Walker v Lee [2011] NSWSC 108 (3 March 2011)

Last Updated: 14 April 2011

Supreme Court New South Wales

Case Title:	Walker v Lee
Medium Neutral Citation:	[2011] NSWSC 108
Hearing Date(s):	Thursday 5 August 2010
Decision Date:	03 March 2011
Jurisdiction:
Before:	Hall J
Decision:	(1) Appeal dismissed. (2) Unless application is made within 14 days seeking any contrary order on costs, the appellant is to pay the respondent's costs of and incidental to the appeal.
Catchwords:	ADMINISTRATIVE LAW - appeal from Local Court - motor vehicle accident caused by negligent driving - extent of reasons required for decision - whether Magistrate in error for failing to explain rejection of expert evidence - opinions based on assumed facts not verified - approach to fact-finding with disputed eye-witness evidence - no question of law
Legislation Cited:	Local Court Act 2007
Cases Cited:	Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 McCarthy v NRMA Insurance [2002] NSWSC 1011 Sasterawan v Morris [2008] NSWCA 30 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
Texts Cited:
Category:	Principal judgment
Parties:	David Michael WALKER Andrew Geoffrey LEE
Representation
- Counsel:	Counsel: P: P Cummings D: G Van der Vlag
- Solicitors:	Solicitor: P: Moray & Agnew D: Streeterlaw
File number(s):	2009/297159

Judgment

1. These proceedings were commenced by summons filed on 27 November 2009 in which the appellant, David Michael Walker, appeals from the decision of the Local Court at Casino given on 5 November 2009.
   
2. The proceedings were brought in the Local Court by the respondent to the present proceedings, Andrew Geoffrey Lee, who, as the moving party before the Local Court, sought judgment in respect of a property claim arising out of a motor vehicle accident that occurred on 10 May 2008.
   
3. The respondent (Mr Lee) commenced proceedings by statement of claim in the Local Court claiming damages in the amount of $16,115.50 in respect of the loss of his motorcycle involved in the abovementioned accident. He asserted that the loss and damage sustained by him was a consequence of the appellant's negligence.
   
4. The appellant (Mr Walker) was, on the day in question, driving in a north-easterly direction on the Kyogle Road near Cawongla. He was driving a four wheel drive vehicle to which was attached a horse float.
   
5. Mr Lee alleged that Mr Walker, whilst driving his vehicle (a Mitsubishi Pajero) allowed the wheels of the trailer to cross over the double unbroken white separation lines and into the lane in which Mr Lee was proceedings.
   
6. The defence in the Local Court was dated 18 June 2009. Negligence was denied and contributory negligence was alleged against Mr Lee. The particulars of negligence were:-
   

"(a) Failing to take care of his own safety.

(b) Failing to keep a proper lookout.

(c) Driving at excessive speed in the circumstances.

(d) Driving too close to the centre dividing lane."

7. It is to be noted, as the learned Magistrate observed in his decision, that no allegation was raised in the particulars of contributory negligence that Mr Lee had driven over the white separation lines into the incorrect side of the road.
   
8. The parties to the proceedings in the Local Court had agreed on a quantum and, accordingly, liability was the only issue for determination.
   
9. On 5 November 2009, the learned Magistrate delivered an ex tempore judgment in favour of Mr Lee but found against him on contributory negligence, his claim, accordingly, being reduced by 40%. Judgment was given in favour of Mr Lee in the sum of $9,669.30 together with costs and interest from 20 May 2009.
   
10. In the summons, eight grounds of appeal were relied upon in the following terms:-
    

"1. Failing to give reasons for rejecting the evidence of the Plaintiff and by inference preferring the evidence called by the Defendant as to where the wheels of the motorcycle were on the road leading up to and at the time of impact, in circumstances where the Appellant's evidence was clear and unaltered in cross-examination and was supported by expert opinion;

2. Wrongly rejecting by inference the Appellant's evidence as to the existence of a gouge mark on the road;

3. Failing to give reasons for rejecting the Appellant's evidence as to the presence of the gouge mark on the road as a result of the collision;

4. Failing to give reasons for rejecting the evidence of the 'Traffic Engineering Expert, Michael Griffiths, as to the point of impact based on, primarily, the presence of the gouge mark;

5. [Apparently] making factual findings based upon matters not in evidence, namely:-

(a) the extent of the severity of the Respondent's injury;

(b) the contents of particulars of the Defence on which unspecified and unjustified significance was placed.

