CHOUDHARY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, HANDLEY JJA Hope AJA 24 September 1991, 24 September 1991 [1991] NSWCA 53 NEGLIGENCE — contributory negligence — apportionment — no interference with conclusions of trial judge — Pennington v Norris (1956) 96 CLR 10 and Podrebersek v Australian Iron and Steel Pty Ltd (1984-85) 59 ALR 529 applied. Samuels JA This appeal arises out of a judgment of his Honour Judge Walsh in the District Court in which he awarded the appellant damages for personal injury sustained in a motor vehicle accident which occurred on 13 December 1984 at the intersection of Alfred and Eleanor Streets, Harris Park. The circumstances of the accident may be shortly described in this way. The plaintiff (the appellant) gave one version to a police officer, Constable Rumsby, who attended at the scene, and another in evidence, but there is little difference, in my opinion, between the two accounts. Essentially, the plaintiff's version of the accident was that he was travelling in a southerly direction downhill in Harris Street, driving a Mercedes Benz motor car at, he said in his statement to the police, fifty kilometres per hour; looked to his right on approaching the intersection; and then, as he was in the act of "turning his neck" to look to the left, saw the station wagon driven by the other driver right in his path. He had no time in which to apply his brakes, struck the other vehicle broadside on and rolled it over two or three times. Both drivers sustained injury. The version of the other driver, Mrs McFarlane, was that she was driving in a westerly direction in Eleanor Street, following her husband. At the intersection, facing the direction in which the husband and Mrs McFarlane were travelling, was a Stop sign. She said that she stopped at the sign; looked up the hill; saw no vehicle approaching; and took off, intending to turn right at Alfred Street, which was the direction her husband had taken. She saw nothing of the appellant's vehicle except a flash at the last moment. The learned judge's judgment is not, perhaps, as explicit on the question of negligence and contributory negligence as it might have been - although, I should add, he dealt in considerable detail with what was a not uncomplicated case on damages. In the event, he affirmed the negligence of Mrs McFarlane, which was not in dispute; found contributory negligence on the part of the appellant; and apportioned responsibility 50/50 between the two drivers. It is from that order against the appellant that the appeal is brought. First of all, the learned judge says, quite clearly in two places in his judgment, that he did not believe the appellant's version of the accident. It was put by counsel for the appellant that there were two versions, and that it was not possible to tell precisely what his Honour meant by that comment. As I have said, to my mind, the two versions are pretty well the same; and it is clear to me that his Honour was rejecting the appellant's contention that he had no time to apply his brakes, and did not see the other vehicle until the very last moment before impact. 2 UNREPORTED JUDGMENTS L arrive at that conclusion, not merely from the way in which the learned judge dealt with the appellant's evidence, but because of the evidence of Mr McFarlane, the husband of the other driver. He had turned at Alfred Street and had stopped some distance up, waiting for his wife to catch up with him. As he was stationary there, he saw the appellant's car come over a crest, which he estimated as being 250 to 300 metres from the intersection, travelling at a high speed. Mr Regattieri levelled a good deal of criticism at this aspect of the evidence, pointing out that Mr McFarlane had at first denied his capacity to estimate speed, and had only estimated it at eighty kilometres per hour after further questions were put to him. The weight to be attached to this was essentially a matter for the trial judge, and I would infer from the form of the judgment that the learned judge at least accepted that the appellant was travelling at a high speed. That expression may be indeterminate, but I would take his Honour to have concluded that the vehicle was travelling in excess of the sixty kilometre per hour limit which obtained in the area, and at a sufficiently high speed to roll over a modestly-sized Toyota Corona station wagon two or three times. Moreover, Mr McFarlane gave evidence that he had paced the skid marks from the rear wheels of the Mercedes Benz up the hill for a distance which comes down to "about forty-eight metres" - 160 feet. Mr McFarlane paced this distance, and I would have thought his Honour accepted this evidence. It is true that there is no evidence that Mr McFarlane told the police officer, or any of the police officers who were still at the scene when he paced out this distance, what his examination had revealed. Indeed, there is direct evidence that he did not speak to the police officers at the scene of the accident. To the extent that this is of relevance, I would have no doubt that counsel at the trial put to the learned judge that it was an element which should be taken into account in discounting or rejecting Mr McFarlane's evidence. The response to such a submission, and the weight to be put upon the evidence, were both matters for the learned judge to determine. From the form of the judgment, I would have thought that the learned judge did believe Mr McFarlane's evidence about the presence of the skid marks, and their length, and about his estimate - within broad limits, perhaps - of the speed of the vehicle. Accordingly, I conclude that the learned judge, on material which certainly enabled him to make such findings, concluded that the appellant had driven down the hill at an excessive speed in the circumstances; had seen the other vehicle ahead of him in the intersection; but, because of the speed at which he was travelling, and perhaps also because of he lateness at which he observed the obstacle ahead of him, was unable to bring his vehicle to a halt before collision. It is true, as was submitted, that the learned judge did not find precisely what it was that constituted Mrs McFarlane's negligence. It may have been that she did not stop at the Stop sign or that, having stopped, she did not look to her right before making her turn up the hill. If it is supposed that it was the first omission - which is, perhaps, the more serious then the question is the comparison which the learned judge made between that departure from the proper standard of care, and the departure of which the appellant was guilty. It may be - although I would not express a final opinion upon this - that, in the circumstances, Mrs McFarlane was guilty of the greater degree of culpability, in the sense of departure from the proper standard of care, in failing to stop at the Stop sign, if that is what she did. On the other hand, it seems to me well open to conclude that the conduct of the appellant constituted a greater degree of WRUDUDHARY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Hop& AJA) causative potency, so far as the damage was concerned. Both of these elements are, of course, relevant when one is considering a calculus in this regard: see Podrebersek v Australian Iron and Steel Pty Ltd (1984-85) 59 ALR 529 at 532-3. As to the apportionment, which is really at the heart of the appeal, it is clear and very well established by cases such as Pennington v Norris (1956) 96 CLR 10 that it will only be in rare cases that an apportionment of this kind can be successfully challenged. I do not consider, myself, that this is such a case and, in my opinion, the proportion of 50/50 is not one which can be successfully disputed. I should add one thing more. It was submitted that the learned judge fell into error additionally because he failed to indicate with sufficient particularity his findings upon matters which were in critical issue in the case, thus failing to comply with the advice furnished by this Court in Mifsud v Campbell (1990) 21 NSWLR 725. I do not consider there is anything in Mifsud which suggests that a judge falls into error if he fails to mention every aspect of the evidence, or even fails to indicate every element in the reasoning. It does say that it is part of the judicial duty to indicate findings upon matters of critical importance in the case, which are the subject of dispute. I can see no failure on the part of Judge Walsh to apply those principles. Hence, although I admire the determination and ingenuity with which Mr Regattieri put his case, I remain unconvinced that the arguments have substance. I would, therefore, dismiss the appeal with costs. Handley JA I agree. For myself, I would only add that just a little under halfof the appeal book for this case consists of medical evidence in the form of reports, or the oral evidence of Dr Sinha, or the evidence of accountants, which was relevant only to the issue of damages on which there was no appeal, cross-appeal or notice of contention. The costs of preparing a little under half of the appeal book, therefore, were wasted, in any event. Hope AJA I agree. The appeal is dismissed with costs. Counsel for the Appellant: P A REGATTIERI Counsel for the Respondent: R C TONNER Solicitors for the Appellant: DLA ROSA, IZZO and CO Solicitors for the Respondent: SOLICITOR FOR GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES