Davis (Black 977). He felt that he had to protect Davis because: “Just being friends all our lives, and you know, stick by each other” (Black 1027).

91 Mr Bell said that he had lied to help his friend Davis out by throwing the police off the track (Black 993-4). He denied that he had lied to protect his friend Jamie Dee who no longer worked with Bell’s Amusements (Black 985).

92 Mr Bell also admitted that he had lied to the police when telling them that the truck driving the offending vehicle was a Toyota Dyna. In fact it was an Isuzu.

93 Mr Bell was first cross-examined by Mr Stitt QC, representing the Nominal Defendant. Various irregularities, or worse, were established with regard to the residential address given when he had obtained a Victorian licence or the registration of his caravan at various times in the past. Mr Bell sought to meet the cross-examination by emphasising the itinerant nature of his livelihood. He said that his father Elwin did “all the registration”. (Elwin Bell corroborated this: Black 1121.)

94 Registration plates were changed from time to time because they tended to fade, but the plates were handed in to the RTA in that event (Black 959, 1030). But there was no practice of switching plates from one caravan to another (Black 960, 1030). Mr Bell denied any practice of double-tripping in the sense of moving vehicles that did not have a registration plate (Black 987).

95 Mr Bell agreed that it was very common for caravans to have stripes on their side (Black 1035).

(iv) Mr Elwin Bell

96 Mr Elwin Bell was the principal of Bell’s Amusement and Bell’s Amusement Hire.

97 He said that none of the Bell’s Amusements caravans had the word “Majestic” on its rear (Black 1119).

98 Mr Bell also gave evidence, corroborating his son, about the registration of the caravan being towed by Mr Dee and owned by his son Owen at the time of the accident. He identified his signature on the Vic Roads registration form lodged in Mildura on 18 October 1996 (above). The form was completed when Mr Bell exchanged some faded number plates. When this happened a new number was issued, F34 209 (Black 1109. See Blue 601). Mr Bell fixed the new number plates to the caravan.

99 Mr Bell swore that the plates had remained on the caravan ever since (Black 1118). He denied any practice of “double-tripping” in the sense of sharing one set of plates between two vehicles (Black 1138).

100 Mr Bell admitted that he had never had a residential address in Victoria yet he had registered vehicles in that State because it was cheaper (Black 1125). He admitted to having given false addresses when registering vehicles.

101 Mr Bell first became aware of the suggestion that Dean Davis was driving the offending vehicle on the day of the accident. He had been told this by his foreman, Mr David Hodgson (Black 1133). Elwin Bell had known Dean Davis for most of his life.

(v) Mr Dale Lear

102 Mr Lear gave a statement to the police a couple of weeks after the accident (Blue 15). He was travelling with his daughter, April, driving south behind a group of about five cars that were following a truck towing a caravan. He described the caravan as a white colour with a dual axle arrangement. “There didn’t appear to be any back window that I could see.” (This last statement strikes me as a little more tentative about the caravan windows than later testimony from Mr Lear.)

103 Mr Lear gave the following description of the accident (Blue 16):

I followed that caravan and cars for a while. As we approached the uphill section, which had an overtaking lane, I could see in the distance, another semi trailer which was towing one of the carnival rides. The ride has a blue or green tarp wrapped around the ride. That truck was going slowly. As I came down the hill and was about to go up onto the section with the overtaking lane, I saw that the smaller truck that I had been following in the line of traffic was slowly catching up to the semi trailer. The smaller truck and caravan was in the inside lane. As this smaller truck was catching the semi trailer, the cars in front of me pulled into the right hand south lane and began to overtake both trucks. As I was about to merge into the overtaking lane, I saw a Landcruiser 4wd overtake the trucks. I saw that the smaller truck and caravan now had his right hand indicator on. A green Holden Commodore sedan that was about 100 metres in front of me, in the right hand overtaking lane, accelerated and was going to pass both the trucks. The Landcruiser had overtaken and there was a small gap before the Commodore. The smaller truck towing the caravan just pulled out to overtake the semi trailer. The green Commodore had no where to go. The truck was only slow as it pulled out. The Commodore veered to the right and straight onto the incorrect side of the road. I don’t recall seeing brake lights at first, but if the driver had continued straight ahead when the truck pulled out, it would have collided near where the truck and caravan join. I do recall seeing a flicker or brake light just before the Commodore hit another car that was travelling north. The front of the Commodore smashed into the front of a smaller white station wagon. I had slowed and was back a bit from the cars when the collision happened. I drove past and pulled over to the left hand side. I looked up the hill and saw that the semi trailer, towing the ride, and the truck and caravan that pulled out in front of the Commodore, were pulling up on the left hand side of the road. I could see the left hand indicators on. I stopped my car and my daughter and I went back towards the cars.

104 Mr Lear first went to provide assistance and to give his details to the young boy in Mrs Broughton’s vehicle. He described subsequent events as follows (Blue 17-18):

I went back to my car with my daughter, and drove south up to the top of the hill. I saw that the semi trailer towing the ride had parked off the road on a wider dirt section. The truck and caravan that pulled out in front of the Commodore, was parked on the inside of the semi trailer. They were parked side by side. I couldn’t see the registration number of the semi trailer or the trailer it was towing. The smaller truck was along the inside and the back of the caravan it was towing was about level with the semi trailer. I slowed down and I saw the number plate on the rear of the caravan. It was 034 209. It was a white background. The colour of the numbering was dark but I’m not sure of the actual colour. I couldn’t see any state identification. I remember the caravan had a word sign written in black on the rear. The letters were about 20cm high and I think it was similar to ‘Majestic’ or ‘Majesty’. I gave my daughter a docket, that I had in my pocket, and a pen. I read the registration number of the caravan out to her. As I read the numbers, she repeated them to me to confirm what I had told her. She was looking at the numbers on the caravan too. I continued my travel to Pambula, with my daughter. I have kept the docket that my daughter wrote the numbers on. I was contacted by the police the next day.

105 Mr Lear was called as a witness by senior counsel for Mr Veigel. He said that the cars that had been banked up behind the semi-trailer and the truck with the caravan started to pass in the overtaking lane. The Landcruiser overtook and the Commodore began to overtake. Mr Lear said that, from a position near the bottom of the hill, just as the overtaking lanes began, he could see the caravan with its right hand indicator on, between about 50-100 metres ahead. He was firm in his evidence in chief that he was never more than about 100 metres to the rear of the Commodore (Black 175, 177). He remained in the left lane when the lanes divided (Black 335).

106 Mr Lear conceded that the caravan’s right blinker may have been flashing before he noticed it. But the Commodore was in the right hand lane and the caravan was still in the left hand lane. He spoke of the Commodore “beginning to catch up, there being a small distance of between 25 and 30 metres between the Commodore and the Landcruiser ahead of it in the right hand lane”.

107 Mr Lear’s description of the accident was (Black 178):

The truck towing the caravan veered out into the overtaking or right hand lane and then the Commodore veered off to avoid collision.... It appeared to come out suddenly as if he wanted to get out in a hurry. So, he has veered out suddenly in front of it, how I could describe it, I suppose. The Commodore either had the option of hitting the caravan and truck or veering.

108 He said that the front of the Commodore would have been level with the front of the caravan at the stage when the truck and van veered out.

109 Mr Lear gave a detailed description of the truck and caravan as he observed it prior to the accident. The caravan was described as “white and dual axle. Old, oldish looking, it wasn’t a new caravan” (Black 180. See also Black 339.) It had small indicators that were slightly rounded on the ends and no rear window (Black 173, 369). He estimated it to have been about 24 feet long. He said that the caravan had writing on its rear. He remembered a large letter “M”. It was like Majestic Star, which is a model of caravan.
110 The truck was described as an old, single axle rigid truck. “It reminded me of our old work truck which was like a pantech, like the small removalist van, if anything” (Black 180). It reminded him of a furniture van, like a pantech, a covered truck with aluminium to cover the rear (Black 181).