6. Failing to give proper weight to the Appellant's evidence as to his driving leading up to and at the time of impact;

7. Failing to give proper weight to the totality of the expert evidence and, in particular, the evidence as to the presence and significance of the gouge marks; and

8. Failing to apply correctly the terms of the onus of proof resting on the Respondent."

11. The appellant, Mr Walker, relied upon written submissions dated 11 May 2010. These were supplemented at the hearing of the appeal.
    
12. The respondent, Mr Lee, relied upon outline submissions dated 2 July 2010. These were also supplemented by oral submissions.
    
13. At the hearing, an application was sought to supplement the grounds of appeal with the following:-
    

"The learned magistrate erred at law in holding that:-

1. The evidence of Mr Midgley was that 'the motorcycle flipped and kept going' after the accident, and

2. that there was no evidence before the Court other than that of Mr Midgley as to where the motorcycle came to rest,

in circumstances where there was no evidence to support these findings and, in fact, the evidence was to the contrary."

The evidence

14. For the purposes of the appeal, the appellant relied upon the affidavit of Catherine Anne Freeman sworn 3 March 2010. Exhibited to Ms Freeman's affidavit were copies of exhibits tendered at the hearing before the Local Court.
    
15. In addition, a tender bundle was provided by the appellant's solicitors. This contained, amongst other documents, the transcript of the proceedings of the Local Court on 5 November 2009 and copies of statements of Mr Lee, Mr Ivan Midgley and Mr Walker together with photographs tendered as well as two reports by an expert witness, Mr Michael Griffiths, dated, respectively, 19 March and 30 April 2009.
    

Appeal provisions

16. The present proceedings are in the nature of an appeal from the Local Court, General Division, pursuant to s.39(1) of the Local Court Act 2007. Such an appeal is not at large and is confined to a question of law.
    
17. Section 39(1) of the Local Court Act is in the following terms:-
    

"39 Appeals as of right

(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law."

18. In the written submissions for the appellant, it was contended that the errors of law asserted in the present proceedings contravened principles enunciated in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 281 per McHugh JA as well as in Sasterawan v Morris [2008] NSWCA 30 (per Tobias JA, with whom Beazley JA agreed) citing with approval the dicta in Soulemezis (supra).
    
19. In addition, reliance was placed upon the proposition that a failure to give reasons on issues that concern the credibility of a witness may, in the context of a case, amount to an error of law: McCarthy v NRMA Insurance [2002] NSWSC 1011.
    
20. The written submissions for the appellant traverse in some detail the factual matters concerning the evidence surrounding, leading to and following the collision (paragraphs 22 to 53) "the physical evidence" (PE).
    
21. In paragraphs 54 to 72 of the appellant's written submissions, the central matter raised concerns what is said to have been the physical evidence on the road surface, a gouge mark and some fluid stain. The exact nature of that stain is not identified conclusively, but it is often referred to as an oil stain.
    
22. In the Local Court, Mr Walker relied upon evidence concerning the gouge mark and the fluid stain as physical evidence that identified the point of collision between the motorcycle and the right wheel of the horse float. In contrast, Mr Lee's case was that, on striking the projecting mud guard of the horse float, as indicated in Mr Midgley's evidence, the motorcycle then catapulted or somersaulted following the impact and making contact with the road surface some distance away from the point of collision and in a direction that was to some degree to the left of his line of travel.
    
23. In the course of his decision, the Magistrate made a finding to the following effect (Tender Bundle TB193):-
    

"... I cannot be satisfied that the gouge mark was caused in this collision. I am of the view that the evidence establishes that the wheels of the defendant's trailer, whilst he firmly believes otherwise, did cross onto the wrong side of the road, that was the cause of the collision. There was contribution on the part of the plaintiff ..."

24. Prior to making that finding, the Magistrate referred to the evidence of Mr Walker in which he said he saw a gouge mark and a fluid stain and that he took photographs of the same. The Magistrate also referred to the evidence as to the following matters:-
    

(1) The heavy impact between the two vehicles following which the motorcycle cart-wheeled or somersaulted down the roadway.

(2) Mr Walker's evidence concerning the gouge mark and the fluid mark and photographs taken by him of both observations.

(3) The question as to whether the gouge mark arose from the impact in the subject accident and therefore as indicating the ponit of impact.

(4) The expert evidence (of Mr Griffiths) in support of the latter contention.

