VUKOVIC v RIZK SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, CLARKE and Cripps JJA 22 April 1992, 8 July 1992 [1992] NSWCA 263 NEGLIGENCE — contributory negligence apportionment — challenge to — young girl struck near but outside pedestrian crossing — 50/50 apportionment undisturbed on basis of evidence accepted and confirmed by contemporaneous police notebook. Talbot-Buff v Holloway (1990) 12 MVR 70 applied. JUDGES — adverse comment on emotional response of father seeing daughter injured in motor collision — need for restraint in judicial comment. NEGLIGENCE — motor vehicle impact — impact near pedestrian crossing — conflict of testimony — trial judge (Conomos DCJ) finds negligence but apportions 50% contributory negligence — appeal to Court of Appeal — held: (1) Appellate restraint in disturbing the apportionment was required because of (a) the general principle limiting interference in such apportionments. Pennington v Norris (1956) 96 CLR 10, 16; Talbot-Butt v Holloway (1990) 12 MVR 70 (NSW CA) applied; and (b) the trial judge's preference for the evidence of the driver over that of the pedestrian based on the impression of them as witnesses. Dawson v Westpac Banking Corporation (1991) 66 ALJR 94 (HC) applied; (2) Upon the facts as accepted the apportionment was unassailable; (3) The contemporaneous record of the police notebook admitted into evidence did not provide incontrovertible facts to permit the Court to set aside the conclusions of the trial judge and reach conclusions of its own. Chambers v Jobling (1986) 7 NSWLR 1 (CA) consd; (4) Appeal dismissed with costs. JUDGES — comment on witnesses — observations by Kirby P on the need to avoid irrelevant homilies and reflections upon the unmanly behaviour of an injured plaintiff's father in respect of a "lady driver" as not germane to the issues of negligence and contributory negligence to be tried — need for awareness of different reactions according to different cultural norms in modern Australian society mentioned. Motor Vehicle Regulations 1935, Reg67(2)(b). Kirby P This is a plaintiff's appeal in a damages case. The applicable principles of appellate restraint The appeal challenges a determination by Conomos DCJ in the District Court of an apportionment of contributory negligence to the appellant. Originally, the appeal started as a challenge to the finding that the appellant was "guilty" of contributory negligence at all. However, as the oral argument proceeded, it was ultimately conceded that some contributory negligence had been shown. But it was said that this should have been apportioned at 10% and not the 50% as found by Conomos DCJ. The principles restraining appellate intervention in such apportionments are repeatedly stated. See eg Pennington v Norris (1956) 96 CLR 10, 16; Watt v Bretag (1982) 56 ALJR 760 (HC) at 761; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529; 59 ALJR 492 and Talbot-Butt v Holloway (1990) 12 MVR 70 (NSW CA). The reason for caution on the part of appellate courts is 2 UNREPORTED JUDGMENTS that the issue to which the statute directs attention in apportioning contributory negligence is the plaintiff's "share in the responsibility" for the damage suffered. This "share' is determined by reference to the ample criteria of "justice and equity". Because factual differences are virtually infinite, the criteria applied enigmatic and the evaluation of the facts against those criteria well entrusted to trial judges, appellate courts tend to affirm the trial judge's assessment unless a case of clear error is shown. In part, this is because, of necessity, an appellate court tends to see the evidence in a somewhat disjointed and selective way, whereas a trial judge will usually observe it unfold, in its entirety and in a more logical sequence. The appellant accepted the threshold difficulty presented by these principles of appellate restraint. Also accepted was a further difficulty presented in this case because of the way in which the trial judge resolved a conflict of evidence between the witnesses who were called before him. By conventional theory, often and recently repeated in the High Court of Australia, this Court must defer to the primary judge's resolution of central issues dependent upon an evaluation of truthfulness of evidence unless the judge's conclusion conflicts with incontrovertible facts objectively proved or is otherwise palpably erroneous. See Dawson v Westpac Banking Corporation (1991) 66 ALJR 94 (HC), 105 and the cases there cited. The appellant said that the necessary conditions for overcoming the conclusion of the trial judge existed in this case, that there was a clash with incontrovertible evidence; that the judge's conclusion was palpably wrong and that this Court was fully able (without seeing the witnesses) to substitute its own apportionment for that of the trial judge. In essence, the appellant complained that the judge had approached the resolution of the facts in a less than fully temperate way, allowing his feelings about the perceived over-reaction of her father, when he saw her injured, to cloud a dispassionate evaluation of the culpability respectively of the appellant and the driver who struck her. In order to evaluate these submissions it is necessary to consider the primary facts; the way in which Conomos DCJ resolved the issue before him; and the arguments of the parties before this Court. A contested issue of contributory negligence The finding of contributory negligence was made by Conomos DCJ in the separate determination of the issues of liability which his Honour ordered in this case. Subsequently, damages were assessed. His Honour found that the judgment for the losses proved would be $87,924.21. In the light of the finding of contributory negligence apportioned at 50%, this judgment was reduced by half. It is against that reduction that the appellant appeals. The appellant is Ms Anne Vukovic. She was aged 17 at the time of her accident. The primary facts were simple enough. The accident occurred on 16 June 1982 in the early evening. The appellant was crossing South Parade, Auburn. She came into collision with a motor vehicle driven by Ms Mouna Rizk (the respondent). The appellant had just finished her work at a milk bar near the Auburn Railway Station. She was crossing the road to where her father was waiting in a car to take her home. He was stationary on the far side of South Parade waiting for her to join him. The appellant left the railway station, joined the footpath and proceeded to cross South Parade. A metal barrier restrains pedestrians entering South Parade at this point except for an interval directly in front of a marked pedestrian crossing. Therefore, by inference, at some time during the crossing the appellant crossed the road within the pedestrian crossing. URJ VUKOVIC v RIZK (Kirby P) 3 At this point, the versions of the appellant and the respondent diverge. According to the appellant she looked from left to right and then left again and started to cross the road. She was then struck by the respondent while she was still within the pedestrian crossing. Upon