111 The truck and caravan overtook the semi-trailer at some stage, because there was a time when the only vehicle ahead of Mr Lear was the semi-trailer (Black 186).

112 Mr Lear gave evidence, consistent with his police statement, that he drove past the accident site and stopped his car before racing back down to the accident. He gave a note with his particulars to Mrs Broughton’s son. (Mr Bell effectively corroborated this evidence: see Black 1038.) He then got back into his car and drove further up the hill where there was “like a bus stop clearing on the left-hand side where I saw the semi-trailer and noticed the caravan was parked on the inside of it with the truck” (Black 184). Mr Lear dictated the number plate of the caravan to his daughter.

113 Mr Lear was unshakable in his testimony that the semi-trailer and the truck with caravan that he saw at the top of the hill were those he had earlier seen driving up the hill in the inside lane. In particular, he had no doubt that the caravan whose number was taken down was the one that he had seen cause the Commodore to veer into the path of Mr Veigel’s northbound vehicle (see Black 184, 276, 283, 288, 341). He denied that he had merely assumed the two caravans were the same (see eg Black 361). The van at the top of the hill was “an exact replica” of the one that caused the accident (Black 370).

114 Mr Lear was shown photographs of the caravan that were then MFI 9 (Black 185). He was sure that this was not the caravan that he saw on the day of the accident. (See also Black 342, 369.) The photographed van had a tri axle, not a dual axle. And it had the words “Royal Flair”.

115 Mr Lear also gave the following evidence about the truck depicted in the photograph (Black 186):

LEATHERBARROW: Q. Can I show you one other photograph from packet number 34. Just answer this yes or no. Do you recognise that as a truck with a trailer on the back of it?

A. Yes.

Q. Are you able to compare that in any way to the truck towing the caravan that you saw that day?

A. Yes, of very similar shape, the cabin are [sic] very similar shape, yes.

Q. The tray itself?

A. Couldn’t recall. I have described it as a pantech but this is just a flat tray.

Q. The cabin is similar, anything else or not?

A. White and very similar in size.

116 He later said that the truck depicted in the photo was different to the one seen towing the caravan at the accident. It was open trayed at the back and not a covered truck like a pantechnicon (Black 373).

117 The nub of the challenge to Mr Lear’s testimony was the suggestion that he had simply assumed that the caravan seen at the top of the hill parked near the semi-trailer was the one he had earlier seen veering into Mrs Broughton’s path. The cross-examination was re-enforced with repeated attempts to have the witness concede the possibility that he may have been mistaken, interlaced with probing to show that he did not have a perfect observation or recall of the events in question.

118 It was put to Mr Lear in cross-examination that the place where he said he observed the accident was approximately 400 metres away, at a point where he was approaching the overtaking lane (Black 228-9). A detailed scale drawing of the scene supports this proposition. Mr Lear admitted that he was not very good at estimating distances. He also admitted to an error relating to the colour of the number plate of the offending vehicle as described by him to the police (Black 278).

119 Mr Lear did not think it possible that he had made a mistake about the truck and caravan that he saw causing the accident. He conceded the truck and van depicted in the Mt Isa photograph was different (“not totally but – ”) (Black 276). But he would not concede that he may have jumped to the wrong conclusion about the identity between the vehicles at the top of the hill and those involved in the accident. In response to a question asking whether he could have been wrong he said (Black 276), “No, because when I saw them at the top of the hill I had no doubt. I didn’t say ‘Oh, that looks like the truck and caravan’. I just went ‘there they are there. I will take their numbers down’.”

120 Mr Lear said he was in no doubt (Black 283-4). He denied that he only made an assumption that the vehicles were the same, asserting (Black 288):

No, because it looked familiar. It looked exactly like the caravan that was in the accident.

121 Mr Lear was sure that the only trucks in the convoy were the semi-trailer and the smaller truck with caravan that he identified as being in the accident (Black 288). This evidence is at variance with that of the other witnesses, including Mrs Broughton and Mr Dee.

(vi) Ms April Lear

122 Ms Lear was a passenger in her father’s car when the accident occurred. She was then a little over 12 years old.

123 She said that she saw cars overtaking the caravan. The caravan put its right side indicator on before it started to pull out. She could not remember how long the indicators were on before the accident. It was clear to her that the overtaking car had to swing away from the caravan and truck to avoid the collision (Black 297).

124 After her father gave his phone number to one of the people involved in the accident they drove further on up the hill where they saw “the caravan” parked on the left-hand side. She was sure that the caravan at the top of the hill was the one that had caused the accident (Black 299). She said that the van was different to that depicted in MFI 9 because of “the back with the box and the window, I think” (Black 295).

(vii) Mr Hodkinson

125 Mr Hodkinson was driving southwards. It is unclear whether he was between the offending vehicle or somewhere behind Mr Lear. His version of the mechanics of the accident was not accepted by the judge. Nevertheless, his description of the offending truck and caravan was relevant and there is force in Bell/Dee’s complaint that it ought to have been considered by the trial judge. He described the caravan as perhaps 25 feet long, with dual wheels and an orangey stripe down the side (Black 196, 216). When shown MFI 9, which is a photograph of the caravan registered F34 209 taken at Mt Isa in August 2001, he said that it looked quite different in several respects from the offending caravan (Black 199).

126 Mr Hodkinson’s description of the truck he saw was that it was like a little Dyna, white and three or four tonne maximum.

127 In response, to a question whether he noticed what was behind the cabin of the truck, he said:

Yeah, I think there was sort of covering on it .... Just some form of structure, I’m fairly sure it was on it.

128 (Senior counsel for the Nominal Defendant submitted that this corroborates Mr Lear’s evidence describing the truck as a pantechnicon. I do not think that it does.)

129 Mr Hodkinson described the truck as (Black 196):

... a light colour, had a vertical exhaust pipe near the cabin, I’m quite sure it was on the left-hand side of the cabin.

130 When shown MFI 10, which is a photograph of the truck registered FGZ 993 taken at Mt Isa, Mr Hodkinson said that it was different to the one he had seen causing the accident because it had a different exhaust pipe on a different side, there was no structure on the back and it was just a table top (Black 200).

(viii) Mr Dean Davis

131 As indicated, the only direct evidence given at trial nominating Mr Davis as the driver came from Owen Bell (see Black 1162-3). Mr Dee did not identify Davis as the driver of the offending vehicle even though there was evidence from another witness that he had discussed Davis’ involvement as the driver of the offending vehicle with Owen Bell.

132 Mr Davis was joined as a defendant on the twentieth day of the trial following the evidence of Mr Owen Bell who on the sixteenth day of the trial effectively identified him as the driver of the offending vehicle.

133 It would appear that the police received anonymous information suggesting Mr Davis’ involvement as early as February 2001 (see Black 648, 650; Blue 19, 749). The police eventually tracked him down and, having been told that he had no involvement with the accident (Blue 28), set about checking his alibi. This evidence was initially tendered on the matter of due search and enquiry (see Black 650).
134 Mr Davis gave evidence in support of his alibi and therefore gave no evidence about the accident.

135 Mr Davis said that he once owned an Isuzu truck registered number 497 EZM and a Scenic caravan registration number 001 QCM. These were green and white Queensland registrations (Black 1200). The caravan was 22 feet long, it had two axles and it was a Scenic brand. It was creamy beige in colour. There were windows on the side but none on the back (Black 1204-5).

136 Mr Davis had never had a vehicle with the registration number F34 209.

137 Mr Davis said that he had not been to the Bega show since after he bought the truck and caravan in 1999. He was at the Nowra show in February 2001 and he drove from there to Five Dock in his truck. He left the caravan at the Nowra show (Black 1208).