25. I will refer in greater detail to the evidence concerning these matters below.
    

The vehicles involved in the accident

26. I set out below the basic factual matters concerning the vehicles and location of the accident.
    

(1) Mr Lee's motorcycle

27. The motorcycle ridden by Mr Lee was described as a red/white/blue 2007- year model, Honda, registered number VFR8800F. It suffered significant damage to the front tyre and wheel with possible damage to the front forks of the cycle, dislocation or tearing away of the white faring components on the right side of the motorcycle.
    

(2) Mr Walker's vehicle

28. The vehicle driven by the appellant was a 1999 year model Mitsubishi Pajero utility. It was towing a 2005 year model horse float which was laden with livestock (horses). The horse float was wider than the Mitsubishi vehicle.
    
29. The right side of the horse trailer was damaged in the collision. The damage was located in the front right side of the projecting mud guard. There was damage to the right front tyre of the trailer.
    

The accident location

30. The collision occurred on Kyogle Road, approximately 100 metres south of a structure referred to in evidence as the "Green House" . The road surface was sealed and dry and the speed limit was reported by police to be 100 km per hour. The accident occurred on a curved section of the roadway. It and the surrounding areas are depicted in exhibits being photographs CAF12 to the affidavit of Catherine Freeman. Photographs 17 to 24 depict the respective views of the two vehicles as they approached the curve from different directions at the location where the accident occurred.
    

The evidence before the Local Court

31. The evidence before the Local Court included statements of the appellant, the respondent and of the cyclist who was following Mr Lee, Mr Ivan Midgley.
    
32. The issue of liability turned on the question as to what were the relative positions of both vehicles with respect to the centre line of the roadway. The answer to that question involved a consideration by the Magistrate, inter alia, of evidence concerning the following matters:-
    

(1) The statements and the oral evidence of Mr Walker and Mr Lee.

(2) The statement and oral evidence of the only other witness to the accident, Mr Midgley. Mr Midgley was driving about five metres behind Mr Lee as they approached the curve where the accident occurred.

(3) Photographs taken of the accident scene, the vehicles and the position of Mr Lee and his cycle after the collision as well as photographs of the surface of the roadway in the general area of the accident.

(4) The evidence (including the abovementioned photographs) as to a gouge mark and fluid stain on the road surface.

(5) The two expert reports and the evidence of Mr Griffiths.

(6) The limited investigations made by police (Sergeant Synott). No statements were taken by police from the appellant or the respondent or Mr Midgley concerning the accident.

(7) The claim form completed by Mr Lee.

Issues on the present appeal

33. The issue for determination by the Local Court and which determined liability was a question of fact, namely, whether or not the right side wheels of the horse trailer being towed by the Mitsubishi driven by Mr Wheeler crossed the double separation lines onto Mr Lee's side of the road or whether, as Mr Walker contended, Mr Lee's motorcycle crossed the centre line and collided with the wheel of the trailer.
    
34. Although there are a number of grounds of appeal, in essence, a central complaint of the appellant is directed to the fact-finding exercise undertaken by the Magistrate including, in particular, the approach taken which led his Honour to form the conclusion he did on the issue of primary liability and the reasons given for findings and conclusions subjacent to the ultimate fact in issue.
    
35. In order to determine whether or not the grounds of appeal raise a question of law as required by s.39(1) of the Local Court Act , it will be necessary to refer to certain portion of the evidence. It will also be necessary to examine the approach taken by the Magistrate in arriving at his Honour's findings and conclusions and the factual findings made by the learned Magistrate.
    

(1) Mr Lee's evidence

36. Mr Lee made a statement dated 30 October 2009 which became Exhibit 1 in the proceedings in the Local Court. He was 33 years of age as at the date of making the statement. He gave an account of leaving home on the day of the accident at 6.45 am, Saturday 10 May 2008. He had arranged to ride his motorcycle with a group of cyclists. After stopping at Kyogle, he and Mr Midgley went on ahead of the other cyclists. This was the first occasion which he had met Mr Midgley.
    
37. In paragraph 7 of his statement he described the events leading up to the collision. He said he lent to his left as he rounded the corner on his side of the road. He said he saw the appellant's vehicle enter the bend from the other direction. He said he saw the trailer attached to it move and cross over the centre line onto his side of the road. He said that he hit the encroaching part of the trailer and ultimately fell in the middle of the road.
    
