iN THE HIGH COURT OF AUSTRALIA settee teteneeeteseeees DASHOLAS..ccccccceeseenece teense ve REASONS FOR JUDGHIENT Judgment delivered at... OLIN EY ccc RM73/30063 DASKOLAS v. CAMPBELL ORDER Appeal dismissed with costs. DASKOLAS CAMPBELL JUDGMENT McTIERNAN A.C.J. DASKOLAS CAMPBELL The action was brought in the. Supreme Court of New South Wales. The issues at thé trial were: _i. Was a collision between two motor cars due to negligence on the part of the appellant, the driver of one of the motor cars? The respondent was the driver of the other motor car. 2. Was the respondent guilty of contributory negligence? The trial judge found a verdict for the defendant (appellant). The plaintiff (respondent) appealed to the Court of Appeal of the Supreme Court. By a majority the Court set aside the verdict and granted a new trial of the action. The defendant has asked this Court to set aside the order for a new trial and to restore the verdict given in his favour by the learned trial judge. The appeal is by leave of this Court. The application for leave to appeal was strenuously opposed on behalf of the respondent. The learned trial judge, McClemens C.J. at C.L., in concluding the reasons why he found for the defendant said: ".,. I do not think that there is any doubt that Miss Campbell was driving in a careless fashion herself and that alone and not any breach of any traffic regulation, breach of duty or any careless driving by the defendant in the slightest way contributed to this accident.". These words involve a positive finding for the defendant on the issue of negligence. It would appear from the judgments delivered in the Court of Appeal that the majority, Reynolds J.A. and Hutley J.A., did not form the opinion that there was proof of negligence on the part of the defendant and in fact they declined to enter a verdict for the plaintiff. They decided to set aside the verdict only to enable a new trial to be had. A new trial is not granted ina civil case unless it is necessary in the interests of justice. The ground upon which the order for a new trial of this action is based was that the defendant said that certain traffic lights were amber at the time of the accident but the evidence of the witness whom the defendant called could lead to the conclusion that those lights were then red. The trial judge accepted the evidence of the witness entirely. He regarded the defendant as a truthful witness but considered that his observation of the colour of the lights was at fault. This "area" of his evidence only the trial judge said he did not accept. The only ground of appeal upon which the plaintiff relied before the Court of Appeal was that the trial judge was in error in rejecting the defendant's evidence that the lights in question were amber. The witness called by her, who was a passenger in her motor car, said in his examination in chief that the lights were green. He adhered to that evidence in his re-examination. The suggested error is not one of law. It cannot be presumed in fact that the lights were amber. The learned judge regarded the evidence of the witness whom the defendant called as more worthy of belief than the evidence of the plaintiff. The learned judge decided the case on the evidence he accepted as truthful, that is to say, the evidence of the defendant other than his evidence as to the colour of the traffic lights and the evidence of Mrs. McGrath, the witness called by the defendant. On the whole of the evidence on the issue of negligence, it is not open to hold that a miscarriage of justice or a substantial wrong was occasioned by the mistrust by the judge of the defendant's observation of the lights and it is not necessary to have a new trial (Hale v. Victorian Railway Commis- sioners (1953) 87 C.L.R. 529 at p.535, per Dixon C.J.). I would allow the appeal, set aside the order for a new trial and order that the verdict for the defendant be restored. JUDGMENT DASKOLAS CAMPBELL GIBBS J. STEPHEN J. MASON J DASKOLAS ov. CAMPBELL This is an appeal from an order of the Court of _ Appeal of New South Wales setting aside, by majority, a judgment for the appellant (the defendant in the action) and ordering anew trial. The action, which was heard by McClemens C.J. at C.L., was one in which the respondent. (plaintiff) sued for damages for personal injuries sustained in a traffic accident 'which occurred at the intersection of Canterbury and Kingsgrove Roads, Belmore, on the night of 2nd January 1972, when a Volkswagen car which the respondent was driving came into collision with another car driven by the appellant. The facts may be shortly stated. The respondent's case, resting largely on her evidence, was that she was travelling in a westerly direction along Canterbury Road as she proceeded in the outer lane of traffic towards, the intersection. As the car in front of her signalled its intention to make a right- hand turn she moved into the inside lane about 100 yards from the intersection. As she crossed the line at the commencement of the intersection the traffic lights there were showing green in her favour, changing almost immediately to amber as she began to cross the intersection. She was then hit by the appellant's car in the intersection; she had first seen this car immediately before the accident as it was proceeding in the opposite direction along Canterbury Road before it 'commenced to make a right-hand turn. Although the respondent admitted to the police that she was travelling at 40 m.p.h. and there was other evidence to this effect, she said in evidence that her speed was "about" 30 m.p-h. It should be mentioned that in the inside lane of Canterbury Road on the western side of the intersection there were some parked cars, with the result that it was necessary for the respondent to move back to the outside lane as she crossed, or after she crossed, the inter- section. The appellant's account of events was that he was driving in an easterly direction along Canterbury Road in the outside lane with the intention of making a right- hand turn into Kingsgrove Road. He said: "When I approached there the lights were green and I stopped, and then after that the yellow lights came on and on the other side of the road there were four cars stationary." He marked a sketch plan showing the stationary cars in the central lane facing in a westerly direction, presumably waiting to make a right-hand turn across his bows into Kingsgrove Road. The original sketch plan, which was