138 Nowra is far to the north of the accident site. If in truth Mr Davis was driving from Nowra to Sydney on the day of the accident he would have been well away from the point of the accident.

139 Mr Davis said that before he got to Five Dock he received a phone call on the outskirts of Sydney telling him that because of rain he would not be able to get into the block at Five Dock. Having received the call he turned around and drove back to Nowra, again via the M5. He then picked up his caravan intending to go to Canberra and then across to Gundegai. He followed the Kangaroo Valley/Moss Vale route. A receipt in his name for camping at Exhibition Park in Canberra on 14 February 2001 was tendered (Blue 656, Black 1219).

140 Mr Davis denied any involvement with the accident.

141 Mr Davis accepted that he might have seen Owen Bell on the morning of 11 February 2001 at the Nowra showgrounds (Black 1230).
142 Mr Davis was cross-examined by Mr Dodd, senior counsel representing Elwin Bell and Jamie Dee. It was put to him that his evidence about the cancelled event at Fivedock was a lie. He denied this. He agreed that he had criminal convictions for assault (Black 1233). He also agreed that he had sometimes driven without a current licence (Black 1279).

143 A bundle of documents produced on subpoena by Canada Bay Council included business records confirming that heavy rain led to a decision, made at approximately 9.00am on 11 February 2001, to prevent joy rides and amusement stalls being permitted onto Five Dock park (Blue 603-612. As to the closure of Five Dock park on 11 February see also Blue 623, 641.) Evidence from the Bureau of Meteorology also confirmed that significant rain fell in the Five Dock area on that date (Blue 932, Black 1292).

144 Mr Davis did not call evidence from the two people who were, by his and Owen Bell’s accounts, in his vehicle on the day in question. These were his then girlfriend, Stacey and an employee, Michael. Evidence was led in an endeavour to justify this forensic decision and head off an adverse Jones v Dunkel inference.

145 None of the details I have recounted about Mr Davis’ case were discussed in the reasons for judgment.

146 Nevertheless, the judge must have accepted the testimony supporting Mr Davis’ alibi. At the very least, his Honour was not satisfied with the case suggesting that Davis was the driver of the offending vehicle.

(ix) Mr Leslie Davis

147 Mr Dean Davis’ grandfather, Leslie, gave evidence by telephone. He said that he was at the Nowra Show in February 2001. After it finished on Sunday 11 February, he travelled south to Bega, but his grandson Dean did not. Dean told him he was going to Sydney (Black 1314). He next saw Dean in Canberra the following week.

The trial judge’s reasons

148 There were very detailed written and oral submissions at trial. Judgment was reserved on 16 February 2005.

149 Reasons for judgment were published on 12 May 2005. Their brevity (12 pages) does not necessarily indicate that the key issues were overlooked or addressed inadequately.

150 The learned judge recognised that the two contentious issues were whether Mrs Broughton was negligent to any degree and the identity of the driver of the offending vehicle.

151 The core of the judgment was as follows. I have corrected obvious typographical and punctuation errors and I shall emphasise passages of significance to my later reasons:

I will summarise the versions given by the various eye witnesses who were travelling on the Princes Highway in the vicinity of the collision.

1. Mrs Broughton

Christine Broughton gave evidence that as she drove along the said Princes Highway in an uphill direction there were a number of side show trucks and caravans ahead of her. She overtook the first of the sideshow vehicles and was in the process of overtaking a second sideshow vehicle when the second vehicle started to merge into her lane. Mrs Broughton said that the merging vehicle did not have any indicators operating to show an intention to change lanes. She said that she did not have time to apply the brakes and that she swerved to the right to avoid colliding with the merging vehicle. Mrs Broughton’s vehicle collided with Mr Veigel’s vehicle.

I do not accept Mrs Broughton’s evidence that the caravan’s right indicator was not flashing before she reached the caravan. Mrs Broughton is not an independent witness and her evidence is directly contradicted by the evidence of Mr Lear and his daughter, April. Furthermore, Mrs Broughton admits that it did not cross her mind at any time that a truck might want to move into the overtaking lane. This is consistent with her failure to keep a proper look out.

2. Ms Harradin

Her version of the accident is as follows:

Ms Harradin was a passenger in a vehicle travelling downhill in the same direction as the first plaintiff, Mr Veigel. She claims that as she was looking through the rear side window she saw Mrs Broughton’s vehicle veer to the incorrect side of the roadway. At the time that Mrs Broughton’s vehicle veered to the wrong side of the road, the overtaking truck caravan was at least a quarter of the way along the truck that was being overtaken. If the Harradin version of the incident is correct, then there was no reason for Mrs Broughton to veer to the incorrect side of the road.

Ms Harradin is not in as good a position as the other witnesses to see the incident, her evidence does not really assist me because she did not see why Mrs Broughton drove to the incorrect side of the road. I am satisfied that there was a reason for Mrs Broughton to veer to the incorrect side of the road.

3. Mr Lear

Mr Lear was travelling uphill on the Princes Highway in the same direction as Mrs Broughton. His daughter was a passenger in his vehicle. His version of the accident is that Mrs Broughton’s vehicle began to move into the overtaking lane at a time when the right indicator was flashing on the back of the caravan; the caravan had no back windows. When he first saw the right indicator of the caravan flashing Mrs Broughton’s vehicle was twenty-five to thirty metres behind the said caravan. (This particular piece of evidence is crucial and I will return to it later.)

When Mrs Broughton’s vehicle was in the overtaking lane and was alongside the truck-caravan combination, it suddenly moved into Mrs Broughton’s lane. Mr Lear saw Mrs Broughton’s vehicle veer to the incorrect side of the road. In describing the movement of the truck-caravan combination Mr Lear said:

“It appeared to come out suddenly, as if he wanted to get out in a hurry.”

He also said:

“The Commodore either had the option of hitting the caravan and truck or veering.”

Shortly after the collision Mr Lear saw the offending truck-caravan at the top of the hill and said to his daughter:

“There they are there. I will take their numbers down.”

He was asked in cross-examination if he had any doubt as to whether the caravan at the top of the hill was involved in forcing the Commodore onto the wrong side of the road. He said, “Yes, there is no doubt, no.”

If the offending caravan has been correctly identified by Mr Lear and his daughter it means that the offending truck-caravan combination was being driven by Jamie Dee at the scene of the collision. It seems possible, from the evidence of Mr Lear, that the caravan shown in exhibit 2D3 is not the offending caravan at the top of the hill, and the number plates have been changed to another caravan. The evidence which concerns me in this hearing is that both Mr Lear and his daughter are certain that the caravan, which they saw at the top of the hill, is the offending caravan. The said caravan F34209 at the top of the hill was being driven by Jamie Dee at the scene of the collision. There is evidence that swapping number plates does occur in the industry, there is no evidence that Jamie Dee or Owen Bell changed the number plates on the said caravan.

Jamie Dee and Owen Bell admit that their vehicles were parked at the top of the hill. It was never put to Jamie Dee or Owen Bell that they changed number plates on the said caravan, and I make no findings in that regard.

4. April Lear

Ms Lear’s version is as follows. She gave a similar description of the collision as her father. She saw the caravan’s right indicator operating before Mrs Broughton’s vehicle entered the overtaking lane. She identified the offending caravan as the caravan which later stopped at top of the hill. She immediately recorded the registration number of the caravan. According to the police report Ms Lear recorded the registration number as 034209. There are a number of possibilities that arise. It is possible that the police report is wrong and the original number recorded was F34209 or, it is possible that 034209 was initially wrongly recorded. Of course, there is the unlikely and extremely remote possibility that there was another caravan present at the top of the hill with number plate 034209. However, in view of the evidence, and in particular the evidence in relation to number plates, it seems to me that I can safely reject all of the remote possibilities. I am satisfied that F34209 was being driven by Jamie Dee. I am satisfied on the balance of probabilities that the registration number recorded by Ms Lear was F34209.