38. In cross-examination, he was asked about the nature and the conditions of the road surface. It was put to him and he agreed that there were some irregularities in the road surface and that there was some patching and potholes in it. He agreed that caution had to be exercised in order to avoid any "hazards" due to the condition of the roadway.
    
39. He said on the day of the accident he had been riding with a group called the British Motorcyclists Association. There were about 15 in the group and they were heading for Kyogle. He agreed that he travelled at 70 kph during the course of his journey towards the area of the accident.
    
40. He was asked in cross-examination about a mark on the road, post-accident. When asked whether he saw "a mark on the roadway where oil had been spilt from your motorcycle" he said he could not recall seeing any such mark.
    
41. It was further put to Mr Lee that he was travelling faster than 40 kph as he came into the bend. Mr Lee responded that he came down to second gear and that 40 kph was about the speed that was reached when changing into second gear. It was put to him that he told Sergeant Synott that he was travelling in a westerly direction at 70 kph. He denied doing so.
    
42. It was then put to Mr Lee that he had told Sergeant Synott that he was travelling at 70 kph with his speed reducing. Mr Lee again refuted that proposition.
    
43. Sergeant Synott's evidence was that whilst in hospital, Mr Lee said "his speed was 70-ish and I think I put a question mark beside that but he said he was slowing" (TB124).
    
44. In further cross-examination, Mr Lee confirmed that he gave an account to police of the four-wheel drive vehicle pulling a trailer and that the trailer moved over the centre line onto his side of the road. He said he saw "... the guard section was on my side of the road for the bang, I was off and over ..." (transcript, p.25).
    
45. Mr Lee was cross-examined about his statement in which he said he saw the trailer move over the centre line. He conceded that he had made a mistake in saying that he saw it crossing over, but he adhered to his evidence that the wheels of the trailer were, in fact, on the incorrect side of the road at the time of impact (TB67 to 69).
    
46. Mr Lee said in cross-examination that he did not see any marks or debris on the road (transcript, p.39). He repeated that he did not know whether his cycle left a gouge mark or an oil mark on the road.
    

(2) The evidence of Ivan Midgley

47. Mr Midgley provided a comparatively detailed and lengthy statement dated 29 August 2009. That statement became Exhibit 2 in the proceedings before the Court below. He was aged 47 years at the date of making the statement and said that he had driven motorcycles most of his life. He confirmed that he had not known Mr Lee before the date of the accident.
    
48. Mr Midgley said that the group of bike riders had met up at about 9.00 to 9.30 am on Saturday 10 May 2008. He said that the group was not in a hurry to get to their destination. He recalled he and Mr Lee were the first to fuel at one stop on the way. He had not been riding with Mr Lee before that time.
    
49. After setting off again, he said he followed Mr Lee for about 15 to 30 minutes prior to the point of collision. He said that he was five metres at the most behind Mr Lee as Mr Lee entered the left-hand bend just prior to the collision. He said:-
    

"Andrew was in the middle of his correct lane and I was taking the inside lane ..."

50. He said that he saw Mr Walker's four-wheel drive coming towards them. He said it was towing a dual axle horse float. He continued:-
    

"... When I first saw it, the right side wheels of the horse float were over the centre line, about a foot onto the incorrect side of the road into our lane ..."

51. He said that he saw Mr Lee leaning to his left at the time of impact and was still in control. He said:-
    

"... it was only that the trailer was on the wrong side of the road that the impact happened. It was a heavy impact and Andrew came off the bike cart-wheeling down the roadway ..."

52. Mr Midgley said that he saw debris from the bike scatter on the road surface ahead of him. He said that he approached Mr Walker and Mr Walker said to him:-
    

"You fucking motor bike riders. You're speeding."

53. I note that neither Mr Midgley nor Mr Walker himself said that Mr Walker said anything to suggest that the motorcycle had moved onto the incorrect side of the roadway. That is one aspect of the evidence to be taken into account.
    
54. Mr Midgley was asked about a letter that he signed. The date of the letter was suggested to be a date in January 2009. It was put that in it he wrote (transcript, p.48):-
    

"What I saw was the horse float was on our side of the road ..."

55. In cross-examination, it was put to Mr Midgley (transcript p.63):-
    

"Q. It happened so quickly ... that you could not possibly tell this Court that you made an accurate and clear observation of where the wheels of the horse float were in relation to the centre line at any point could you?