an exhibit and was last in the possession of the appellant's solicitor, cannot now be found. As far as we can judge from a photocopy of the sketch plan, the appellant marked the position of his car as it stopped adjacent to the centre line of Canterbury Road on his correct side of that road in advance of the traffic lights facing him at the com- mencement of the intersection. In part this is confirmed by the following question and answer: 1g, Right on the centre line? A. Yes." He did not by his evidence suggest that he had then commenced to turn to the right or veered to the right. The sketch plan shows his car facing along Canterbury Road. The appellant's account continued: "Q. What happened then? A. Well, I put the first gear to take off, then before moving the car I saw that car coming very fast, then I hit the brakes and I stopped. I saw that car from far away and I stopped. Q. What were the lights then? A. They were yellow. I saw that car coming and I stopped, but the car did not stop and was going very fast and as it was coming it did not follow a straight line down here -- , Q. You draw the line it followed. A. (Witness complies) The car came this way and hit me at the front of the car. Q. Where were you then? Draw yourself in red. A. (Witness complies) At that moment I was somewhere about there." As we read the sketch plan the appellant then marked it so as to show that at the moment of impact his car had moved from its earlier position as shown on the sketch plan by about a car length and that it had commenced a turn to the right. His evidence and the fact that he marked the position of his car twice makes it clear that his car had moved from the position in which it initially stopped. The sketch plan is too rough to enable one to estimate with accuracy the car's precise location in relation to the centre line of Canterbury Road, although we infer from the sketch plan and the appellant's evidence that he had initially stopped "right on the centre line", that his additional movement took him over the centre line. The appellant also drew on:the sketch plan a line showing the path of the respondent's car. The line placed that path in the inside lane of Canterbury Road up to the intersection, then veering to the outside lane where the collision occurred. The appellant stated that his car was not moving at the point of impact, that it was hit "exactly at the front" and that he did not see the lights facing him in Canterbury Road turn red. He said: "The moment we had the collision they were yellow." Counsel for the respondent did not cross-examine the appellant, no doubt because the appellant had given answers which indicated that he had moved from his initial stationary position in the intersection and collided with the respondent's vehicle and had stated on no less than three occasions that he turned right and that the collision occurred when the lights facing Canterbury Road were amber. At no time did he depart from this version of events. Police evidence as to the point of impact was not available. Constable Tuchin, who interrogated the parties after the collision, gave evidence of what they then said. Their statements differed from their evidence. The appellant said he made his right-hand turn after the lights turned red when he was.hit, but he did not maintain this claim in evidence. The respondent stated that she was' travelling at about 40 m.p.h. An independent eye-witness, Mrs. McGrath, said that she and her son narrowly escaped being struck by the respondent's car as it hurtled to the side of the intersection after the collision. She was walking in a northerly direction up Kingsgrove Road on its western side to the corner of Canter- bury Road where her son was waiting for her. As she walked up to the corner, close to her son, the "Walk" sign was on, facing pedestrians wishing to cross Canterbury Road. At that instant the traffic lights were therefore showing red to traffic proceeding along Canterbury Road. After exchanging a few words with her son they turned to walk along Canterbury Road to the west when they heard the noise of the collision, turned around, and saw the respondent's car coming towards them. It is evident that Mrs. McGrath did not see the car before the collision. She said that when she first saw the respondent's car immediately after the impact it was on its "correct side of the road near the centre line. She estimated its speed at 40 m.p.h. when she saw it, but it is evident she was not well placed to estimate its speed with any accuracy and she could not speak of its speed before the accident. Mrs. McGrath had seen the appellant's car as she was walking up Kingsgrove Road to the corner. According to her, it was then stationary "just past the crossing" (that is, the pedestrian crossing traversing Canterbury Road), waiting to make a right-hand turn.. It appears that she marked it on the sketch plan as occupying a position almost identical with the initial position attributed to it by the appellant. The primary judge, after giving expression to his regret that there must be a verdict for the appellant and to his strong view that our system of liability is "half a century at least out of date", stated that in his view Mrs. McGrath carried complete conviction and that the appellant was "substantially a witness of truth", although in one respect his evidence could not be accepted. His Honour, referring to the appellant, then said: "He says that he was coming along there, he came on the amber light, pulled towards the centre of the road and stopped there. It is true that he never saw the red light come on, but there is a very interesting piece of evidence in that the "p" fixed by Mrs. McGrath as the position where she saw this car for the first time is almost in the centre of the road, and she drew on this plan, Ex. 3, the course of the vehicle." He went on to say that the respondent was negligent and that her negligence was solely responsible for the accident. His Honour did not specify in what respect she was negligent, but by implication from what had been earlier stated it appears that she went through a red light and was travelling at an excessive speed. The majority in the Court of Appeal (Reynolds and Hutley JJ.A.) ordered a new trial on the ground that the primary judge was under a misconception as to the critical facts. In our view the majority in the Court of Appeal was clearly right in concluding that the primary judge was under a