I note also that Ms Lear was cross-examined. She remained certain that the caravan at the top of the hill was the offending caravan. She also said that she recorded the registration number of the caravan in order to report the matter to the police.

5. Jamie Dee

Jamie Dee’s version was as follows. As he was driving a truck-caravan combination on the Princes Highway towards Bega he received a call on his CB radio from Owen Bell. Owen Bell was travelling behind Jamie Dee in the line of traffic. Owen Bell told Jamie Dee that he thought that his car had been involved in an accident. Jamie Dee stopped his vehicle at the top of the hill and waited for Owen Bell to arrive. As Jamie Dee alighted from the cabin of his vehicle he states that he saw a white truck and caravan passing, he said that the white truck flew past him at eighty to ninety kilometres per hour. He and Owen Bell spoke at the top of the hill and then they ran back down the hill to the scene of the collision. Owen Bell was the owner of the caravan being towed by Jamie Dee. Jamie Dee said in Court that he had wrongly told the investigating police that the caravan he was towing had no back windows, but in fact the caravan did have back windows. Jamie Dee could not remember if he was in Court when Mr Lear gave evidence that the offending caravan which caused the collision had no windows at the back.

6. Owen Bell

His version of the collision is that as he was driving a semi-trailer caravan combination up the hill in the slow lane, he saw several cars behind him. After the cars overtook his vehicle he saw a truck-caravan driven by Dean Davis at fifty to sixty kilometres per hour overtake his vehicle and pull back into the slow lane. Owen Bell saw Mr Veigel’s Datsun vehicle coming down the hill, he said that the passenger side of the Datsun was screaming and hitting the guard rail. He saw a green Commodore:

“come across the road and hit the driver’s side of the Datsun.”

He believed at the time that the Commodore was his vehicle and he immediately called Jamie Dee on his CB radio to stop his vehicle. Mr Bell thought that the Commodore was twenty to fifty metres behind his vehicle and he saw no reason for the Commodore to cross to the incorrect side of the road.

He saw the collision in his rear vision mirror. It is clear from Mr Bell’s description that Dean Davis had nothing to do with the collision between the Datsun and the Commodore because Dean Davis, according to Jamie Dee [sic. It was Owen Bell], had completely overtaken his vehicle before the occurrence of the collision. As a result of Owen Bell’s evidence on 3 August 2004 identifying Dean Davis as the driver of a truck-caravan combination on 11 February 2001 which overtook Owen Bell’s vehicle near the scene, there was an adjournment of the hearing to allow Dean Davis to be joined as a defendant and cross-defendant in both actions.

7. Mr Hodkinson

Mr Hodkinson’s version of the accident is that as he drove in a southerly direction towards Eden he approached a left hand bend where he saw two cars collide head on. He did not see the two vehicles before the collision occurred. He recalls seeing a caravan in close proximity to the colliding vehicles, but he has no recollection of seeing a flashing indicator on the caravan. He recalls that the truck-caravan combination was:

“at an angle across the two lanes, as though it was doing an overtaking manoeuvre.”

The evidence of Mr Hodkinson has limited value because he did not see the vehicles before the moment of collision.

ANALYSIS OF THE ACCIDENT

The central problem for this Court is to determine which vehicle or vehicles caused the collision. Having regard to all of the evidence and submissions, and reflecting upon the evidence, it seems to me that the accident was caused by one or more of the following:

(1) Mrs Broughton’s vehicle; or

(2) Mr Dee’s vehicle; or

(3) Mr Davis’s vehicle; or

(4) an unidentified vehicle.

There are numerous variations in the descriptions given by the eye-witnesses. I was impressed by Mr Lear and his daughter, April Lear. I accept the evidence of Mr Lear and his daughter that they saw the right indicator of the caravan flashing before Mrs Broughton’s vehicle reached the back of the caravan. I also accept Mr Lear’s evidence that the truck-caravan combination moved into Mrs Broughton’s lane when Mrs Broughton’s vehicle was fully in the overtaking lane and accelerating uphill alongside the truck-caravan combination. I also accept the evidence of the Lears in relation to the identity of the overtaking truck and caravan, which they saw at the top of the hill where they immediately recorded the registration number of the caravan.

There are a number of reasons why Mr Lear’s evidence should be accepted as an accurate description of how the collision occurred:

(a) he took the trouble to record the registration number of the offending caravan and to give the registration number to the police;

(b) his evidence was supported by his daughter;

(c) he was in a good position to see the vehicles before the moment of collision;

(d) he was cross-examined for a considerable period of time and adhered to his evidence in chief;

(e) his evidence in the witness box was consistent with his earlier statement to police;

(f) he was an independent witness and had no interest in the outcome of these proceedings.

There are a number of reasons why the evidence of Jamie Dee and Owen Bell must be rejected, including the following:

firstly, Mr Dee, that is Jamie Dee, conceded that he gave a false statement to Mount Isa police;

secondly, the evidence of Jamie Dee and Owen Bell is contrary to earlier statements they have given;

thirdly, it is clear that Owen Bell had deliberately mislead police in their investigations of the accident by deliberately withholding the name Dean Davis;

fourthly, Owen Bell admitted in cross-examination that on many occasions he had given false information to public authorities and insurance companies.

Clearly both men are capable of telling lies when it suits their purpose and I am not able to place any weight on their evidence.

I am not satisfied, on the evidence, that at the time of the collision Mr Davis was in the vicinity of the collision. I am satisfied that there is no evidence that an unidentified vehicle was involved in the accident and therefore the evidence and submissions in relation to due search and enquiry may not be relevant at this stage of the hearing, but of course may be relevant later on the question of costs.

I am satisfied that at the time of the collision the overtaking truck, registration number EGZ993, was being driven by Jamie Dee and was owned by Owen [sic] Bell. I am satisfied that the caravan being pulled by the said truck carried registration plate F34209, the said caravan was owned by Owen Bell.

I find that the accident was partly caused by the clear negligence on the part of Mrs Broughton in failing to see the right indicator flashing on the caravan as she was approaching the rear of the caravan for some considerable distance, and then accelerating alongside the truck and caravan to overtake. Clearly, Mrs Broughton failed to see the truck-caravan merge into her lane until it was too late to stop and then she was forced to veer to the wrong side of the road.

I find that the accident was partly caused by negligence on the part of Jamie Dee in turning his vehicle into the overtaking lane before he adequately checked the overtaking lane to ensure that it was safe to change lanes. Both Mrs Broughton and Jamie Dee were negligent in failing to keep a proper look out.

Mr Leatherbarrow, of senior counsel, submitted that Mrs Broughton’s responsibility for the accident should be around one-third to one-half. Mr Stitt, of Queen’s Counsel, submitted that Mrs Broughton should bear at least half of the responsibility for the accident. It seems to me that Mrs Broughton’s responsibility for the accident must be one-half and the balance of the responsibility must be carried by Jamie Dee.

Was Mrs Broughton Negligent?

152 In finding Mrs Broughton partly at fault the judge preferred the evidence of Mr Lear to that of Mrs Broughton about the right indicator of the caravan of the offending vehicle flashing before Mrs Broughton came abreast of it. This credibility-based finding was, in my view, open to the judge given that it was based on preferring the independent evidence of Mr Lear and Ms Lear to that of Mrs Broughton herself.

153 His Honour added to this finding Mrs Broughton’s concession in evidence that it did not cross her mind at any time that a truck might want to move into the overtaking lane. From these matters his Honour inferred that Mrs Broughton had failed to keep a proper lookout. With respect, I do not accept the logic of this reasoning. But before I explain this conclusion I need to examine the evidence of Mr Lear in a little more detail.