A. Yes, they were on my side of the road. The horse float was a lot wider than the car was."

(3) The appellant's (Mr Walker) evidence

56. Mr Walker's statement dated 26 October 2009 was tendered and became Exhibit 6 in the proceedings before the Local Court. Mr Walker said that he took some photographs "when it come [sic] apparent to me that the police weren't going to show up to take the evidence so I felt in my best interest ..." (transcript, p.79).
    
57. Mr Walker said that he took the photographs some 30 to 45 minutes after the accident. He said that he photographed a mark on the roadway which he claimed was where the impact took place. He said he also saw oil on the roadway (TB223). It is important to observe that Mr Walker did not specify any fact or matter of an objective nature that could verify or support that the mark and fluid stain were related to or caused by the accident.
    
58. In Exhibit 6, the appellant described the events immediately before the collision (paragraphs 13 to 18). He said that Mr Lee's motorcycle "moved closer to my vehicle, towards the centre of the road" and as he passed the front of his vehicle, the cycle was travelling "on the centre line and just about to cross it" .
    
59. The appellant gave a similar version to the respondent as to a statement made immediately after the accident. Mr Walker said that he said, "Fucking motorbike riders going too fast" . Again, as earlier noted, no mention is made by Mr Walker in his statement of him making any reference to the motorcycle having been on the incorrect side of the road. The failure to do so is, as earlier stated, to be evaluated with all the evidence.
    
60. In cross-examination, he identified a pool of brake oil as being located where the motorcycle came to rest (transcript, p.98).
    

(4) The evidence of Mr Griffiths

61. Mr Griffith's first report was made approximately 10 months after the accident. He based it on a review of information provided to him. He said he had been requested (report dated 19 March 2009, p.2; TB210):-
    

"... to review the available information, and, in particular, see if I could assist the lateral location of the two vehicles when they came into impact. That is, what were the relative positions of both vehicles with respect to the centre line of the roadway."

62. Mr Griffiths identified the documents available to him including the following:-
    

(1) Claim form.

(2) Plan of accident scene.

(3) Cut off copies of photographs of scene and vehicles.

(4) Ambulance report (copy illegible).

(5) Police report.

(6) Sketch plan depicting post-impact rest positions of the motorcycle and rider.

63. Mr Griffiths incorporated coloured photographs which he referred to in his report. Although photographs 29 and 30 in evidence and in the reports are far from clear reproductions, reference to a mark on the road is made on the basis of Mr Walker's assumption that it depicted the point of impact.
    
64. In relation to photographs referred to in paragraph 7.3 of the report, reference is made to a piece of debris as shown in one of the photographs which was said to depict the approximate point of impact. A note is made that documents had referred to a distinct fresh gouge mark at the northern most end of the stains. Mr Griffith noted "the gouge mark would be the strongest available physical evidence as to the location of the motorcycle shortly after impact ..." (TB230; report p.22).
    
65. Mr Griffiths again noted, based on information provided to him, there was said to be a fresh gouge mark on the northern (Mitsubishi four-wheel drive's) correct side of the road as being "sound evidence that some part of the vehicle's componentry was pushed down to the road surface in that location, as an immediate aftermath of the crash" .
    
66. He further noted that there was evidence supporting the conclusion that, immediately after impact, the bike commenced to be deflected back towards its own side of the road. He stated that (transcript, p.25; TB233):-
    

"On the reasonable deduction that the gouge was an outcome of the crash, then it has occurred soon after impact, when the forces applied on the bike were to push it downward and back towards its correct side of the road."

67. Mr Griffiths here makes plain that his analysis proceeded upon the basis that the gouge to which he referred was assumed by way of deduction to have, in fact, been caused by the collision in question.
    
68. Mr Griffiths was cross-examined at some length on the dynamics of the accident and the material concerning it.
    
69. He said in cross-examination that there was damage to the rim of the wheel of the cycle and he said that was some physical evidence of contact and that this would have resulted in the bike being deflected away (TB115).
    
70. Mr Griffiths was asked about the evidence given by Mr Midgley (TB117:-
    

"Q. So you've heard Mr Midgley's evidence is that there's the collision?

A. Yes.

Q. And he describes the vehicle as going forward?

A. Yes.

Q. I think he used the word 'catapulting'?

A. Yes, yeah, so the front of the bike could've had that engagement with the front wheel of the trailer of the mud guard of the trailer and its been deflected a bit to its left but also at the same time, if it stopped it dead which it could have, it could have then caused the bike to rear up on its rear and for it to do a tumbling action ...