misconception. In other circumstances we should have been disposed to have substituted a judgment for the plaintiff in lieu of ordering a new trial, but as there is every possibility of a finding of contributory negligence, with consequential apportionment, it is as well to allow the order for a new trial to stand. . A discussion of the reasons of the primary judge must begin with the observation that it is remarkable that he refused to accept the one important fact which was common ground between the appellant and the respondent, that the collision occurred when the traffic lights were showing amber to traffic proceeding along Canterbury Road, a fact which was consistent with the respondent's case that she entered the intersection on the green light which immediately changed to amber, confirmed by the appellant's evidence that he entered the intersection on the green light, stopped and began his turn on the amber light. The rejection of all this evidence was the more remarkable because it provided a persuasive explanation of-how the accident occurred, albeit one which involved negligence on the part of the appellant in that he failed to make a right-hand turn with safety. We turn now to the considerations which led his Honour to take a different view of the matter. They centre predominantly on his acceptance of Mrs. McGrath. The written record of her testimony does not convey the illumination which his Honour was able to extract from her spoken words. It was quite permissible for his Honour, as he did, to accept her evidence that the "Walk" sign was on as she walked up Kingsgrove "Road to the corner and to conclude that the red light was then showing to traffic proceeding along Canterbury Road. But her evidence is not sufficiently precise as to the lapse of time to enable one to conclude with accuracy how long it was before the accident that the light was as she saw it. Her description of the speed of the respondent's car which seems greatly to have impressed itself on the primary judge was not, we should have thought, a matter of considerable significance. She was speaking of the car after the accident as it hurtled towards her over a short distance - a situation in which it would be extremely difficult to form a reliable estimate of speed. Consequently, accepting what Mrs. McGrath had to say, it does not in our view constitute a sufficiently comprehensive foundation 8. for rejecting the version of events given by the parties. The two sentences from the reasons for judgment then reveal that his Honour was labouring under some miscon- ception as to the evidence, in particular as to the evidence given by the appellant. The judge thought that this finding of fact involved a rejection of one aspect only of the appellant's evidence, namely, that he commenced his turn on the amber light, whereas according to his Honour the turn commenced on the red light. In referring to the appellant's evidence the judgment proceeds: "He says that he was coming along there, he came on the amber light, pulled towards the centre of the road and stopped there." That was not correct; the appellant did not say that he entered the intersection on the amber light or that he pulled to the right. He said that he entered on the green light, stopped in the intersection and proceeded to commence his right-hand turn with the amber light, that is, at a time when it was possible that cars travelling along Canterbury Road might enter the intersection. It follows that the judge was in error in thinking that in one respect only, namely, that the appellant did not see the red light, was the appellant's evidence inconsistent with the facts as found. Why in this connection his Honour attributed so much significance to the position of the respondent's car as placed by Mrs. McGrath on the sketch plan is not apparent to us. It placed the position of the car on its correct side of Canterbury Road in the outside lane immediately after the accident. That it confirms that the respondent veered into the outside lane and that the collision occurred there is not, 9. we think, inconsistent with the respondent's case because, naving regard to the parked cars which she observed in Canter- * pury Road, she was faced with the necessity of moving into that lane. The facts as found are inconsistent with the 'evidence of both parties. No explanation is offered for the appellant's failure to observe the red light and for his failure to give an account of events which was so much more to his advantage, if it were true, than that which he gave in evidence. Moreover, his Honour failed to appreciate that there was an inconsistency between that part of the appellant's evidence which he overlooked and the evidence of Mrs. McGrath. According to her evidence, if it has the probative value attributed to it by his Honour, the appellant was stationary in the intersection before the collision at a time when the traffic lights facing him were showing red. Why he should remain stationary in the intersection at that time, instead of proceeding to make his right-hand turn, is not evident. But what is more important is that on the appellant's evidence he was stationary in the intersection when the lights facing him were green, as might be expected. The failure to advert to this inconsistency between Mrs. McGrath and the appellant _is to be attributed to the initial error in thinking that the appellant said that he entered the intersection on the amber light. In the result we are of opinion that the primary judge was under a misconception as to the facts. This conclusion does not involve a departure from his Honour's assessment of Mrs. McGrath as a credible witness, but it does 10. reflect a very different evaluation of the probative value of her testimony in relation to the precise issues of fact which arose for determination. An appellate court is understandably reluctant to reverse a trial judge's decision on an issue of fact which turns on the credibility of witnesses, but in this case the Court of Appeal was right to order a new trial because in our 'view the learned primary judge was under a serious misconception as to the facts and the effect of the oral evidence which was given. In coming to this conclusion it should not be thought that we entirely agree with the analysis of the evidence contained in the majority judgments in the Court of Appeal. That is why we have set forth our reasons at some length. In the result we would dismiss the appeal.