154 Judge Coorey described as “crucial” Mr Lear’s evidence that he first saw the right indicator of the caravan flashing at a point where Mrs Broughton’s vehicle was 25 to 30 metres behind the caravan. He also quoted, with obvious acceptance, Mr Lear’s description of the offending vehicle having “appeared to come out suddenly, as if he wanted to get out in a hurry”. And he accepted Mr Lear’s evidence that the offending vehicle moved into Mrs Broughton’s lane when Mrs Broughton’s vehicle was fully in the overtaking lane and accelerating uphill alongside the offending vehicle.

155 In the conclusory part of his reasons the judge held that Mrs Broughton failed to see the right indicator flashing as she was approaching the rear of the caravan “for some considerable distance, and then accelerating alongside”.

156 In my opinion, the primary facts do not support the conclusion of negligence.

157 Mr Lear’s earliest statement, given to the police a little over a fortnight after the accident, clearly implied that fault lay solely with the offending vehicle. Of that vehicle and Mrs Broughton’s vehicle he said (emphasis added):

The smaller truck towing the caravan just pulled out to overtake the semi trailer. The green Commodore had nowhere to go.

158 What Mr Lear described as “a small distance of between 15 and 30 metres” was his estimate of the gap between Mrs Broughton’s Commodore and the Landcruiser ahead of it in the right hand lane. He said that the estimate was made from a point 50-100 metres behind Mrs Broughton’s car with himself in the inside lane, but he admitted the possibility of error in the distance and there was a deal of objective evidence pointing to a much larger gap.

159 In cross-examination, Mr Lear ventured that he saw the caravan’s right indicator on for “a matter of seconds, four or five seconds, I suppose” (Black 272).

160 Taken at their highest against Mrs Broughton, these matters in combination mean that she was shown to have had up to five seconds notice that the driver of the offending vehicle desired to overtake. If one endeavours to work backwards from the estimated distance of 15 to 30 metres (between Mrs Broughton’s car and the Landcruiser ahead of it), the time lapse depends on the relative speeds of Mrs Broughton’s vehicle compared to the slower vehicle in the inside lane. It would be a matter of about two seconds (CA Tr pp56-8).

161 The judge’s conclusion that Mrs Broughton’s vehicle was 25 to 30 metres behind the caravan whose indicator was flashing does not appear to find support in the evidence.

162 The calculations expose unanswered questions about the reasoning that led to the conclusion that Mrs Broughton failed to keep a proper lookout. Viewed thus, they would add considerable strength to Mrs Broughton’s alternative submission that the judgment adverse to her should be set aside and a new trial ordered because the critical reasons are not exposed.

163 However, I have concluded that Mrs Broughton should be acquitted of the finding of negligence, with consequential relief from being ordered to share the burden of Mr Veigel’s damages and the setting aside of the finding of contributory negligence in Mrs Broughton’s own proceedings.

164 Regulation 148(2) of the Australian Road Rules provided at the relevant time:

A driver on a road with 2 or more lines of traffic travelling in the same direction as the driver, and who is moving from one line of traffic (whether or not the line of traffic is ending) to another line of traffic, must give way to any vehicle travelling in the same direction as the driver in the line of traffic to which the driver is moving.

165 This regulation gave Mrs Broughton the right of way. This is not always decisive in negating negligence, but here it was. Assuming that Mrs Broughton did have ample time to see the flashing indicator, this on the evidence would have conveyed no more than that the driver of the offending vehicle wished to overtake the slower truck ahead in the inside lane when it became safe to do so. At the very least, it was not negligent for a driver in Mrs Broughton’s position to reason this way.

166 After all, the column of faster vehicles had been banked up behind the sideshow vehicles for several kilometres before the start of the overtaking lane. A stream of vehicles took the opportunity to pass and Mrs Broughton was part of that stream. It was not incumbent on her to yield right of way, to the detriment of herself and the other vehicles behind her who were intent on getting past the sideshow vehicles before the overtaking lane ended. Even if the caravan’s blinker was flashing for four or five seconds, there was nothing to prompt Mrs Broughton to think that the van would veer out into her path, particularly at a point where she was overtaking on a fairly sharp left-hand bend.

167 When one also recognises that the thrust of Mr Lear’s evidence was that the offending vehicle veered out suddenly I would conclude that the findings of negligence on Mrs Broughton’s part ought to be set aside.

168 Regulation 148 was referred to in the pleadings and in the submissions at trial on Mrs Broughton’s behalf. It is not discussed in the reasons below.

The driver of the offending vehicle

(a) The possibilities
169 On the evidence, there were three possibilities as to the identity of the driver of the offending vehicle: Mr Davis, Mr Dee or an unidentified third party.

170 The judge had to determine the matter on the probabilities. In doing so, he had to weigh the totality of the relevant evidence. It would not have been correct to consider each alternative in isolation.

171 At the same time, the judge had to keep in mind the onus borne by the respective plaintiffs. The rejection of the Davis scenario would not of itself establish that Mr Dee was the driver given that an unidentified third vehicle remained a distinct possibility.

172 It was well open to the judge to conclude, as he did, that Mr Dee and Owen Bell were unsatisfactory witnesses and that Owen Bell had given deliberately false evidence to the police.

173 Nevertheless, Owen Bell’s explanation for having laid a false trail for the police needed to be weighed.

174 Even more importantly, the judge was not entitled to jump automatically from any finding that Owen Bell was dishonest with the police (and/or the court) to a conclusion that the driver of the offending vehicle was Dee.

175 It became apparent early in the trial that there would be no dispute on behalf of the Bell/Dee interests that they were the owner and driver respectively of the caravan whose registration particulars were taken down by Mr Lear when he saw it parked near the top of the hill.

176 There was a lengthy exchange in which counsel representing Bell/Dee was contending that the case against his clients was tantamount to an allegation of fraud involving some nefarious switching of number plates (Black 323). Those representing Mr Veigel and the Nominal Defendant made it plain that they lacked evidence at that stage to plead or allege fraud. Mr Stitt QC, representing the Nominal Defendant, rejected the proposition that an allegation of fraud was necessarily involved. In his submission, the plaintiff had to establish that the offending vehicle could not be identified. Unless this occurred, the claim against the Nominal Defendant would fail (see Black 327).

177 Neither at trial nor on appeal was it suggested that anything turned upon the minor and perhaps purely typographical discrepancy between the registration number recorded in Mr Lear’s police statement (034 209) and the photographic and other evidence showing that Mr Elwin Bell had for many years owned a caravan with the registration number F34 209. This van (which was Owen Bell’s mobile home) was being towed by Mr Dee at the time of the accident and was still under Mr Dee’s and Owen Bell’s control when it was seen at Mt Isa in August 2001 and photographed some time later.

178 The exchange at Black 322-331 showed that everybody perceived aspects of the central conundrum and flagged them for continuing attention by themselves and the trial judge. The issue was revisited at Black 674 when counsel for the Nominal Defendant tendered the registration particulars showing (incontrovertibly, in my view) that Owen Bell was at all times between 1996 and 2004 (see Blue 426) the registered and insured owner of a caravan with the registration details that were taken down by Mr Lear.

179 The parameters of the emerging issue were clearly flagged in the following exchange (Black 675):

STITT [representing the Nominal Defendant]: The issue of identification, one way of looking at it is to see what were the records that relate to the ownership of this van, the registration number of that van over a period of time and the insurance details of that van. We are starting on that exercise to rebut the assertion that the little white van was really this sort of unknown third van, was really the true culprit. And this is the starting point of it. It’s highly relevant. The documents are admissible. They are business records of a public document. The next bundle of documents that I will tender are the insurance records which come from Mr Bell. That’s where we’re heading, your Honour.

...