Q. And of course in the process of catapulting, it then comes down on the roadway and of course then there would be fluid all over the road?

A. Yes."

71. A little later it was put (TB118):-
    

"Q. In the way the plaintiff has described the accident, he has the vehicle going forward?

A. Yes.

Q. And coming to rest in that patch then on that version would be where the bike came to rest?

A. That's your proposition?

Q. Yes?

A. I accept that proposition, yes."

72. The reference to "that patch" , in context, was referring to what was earlier termed "the large patch of oil fluids" (TB118 at line 4).
    

Analysis

73. It is plain from his reasons for decision that the Magistrate preferred the evidence given by Mr Lee and Mr Midgley as to the respective positions of the vehicles on the roadway leading up to the collision.
    
74. In a case involving disputed evidence between two eye-witnesses (in this case the parties to the proceedings), it is commonplace for the tribunal or court determining the proceedings to assess the reliability of the evidence of one of the parties over the other and, where possible, take into account any corroborative evidence. The fact that an independent witness gives the same version of events as that given by the claimant in the Local Court is obviously an extremely important matter to be brought into the resolution of the matter.
    
75. In relation to Mr Walker's evidence of having seen a gouge mark and fluid on the roadway, it was incumbent upon the Magistrate to assess the cogency and significance of his evidence in that respect. It is to be noted that in his statement in relation to his observations as to those matters, Mr Walker did not provide any basis or points of reference whereby he formed the view that the gouge mark was, in fact, related to or caused by the accident. In this respect, in paragraph 24 of his statement, he stated, without more, that "a gouge mark was left in the roadway as a result of the accident and some fluid stains were also present on the road following the accident" .
    
76. What Mr Walker's statement did not include was any information as to how and why and on what basis he determined or assessed that the single mark on the road which he photographed could be related back to the exact location of the impact between the two vehicles.
    
77. To support his determination or assumption, it would have been necessary for Mr Walker to have provided factual material, based on his own observations. Such material may, for example, have been that he was able to determine that the gouge mark did, in fact, arise out of the collision by referring to evidence that affirmatively indicated that the location of the gouge mark was in the same location as the point of collision. In this respect, Mr Walker did not suggest in his statement that he saw signs of the collision around the area of the gouge mark (eg debris from one or both vehicles). Had there been any such corroborative evidence, the Court below would have been in a better position to evaluate his evidence that the gouge mark resulted from the collision.
    
78. The reasons for the decision are set out at TB134 to TB139. In the course of providing reasons, the Magistrate made the following observations:-
    

(1) He did not intend, having regard to the concessions made by the parties as to the "narrow issue" in the case, to summarise in detail the evidence of all of the witnesses. His Honour, however, said that, for the purposes of his determination, he would refer to the "salient points" (TB135).

(2) Mr Lee had suffered relatively serious injuries and his memory of the collision was described as "sketchy" .

(3) The version of the events given by the appellant and the respondent were in conflict. It was by reason of the conflicting accounts given by Mr Lee and Mr Walker that the Magistrate proceeded to analyse the evidence of each of them and the evidence given by Mr Midgley and Sergeant Synott.

(4) Mr Lee, his Honour noted, gave to Sergeant Synott whilst in hospital an early consistent account, namely, that the horse trailer had moved into his path.

(5) In the lead up to the accident, Mr Midgley was following close behind Mr Lee. Mr Midgley was therefore in a position to observe the events unfold in front of him. Mr Midgley's evidence was that he did, in fact, see the respective positions of the vehicles. The Magistrate also noted that Mr Lee and Mr Midgley had only met for the first time on the date of the accident.

(6) Mr Midgley's detailed account was set out in the Magistrate's decision. His Honour noted that it was consistent with Mr Lee's account (TB137):-

"The plaintiff says essentially the same thing in the events leading up to the conclusion (as Mr Midgley) but not in as much detail."

(7) Soon after the accident, Mr Walker got out of his vehicle and said to Mr Midgley "You fucking motorbike riders, you're speeding" or words to that effect. The Magistrate noted that it was significant that in that encounter, Mr Walker did not say anything to suggest that Mr Lee's motorcycle had been on the wrong side of the road.

(8) The Magistrate expressly considered the version of events given by Mr Walker. In the course of doing so, his Honour noted the evidence that established that the trailer attached to Mr Walker's vehicle was wider than the four wheel drive vehicle itself by about 50 mm on either side.