McILWAINE [representing Mrs Broughton]: We’re heading down a dead end, if that’s where my learned friend is going, unless he’s going to allege fraud. That’s the inevitable consequence of what he’s putting to your Honour; that at some stage, Mr Dee and Mr Bell, either individually or in concert, have changed the registration plate so as to frustrate attempts to locate the van and vehicle involved in this accident. That is something that has to be, as everyone recognises, clearly pleaded and particularised. My learned friend, no matter how many ways he tries to justify it, is driven to that conclusion, your Honour, and that’s something that needs to be done.

180 This exchange occurred before the decision was taken to call the Bell/Dee witnesses and therefore prior to Mr Owen Bell’s evidence identifying Mr Davis as the driver of the offending vehicle. (See also Black 677, 678.)

181 Clearly, the van seen under Mr Dee’s control at various times was not the only caravan owned and used by members of the Bell’s Amusements troupe. Eyewitnesses to the accident saw several “sideshow” caravans apparently in convoy on the Pacific Highway. There is an exhibit consisting of registration documents attached to a number of caravans associated with the troupe (Blue 448-477). It was tendered by the Nominal Defendant to show the availability of several caravans whose number plates might (theoretically at least) be swapped from one to the other (see Black 696-7).

182 It is conceivable that the offending vehicle was driven by some other still unidentified member of the Bells Amusement troupe if Mr Dee was not the driver and if Mr Davis is excluded.

183 It is also conceivable (in the sense of being at least a logical possibility) that Mr Lear might have correctly identified the offending vehicle on the day of the accident, but was mistaken in his trial testimony in which he adamantly denied that the truck and van seen by the police at Mr Isa were the truck and the van he had seen at the accident. Similarly, Mrs Broughton could conceivably have been wrong in a similar manner. I record this observation while also recording that, to my knowledge, no submission along these lines was put to the trial judge or this Court.

184 There was really no evidence of any practice of “double tripping” in the sense of a single number plate being used for two vehicles. As indicated, suggestions of such a practice were denied by Jamie Dee, Owen Bell and Elwin Bell. Not only was there a gap in the evidence, but I do not think that the matter was terribly likely, given that one is dealing with a dishonest practice designed to avoid the presumably comparatively cheap registration cost of a caravan. A sideshow troupe is likely to travel in convoy as it moved from place to place. The judge made no finding about such a practice.

185 It was never put to Jamie Dee or Owen Bell that they changed number plates on the van that was being towed on the day of the accident. Judge Coorey expressly noted this at the same time that he observed that there was no evidence that Mr Dee or Mr Bell changed the number plates on the caravan and expressly refrained from making findings in that regard (see above).

186 Another possibility suggested by Mr Stitt in this Court was that there were two caravans within the Bell troupe each with the same (F34 209) number, possibly one with black lettering on a white background (as per Mr Lear’s identification) and the other with blue on white. The suggestion was that the RTA (or its Victorian counterpart) may have issued a second set upon a representation that the earlier one was lost (CA Tr (2) p61). This scenario was not explored at trial and it should, on that account alone, be ignored. I content myself with observing that it might return to bite the Nominal Defendant given that, if true, it could point to a member of the troupe other than Jamie Dee as the (unidentified) driver of the truck that was the real culprit.

187 The Bell/Dee appellants could not and do not suggest that the judge was bound to accept their testimony nominating Mr Davis as the driver and/or denying that Mr Dee was. After all, as the judge observed, both Mr Dee and Owen Bell had misled the police in their early investigations, intentionally at least as regards their initial claim not to have known the identity of the driver of the white truck and caravan that Mr Bell at least identified as having sped past after having caused the accident. There were other aspects of their evidence that would not have impressed the judge and clearly did not.

188 When Mr Davis’ identity was clearly revealed on the twentieth day of the trial, in the testimony of Owen Bell, the two plaintiffs were forced to add him as a defendant and the various cross-claims were amended accordingly. But unless the plaintiffs could establish the probability that Davis was the driver, Davis was entitled to a verdict in his favour leaving the Nominal Defendant exposed if the case against Bell/Dee was also unproven on the balance of probabilities.

(b) The judge’s reasoning as to identity

189 The judge reasoned to his conclusion on the identity of the driver as follows:

• His Honour accepted Mr Lear’s testimony that he had made a positive identification, as distinct from having jumped to a conclusion based on seeing the Bell/Dee caravan parked at the top of the hill. This evidence was corroborated by that of April Lear. The judge gave six specific reasons (numbered (a) to (f)) as to why Mr Lear’s evidence on this matter should be accepted;

• His Honour noted that there was no evidence that Jamie Dee or Owen Bell had changed the number plates on the caravan and he refrained from making any such finding;

• Nevertheless the possibility of a switching of plates was acknowledged in the judge’s reference to the evidence that “swapping plates does occur in the industry” (I do not read this as a reference confined to the sideshow industry);

• His Honour concluded that he was not able to place any weight on the evidence of Jamie Dee and Owen Bell. Four specific reasons were assigned and they are to be read against the background of the opportunity that the judge had to observe these key witnesses throughout the trial. I do not read them as an exhaustive list;

• The judge was “not satisfied, on the evidence, that at the time of the collision Mr Davis was in the vicinity of the collision”. The brevity of this conclusion was understandably assailed by Bell/Dee and it is unfortunate that there is not greater exposed analysis.

190 It cannot be said that the judge overlooked what I have termed the central conundrum. But it was not incumbent on him to solve the insoluble or to make a finding of fraud. His task was to determine the case on the probabilities, bearing in mind that if the respective plaintiffs could not establish on the probabilities that Bell/Dee or Mr Davis were involved, then the verdict went against the Nominal Defendant.

(c) Submissions on appeal as to identity

191 On behalf of Bell/Dee it was submitted by Mr Garling SC that the primary judge’s reasons were inadequate both in disclosing their essential steps and in establishing that Mr Dee was the driver in point of probability.

192 It was submitted that the primary judge failed adequately to explain his reasons for accepting Mr Lear’s identification and for rejecting the evidence to the contrary. In particular, the judge is said to have failed to address the conundrum stemming from Mr Lear’s evidence. Before that evidence could have been accepted it would have been essential for the judge to explain and reconcile (a) Mr Lear’s evidence that the offending truck was a pantechnicon and that the offending caravan was as he described it with (b) his equally adamant testimony about the truck and caravan photographed six months after the accident not being those involved in the accident. It had not been put to Mr Dee or Mr Elwin Bell that the plates on the photographed van had been switched; nor was there any finding to that effect by the judge. At the very least, Mr Lear’s credibility ought to have been assessed by reference to the uncertainty generated by the unresolved conundrum.

193 Mr Garling also indicated that his clients refrained from making a submission as to whether it was Mr Davis or the Nominal Defendant who ought to sustain the verdict of which they, Bell/Dee, should be relieved. Nevertheless, he pointed to the evidence of Owen Bell concerning Mr Davis’ involvement, indicating that he was still prepared to embrace it (CA Tr (2) p73).

194 Mrs Broughton was represented in this Court by Mr McIlwaine with Mr J Davidson, supported by Mr L M Morris QC who appeared with Mr J M Morris for her insurer.

195 Mrs Broughton’s primary submission was that she was not negligent, even if the judge’s findings about the mechanics of the accident were undisturbed. This has already been addressed.

196 At the hearing of the appeal, it would appear that Mrs Broughton adopted an agnostic stance as to the identity of the offending vehicle. This is understandable, given that the substitution of the Nominal Defendant, for example, in lieu of Bell/Dee leaves her with an alternative funded defendant.

197 It was, however, submitted that if there had to be a new trial referable to the identity of the driver of the offending vehicle then this did not prevent this Court from making findings and orders to the effect that Mrs Broughton bore no responsibility in law for the accident.

198 On behalf of Mr Davis, for whom Mr Seton SC appeared with Mr P Carr, it was submitted that the verdicts should remain undisturbed. The trial judge was entitled to prefer Mr Lear’s evidence as to the mechanics of the accident.

199 Mr Davis’ main submission was that the judge was fully justified in rejecting Mr Owen Bell’s evidence that Davis was the driver of the offending vehicle. Bell’s testimony implicating Davis was said to be inconsistent with the mechanics of the accident according to the findings based upon acceptance of Mr Lear’s and Mrs Broughton’s testimony in that regard.

200 Mr Davis did not confine himself to the correctness of the judge’s decision to uphold his alibi. He went further, submitting that the judge was also correct in finding Bell/Dee liable. In this regard, Davis pointed to significant credibility deficits touching the testimony of Mr Dee and Owen Bell. These included the delay in bringing forward the Davis scenario; and the fact that it was supported only by the testimony of Owen Bell, despite the latter’s evidence that Davis’ presence was noted and discussed by the two men on the day of the accident.

201 There was also a particularly discreditable snippet of evidence given by Owen Bell. At one stage he asserted that the number on the caravan being towed by Davis’ vehicle was identical, save for one digit, to that noted down by Mr Lear (Black 1039). There was no evidence from registration records to support this unlikely hypothesis and the evidence merited Mr Seton’s observation that “it was the evidence of a very desperate man”.

202 Addressing the conundrum, counsel for Mr Davis submitted that Mr Lear’s accepted testimony was to the effect that he made a positive identification on the day of the accident that the truck and caravan at the top of the hill under Mr Dee’s undisputed control was the vehicle he had seen cause the accident only minutes beforehand. The specifics of the Lear identification were embraced, involving as they did a pantechnicon truck towing a dual axle caravan with a big scrolled “M”, to which was affixed a black on white number plate with the stated registration.

203 It was submitted that these aspects of Mr Lear’s near contemporaneous identification were not undermined by the vehicle registration and insurance details relied upon as creating the conundrum already discussed. It was submitted that the highest those facts rose was to establish that, six months after the accident, Mr Dee was in control of a different truck and a different caravan. It was not incumbent on Mr Davis or the Nominal Defendant to establish what had happened to the (different) truck and van that Mr Lear observed on the day of the accident under the control of Mr Dee. The trial judge had held back from finding that Bell/Dee had swapped the plates on the caravan, but it was not incumbent on him to have done so, especially in light of the time lapse between the accident and the photographs. There was, it was submitted, material to the effect that plate swapping was a practice (CA Tr (2) p23).

204 Mr Davis further submitted that the judge’s reasons were sufficient to avoid appealable error (citing Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444). The paucity of the reasons for accepting Mr Davis’ alibi were in any event explicable because implicating him depended entirely on Owen Bell and his credibility was destroyed.

205 Mr Davis also submitted that it would not be possible to quarantine any miscarriage touching the identity issue from the question of Mrs Broughton’s negligence. Accordingly, if there were to be a new trial it would have to be on all issues. (I have already explained why the latter submission ought not to be accepted.)

206 The Nominal Defendant was represented by Mr Stitt QC who appeared with Mr D Wilson. Mr Stitt, adopted Mr Seton’s submissions on behalf of Mr Davis. He indicated that the Nominal Defendant was not going to say that Davis’ involvement was a live hypothesis (CA Tr (2) p34).

207 The Nominal Defendant put emphasis on the fact that Mr Lear’s identification was positive and contemporaneous. His credibility was accepted by the primary judge. It was pointed out, correctly in my view, that Mr Lear denied repeatedly that he had simply assumed that the caravan he saw causing the accident was the same as that inspected at the top of the hill.

208 Further corroboration of Mr Lear’s description of the truck seen at the top of the hill was said to come from the evidence of the police officer who first arrived at the accident scene. He saw two trucks parked side by side facing south, describing them as (Black 106):

[W]hite cabs, aluminium pantech backs and two persons standing beside those trucks talking, one was, one had a trailer attached and I thought that it had an aluminium-type trailer on the rear of it.

209 Like Mr Seton before him, Mr Stitt embraced the inconsistencies between Mr Lear’s description of the caravan (especially as recorded in his police statement of 28 February 2001 (Blue 15)) and the caravan shown in the photographs at Mt Isa.

210 Mr Stitt submitted that the nub of the reasons on identity was the acceptance of the credibility of Mr Lear’s testimony and the rejection of Owen Bell and Mr Dee. The case was said to be on all fours with Whisprun Pty Ltd v Dixon (No 2) [2004] HCA 2, 78 ALJR 321 given that, until the Davis scenario entered the scene late in the trial, the parties had conducted the trial essentially on the basis of the judge being asked to choose whether to accept Bell/Dee or Mr Lear. The judge was therefore entitled to approach his task this way. He did not go into all of the side issues, including the question whether there had been switching of number plates, for the simple reason that it was not necessary to do so. Mr Stitt nevertheless accepted that, if Mr Lear was correct, there must have been a change of the number plates onto the different vehicles seen at Mt Isa (CA Tr (2) p59).

211 Mr Veigel was represented in the appeal by Mr Leatherbarrow SC who appeared with Mr A Stone. Mr Veigel aligned himself with the submissions of Mr Davis and the Nominal Defendant as to the identity of the driver.

212 Mr Veigel also supported the judge’s conclusion that Mrs Broughton was negligent.

213 It was submitted that the reasons were adequate. They were brief but the reader was left in no doubt as to why the key findings were made. The unsuccessful parties know why they lost and that is sufficient to satisfy the demands of justice and to enable to appellate process to take its course.

214 There was an alternative submission with respect to reasons from Mr Veigel.

215 Judge Coorey published his reasons on 12 May 2005 when the matter was stood over to 27 May 2005 for further submissions as to costs.

216 On 19 May 2005 Mr Veigel’s legal representatives wrote to the representatives of Mrs Broughton and of Bell/Dee. The letter included the following:

We understand from discussions between Counsel that your client may have some complaint regarding the sufficiency of reasons delivered by his Honour Judge Coorey last Friday in relation to the apportionment of liability between your client and (the relevant defendant/s). We do not agree and are of the view that such reasons in relation to this and liability generally were clearly adequate. However, if you have any complaint in relation to the adequacy of his Honour’s reasons in any respect, we invite you to raise same with his Honour on Friday 27 May next when the matter is listed for approval of the settlement, formulation of appropriate orders and argument as to costs. In this regard we note that his Honour has not yet made any actual orders or entered any verdicts or judgments in the matter.

If you choose not to raise any such concerns with his Honour, we will rely upon the contents of this letter in any appeal which you may file raising such issues for the purpose of resisting same and seeking indemnity costs.

217 The proposal was not taken up. Mr Veigel submits that the failure to respond is relevant to the question of any possible miscarriage stemming from the inadequacy of the published reasons.

218 Mr Veigel submits that nothing would have been lost by raising the matter with the trial judge before he proceeded to make final orders. The judge may have declined to supplement his reasons. He may have been persuaded that he lacked power to do so or that it would be inappropriate in the circumstances. On the other hand he might, it was submitted, have been prepared to go further. At the very least those appellants now complaining about the adequacy of the reasons ought to have this matter brought into account in determining whether a new trial should be ordered, in the interests of justice.

219 I find this latest submission attractive. It gains some support from an English Court of Appeal decision which the Court drew to the attention of the parties during argument (Adami v The Ethical Standards Officer [2005] EWCA Civ 1754). There are local cases recognising that a court may, in limited circumstances, amend or supplement reasons prior to entry of judgment in order to correct certain categories of mistake (see eg Smith v Australia and New Zealand Banking Group Ltd, [1999] NSW Conv R 56,904 (55-884)[1996] NSWSC 86; , [1996] 7 BPR 15, 069).

220 It would in my view be wrong for a judge who has pronounced reasons for final judgment to make a material addition or alteration to those reasons simply because some better idea has come to mind. Sometimes, however, a judge fails to spell out what was in his or her mind referable to a particular argument, simply due to oversight. I see no reason why such an oversight could not be remedied, on application or on the judge’s own motion, in a proper case.