(9) The Magistrate noted that Mr Walker had been "absolutely unequivocal" in respect of photographs he had taken depicting what he said were oil or fluids and that there was a gouge mark on his side of the roadway. His Honour noted that Mr Griffiths had adopted Mr Walker's account in this regard in expressing his opinion. It was noted that the report was made some nine months or so after the collision. When he inspected the site in April 2009, Mr Griffiths said the mark had been eroded by wear and weather. He noted that his conclusions were based largely on what he had been told as to the location of the gouge marks.

(10) The Magistrate took issue with the defendant's submission that the gouge mark "... truly represent the only objective evidence before the Court" . The Magistrate noted the series of four photographs in Exhibit 9, the damage to the horse float and also of the motorcycle lying on its side and a further photograph showing it upright. Reference was made, in particular, to what was described as the other objective evidence, namely, the picture of the motorcycle lying on its side. The Magistrate noted, "There is no evidence before the Court other than that of Mr Midgley as to where the motorcycle came to rest" (TB138). The Magistrate noted, "... The evidence of Mr Midgley is that the motorcycle flipped and kept going, as it were, and finished up facing back in the direction that he and Mr Lee had come from on the side of their lane of travel. This is clearly depicted in the photograph which is on the top right of Exhibit 9 and I find as a matter of fact that that is the position the motorcycle came to rest in after the collision" (TB138 - TB 139).

79. I do not consider there is any valid criticism to be made of the Magistrate's abovementioned statement, in particular, the reference to the fact he "took issue" with the proposition that the gouge mark was the only objective evidence in the proceedings. It depends on precisely what he intended by the word "objective" . The fact of the matter is that he found Mr Midgley to be a reliable, independent witness who in fact corroborated the evidence of the plaintiff in the proceedings below. The eye-witness evidence of such an independent witness could be said to be "objective" in that it was not tainted or motivated by any prior relationship which he had with the plaintiff or by reason of any other matter established in evidence.
    

Conclusions of the Magistrate

80. Following a review of the evidence, including in particular, the matters to which I have referred above, his Honour referred to certain inconsistencies in the evidence provided by Mr Lee and Mr Midgley and also equally noted that there were inconsistencies in the evidence of Mr Walker.
    
81. The learned Magistrate stated that he was not of the view that the inconsistencies in the evidence, so far as Mr Lee was concerned, impugned his evidence or damaged his credibility. That was clearly a finding of credit favourable to Mr Lee. It is clear that the Magistrate's acceptance of Mr Lee was, at least in part, due to the independent evidence of Mr Midgley.
    
82. Whilst his Honour noted that Mr Midgley gave evidence as to some "memory issues" that he had following an accident of his own, those deficits were largely confined to remembering dates and times. It is clear that the Magistrate accepted Mr Midgley's version of events, noting that his more detailed version was consistent with Mr Lee's version, which was accepted.
83. The factual account given by Mr Lee was, in fact, fully corroborated in detail by Mr Midgley on all relevant matters. Although both were cross-examined on various aspects suggesting possible unreliability in their respective observations of events preceding the accident and on the subject of the gouge mark and the fluid stain on the roadway, this was a case in which the Court below, not surprisingly, searched for a means of resolving the conflict by looking at all of the circumstances including the evidence of the corroborating witness.
    
84. As earlier noted, from the earliest time, Mr Lee provided an account to Sergeant Synott whilst he was still in hospital after the accident and that account was consistent with the evidence he gave to the Local Court.
    
85. The Magistrate was entitled to weigh in the balance the fact that, whilst it might be expected that Mr Walker would have said something to Mr Midgley had Mr Lee been on the incorrect side of the road, he did not but referred only to the speed of Mr Lee. Silence in those circumstances would constitute some evidence a tribunal of fact would be entitled to bring into the balance in determining, on the balance of probabilities, the facts of the accident.
    
86. In determining the probabilities and the consistency of the account given by Mr Lee and Mr Midgley, the Court was entitled to consider the surrounding circumstances including the relatively narrow road, the tight corner, the fact that the horse trailer was wider than the four-wheel drive vehicle and the fact that, without due care being exercised, the trailer wheels could easily move over the centre line as it rounded the curve. These, of course, are only incidental factual maters that are consistent with the plaintiff's version. It is clear that the Magistrate did have some regard to these circumstances and was fully entitled to do so in determining the ultimate fact in issue.
    