221 Ultimately, I find it unnecessary to pursue this matter in the present case. No one suggests that the trial judge entirely overlooked what I have termed the conundrum. His Honour stated expressly that he made no findings with regard to whether Jamie Dee or Owen Bell had changed number plates and that this matter had never been put to them. In these circumstances, it is inconceivable that the judge would have revisited this particular matter. Indeed, I think it would have been wrong for him to have done so (see Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463). Yet it is this void in the disclosed reasoning process that most concerns me (see below).

(d) Analysis

222 In my view, there must be a new trial as at the identity of the offending vehicle and its owner/driver. I generally accept Mr Garling SC’s submissions on this matter.

223 The following matters are uppermost in my reasoning on this multi-faceted issue. While none may be determinative in isolation, in combination, they have persuaded me that a new trial must be ordered.

224 First, the judge ought in my view to have addressed the tension between Mr Lear’s confident assertion that the truck and caravan at the top of the hill were those he had earlier seen cause the accident and his equally adamant assertion that the truck and van photographed at Mt Isa were not the offending vehicles. This was too significant a matter to be overlooked in the list of items (a)-(f) to which the judge did refer in his acceptance of Mr Lear.

225 I shall elaborate upon this matter and its consequences later in these reasons.

226 Second, there ought to have been a greater exposure of reasons with regard to the conclusion that the judge was “not satisfied, on the evidence, that at the time of the collision Mr Davis was in the vicinity of the collision”. I recognise that linking Mr Davis with the collision depended essentially upon Owen Bell and that he was an unsatisfactory witness. And Jamie Dee’s silence on a matter that, according to Owen Bell, was discussed between the two men and others shortly after the accident, is very significant. Nevertheless, one might have expected some analysis of the testimony of Mr Davis and his grandfather, and some advertence to the Jones v Dunkel issues stemming from the absence of Davis’ two travelling companions (on both Owen Bell’s and Davis’ own account). These matters had been addressed at trial in evidence and submissions. The reasons are silent as to whether Davis’ own testimony was accepted.

227 Standing alone, this might not have led to a new trial, but the matter does not stand alone.

228 Third, I have a concern that some of the reasoning proceeds (sub-silentio) from a justified conclusion that Jamie Dee and Owen Bell were unsatisfactory witnesses to the more contestable conclusion that Dee was driving the offending vehicle. Owen Bell was a witness, not a party. Mr Dee was a party, but he did not raise the Davis’ hypothesis in his testimony. Given that Owen Bell sought to justify his delayed identification of Davis, there should have been some explanation of the steps involved in proceeding from a finding that Dee and Owen Bell were unsatisfactory witnesses to a finding that Dee was the driver (see generally Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 694, Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360 at 365-6, Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, Martinez v Western Australia [2007] WASCA 143, 172 A Crim R 389).

229 This brings me to the fourth point. The parties defending the judgment argue that Mr Lear’s testimony remains and that it alone suffices to put Mr Dee in the frame. Mr Dee was undoubtedly driving a truck pulling a van up the hill and Mr Lear said that he had seen that very combination cause the accident. In a head to head credibility contest between Jamie Dee/Owen Bell and Mr Lear, the judge was entitled to rely heavily upon being satisfied that Mr Lear was honest and that Dee and Bell were less than honest.

230 This is undoubtedly true. But it brings attention back to the significance of the judge’s failure to address the conundrum stemming from Mr Lear’s adamant testimony that neither the truck nor the caravan photographed at Mt Isa were involved in the accident (my first point).

231 Matters become more problematic when it is seen that significant differences (vis-à-vis Mr Lear) in the identification particulars given by both Mrs Broughton and Mr Hodkinson were not considered or brought into account by the trial judge.

232 Fifth, I turn to an argument raised by Mr Veigel and the Nominal Defendant on the appeal. It was submitted on their behalf that the judge reasoned to his conclusion by simply finding (a) that Mr Lear correctly identified the offending vehicle on the day of the accident; and (b) that in the months that followed the plates on the caravan must somehow have been switched.

233 This scenario accepts, as I think it must, the evidence of registration and insurance particulars that shows that Elwin Bell owned a caravan registered F34 209 at all material times. It was Owen Bell’s mobile home and was generally towed about the country by Mr Dee. This scenario also accepts the evidence of Mr Lear and Mrs Broughton that the caravan seen at Mt Isa by the police and photographed there in August 2001 and photographed by others in November 2001 was not the offending caravan.

234 The problem for those defending the judgment on this basis is that Judge Coorey made “no findings” in regard to Bell/Dee being involved in any registration plate switching. His Honour noted that there was no evidence on that matter. No suggestion of personal involvement of this nature was put to the witnesses, with the usual consequences that their motivation for doing so and their responses to the suggestion itself were not explored. It would be unfair to find this matter against them and the judge expressly declined to do so. No such suggestion was put to Mr Elwin Bell. In these circumstances, I do not see how it is open to Mr Veigel and the Nominal Defendant to keep that matter hovering in the air.

235 The probabilities strike me as fairly strongly against a plate-switching scenario. If it was to be found that it happened, then there would need to be some analysis of the evidence and submissions as to the likelihood of the person(s) involved thinking that this would assist their cause. There is no suggestion, on the evidence, of any uninsured vehicle.

Disposition

236 I do not think that the uncertainty about identification of the driver spills over to or taints the Broughton negligence issue as Mrs Broughton submitted (CA (2) pp9-11).

237 There were three appeals before us:

(1) The Bell/Dee appeal CA 40470/05 in relation to liability and costs entered in Mr Veigel’s action (Red 262);

(2) Mrs Broughton’s appeal CA 40499/05 in relation to liability and costs entered in Mr Veigel’s action (Red 269);

(3) The Bell/Dee appeal CA 40471/05 in relation to liability (with damages to be assessed) and costs entered in Mrs Broughton’s action (Red 276). As indicated, this Court granted leave to enable this matter to be heard concurrently with the other appeals.

238 Each appeal ought to be upheld, with costs. So too should Mrs Broughton’s cross appeal in CA 40471 of 2005. Verdicts and judgments on liability should be entered in Mrs Broughton’s favour. Other verdicts and judgments on liability, in the actions and the cross-claims, should be set aside, along with ensuing costs orders. The scope of the new trial to be ordered has already been indicated. Subject to any special costs issues, the costs of the first trial touching all parties except Mrs Broughton in her status as a defendant should abide the result of the new trial. It is presently unclear whether any separate costs question remains for determination in these appeals.

239 The parties will need to prepare draft orders to give effect to this Court’s reasons and the costs consequences. They are directed to confer within the next 14 days with a view to the appellants Bell and Dee providing the Court within 21 days with a draft set of orders together with a note indicating the particular orders (if any) that are in dispute and the alternative orders proposed by the other party or parties. If it becomes necessary to do so, the matter will then be listed before a single Judge to give directions.

240 The Court was informed that, in the event that the verdict against Bell/Dee were set aside and a new trial ordered, there would be no interim claim for restitution against Mr Veigel (CA Tr (2) p49).

241 It is to be hoped that the respective insurers will give anxious consideration to mediating and resolving their differences, especially when the ultimate costs consequences will be horrendous.

242 I therefore propose the following orders:

1. Each appeal and Mrs Broughton’s cross-appeal is upheld with costs.

2. The parties are directed to confer within the next 14 days with a view to the appellants Bell and Dee providing the Court within 21 days with a draft set of orders together with a note indicating the particular orders (if any) that are in dispute and the alternative orders proposed by the other party or parties.

243 GILES JA: I agree with Mason P.

244 TOBIAS JA: I agree with Mason P.

**********




LAST UPDATED:
1 April 2008