87. Although Mr Walker photographed the gouge mark to which he referred in his statement and evidence soon after the accident, as I have earlier stated, he did not provide any evidence as to any points of reference or corroborative material that established that the mark was in fact at or near the precise point of impact between the two vehicles. It is clear, of course, that he assumed that the mark was related to the collision but there would be need for some evidence to corroborate that his assumption was correct.
    
88. The location of the gouge mark has to be considered in the total context of the evidence as to the dynamics of the accident and the path which the motorcycle took following impact. The description given by Mr Midgley is that the cycle made contact with the right mud guard of the horse trailer and immediately on contact catapulted or somersaulted and, at some point, made contact with the road surface some distance away and eventually at a point of rest that was depicted in the photographs.
    
89. Mr Midgley, in his statement (paragraph 11) described the events:-
    

"... It was only that the trailer was on the wrong side of the road that the impact happened. It was a heavy impact and Andrew came off the bike, cart wheeling down the roadway ..."

90. In oral evidence, he was asked as to what happened at the point of collision. He said that the bike "somersaulted" (TB103). He was referred to his statement when he said the bike went off to its left and landed on the left side edge of the correct lane to which Mr Midgley said, "Yeah, after it somersaulted" .
    
91. He said he saw oil and other debris "everywhere" . When asked where, he replied, "Where the bike ended - where the bike was just lying there, there was bits and pieces from the corner spread right down around the, around the - from way back up here right round there was bits and pieces everywhere" (TB104).
    
92. He was then asked, apart from where the bike ended up, whether he recalled seeing oil at any other place on the road. He responded, "No, not really, I didn't, I didn't sort of have much of a look for it" (TB105).
    
93. I have earlier referred to observations made by the Magistrate in the course of his Honour's reasons. At the conclusion of his analysis, the learned Magistrate stated (TB139):-
    

"... Taking into account the width of the trailer, the narrow road, the windy road and the evidence of the defendant that when he first saw the plaintiff's motorcycle it was in the plaintiff's lane of travel, not on the incorrect side of the road, given the short distance or given the very short time frame between first seeing the motorcycle and the point of impact, I am of the view that the plaintiff's motorcycle was on its correct side of travel. I cannot be satisfied on the balance of probabilities, and whilst it is not for the defendant to prove anything, I cannot be satisfied that the gouge mark was caused in this collision. I am of the view the evidence establishes that the wheels of the defendant's trailer, whilst he firmly believes otherwise, did cross onto the wrong side of the road that was the cause of the collision ..."

94. I am of the opinion that Mr Walker's observation that he saw a gouge mark and fluid stains on the roadway, without more, did not establish that those matters had, in fact, resulted from the particular collision in question. It is clear, based on Mr Midgley's account, that after the cycle catapulted or somersaulted, it then landed some distance to a point shown in the photograph where Mr Midgley identified there was much debris strewn about in that location.
    
95. The question of the gauge mark and the stain on the roadway was not a matter overlooked by the Magistrate. Indeed, his Honour gave it specific attention and referred to relevant evidence when examining its possible significance.
    
96. There was, in my opinion, a sound basis for the Magistrate's conclusion that it had not been established that the gouge mark was a result of the subject accident. Even if his decision was wrong as a matter of fact (which, as I have stated in my opinion, it was not), no question of law could thereby arise.
    
97. Whilst expert evidence as to physical evidence found at an accident scene can be of assistance in reconstructing pre-accident events, the evidence was, not in my opinion, such as to require a finding or a conclusion contrary to that which the learned Magistrate determined. Indeed, upon a close review of the evidence, I am of the view that the fact finding process and conclusions expressed by the Magistrate are beyond criticism.
    
98. It is unnecessary here to review the well-known principles enunciated in Soulemezis (supra) and cases that have applied those principles. It is unnecessary in a case such as the present involving a collision between two vehicles for a Magistrate to give an elaborate discussion of the evidence and the issues raised in the course of cross-examination of the witnesses.
    
99. Furthermore, I do not consider that the appellant has identified a question of law or an error concerning such a question.
    
100. In Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139, Glass JA stated (at 156):-
     

"... To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal ...

A finding of fact in the Commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date. Further, an ultimate finding of fact, even in the absence of misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made ..."

101. I have determined that the following orders should be made:-
     

(1) Appeal dismissed.

(2) Unless application is made within 14 days seeking any contrary order on costs, the appellant is to pay the respondent's costs of and incidental to the appeal.