such a case, if accepted by the trial judge, it is undisputed that the appellant would have been entitled to full damages, without reduction for any contributory negligence on her part. It is the obligation of motorists at common law, reinforced by their duties under Reg67(2)(b) of the Motor Traffic Regulations 1935 to pause when approaching a marked pedestrian crossing upon which a pedestrian is walking so as to ensure against collision with the pedestrian whilst he or she is walking within the marked crossing. So much was not disputed for the respondent. The appellant's father, Mr Drago Vukovic, gave evidence through an interpreter. He confirmed that he had parked his car about two car lengths (ie about 10 metres) past the pedestrian crossing to wait for his daughter. He saw her "walking normally". He saw her pass the centre of the road. And then he saw the respondent "coming fast, maybe more than 50. According to the fathers evidence she did not stop. She hit the appellant who fell onto the bonnet and struck the windscreen. She stopped some 4 or 5 metres further on. He claimed that his daughter appeared to have been rendered unconscious by the collision. It is obvious from the transcript that he became very agitated in describing the event which, understandably, would be upsetting for any witness to recall, but especially for a parent. In cross-examination, the appellant's father denied that the point of impact had been 3 or 3 1/2 metres past the crossing. He affirmed that his daughter had been hit right on the crossing. She had been struck by the middle of the respondent's car, not on the right-hand driver's side. He denied that his daughter had got up immediately after the accident and walked to the side of the road. The respondent then gave evidence which was quite different. She said that she was driving towards the pedestrian crossing. She saw "a girl" (presumably someone other than the appellant). She stopped on the crossing. Then there was no-one: "Since I start car to go, a lady - I saw her - she came and hit the car on the side. She nearly fell down and she got up and she went to go, and a man, he told her to stop, and he going back to me. He coming back to me and he try to break the window, you know, to get me and my kids all started screaming and crying and screaming, you know, and some people that came they took him away, so I park the car on the side and I went down and he still want to come back, then he told me he is her father." The respondent asserted that when she saw the appellant just before the collision, she was running. In cross-examination she later explained this: "She must be running because I didn't see her. If she walking slowly and she was to cross the road. Q: You would have seen her? A: But she was running and she was running like this into the side like this, after the crossing." The respondent adhered to this statement which she repeated several times. She was positive that the appellant was running when she hit her car. The appellant was called in reply. She denied that at any time she had run across the road. Ihave passed over the only other evidence which was called at the trial during the appellant's case in-chief. This was the evidence of Inspector Michael Morton, who had been stationed at the Auburn Police Station at the time of the accident. 4 UNREPORTED JUDGMENTS He had attended the scene immediately after the accident and taken statements. The relevant entries in his notebook were tendered and marked as an exhibit in the proceedings. They were received into evidence without objection. They were therefore before Conomos DCJ when he proceeded to his judgment. Judge's decision and criticisms thereof Conomos DCJ recounted the primary facts and went on: "T am satisfied that generally the account given by the defendant is to be preferred to that given by the plaintiff and her father. I think the less said about the plaintiff's father the better. I am quite sure that he exaggerated his evidence, not only in an emotional way but in what he saw. I am also satisfied that this plaintiff did run when she came to the pedestrian crossing and at somewhat of an angle so that she could become a passenger in her father's parked motor vehicle. I was very impressed with the defendant. She is obviously a decent young lady who was confronted with a difficult situation when one bears in mind the plaintiff's father's conduct and his generally unruly and unmanly attitude towards the defendant. It is one thing for him to be upset that this daughter was involved in a collision with a motor vehicle. It is however another thing for him to perform in such a manner to beat upon the defendant's vehicle when she was a lady driver with three small children inside. I am satisfied that he would have to be restrained at the best of times, let alone on the evening in question when he saw his daughter collide with the motor vehicle. This is not however an end to the matter, because the regulations require that drivers not only stop at a pedestrian crossing, but also ensure before they commence to drive off that it is safe and proper to do so... On the other hand I accept that the defendant did look and that she was confronted by the plaintiff who was running. In those circumstances the plaintiff must also bear fault for the happening of this accident. She should have ensured that it was safe for her to walk and, at the same time, she should not have run onto the crossing." The appellant submitted that Conomos DCJ allowed his reaction to the "unmanly" attitude of her father to cloud an objective assessment of the facts. Counsel for the appellant, who worked most assiduously in the appellant's interest in this appeal, conceded that the appellant's father had over-reacted after witnessing his daughter's accident. However, this did not justify his Honour's own over-reaction to such behaviour. With respect to his Honour, I confess to an anxiety that his expressed response to the appellant's father's conduct may have diverted him from attention to the real issues before him. This was not a trial of the father on a charge of lack of gallantry. It was a claim by a pedestrian for damages for negligence on the part of a driver whose vehicle certainly came into collision with her at or near a pedestrian crossing. It is unfortunate that so much of the brief reasons given by his Honour were addressed to a homily upon the father's conduct rather than an evaluation of the daughter's. In our changing society, judges must strive to understand the emotions of people who come from cultures where conduct sometimes departs from the restrained ideal of decorum typical of the English culture and expected of lawyers in the courts established after the English tradition. In saying this, I do not mean myself to fall into an error of stereotyping cultures. Some people in other cultures are restrained; some in ours are excitable. Of course,the father should not have frightened a lady driver or her children. But such conduct was largely irrelevant to the conflict of evidence which the primary judge had to resolve in this case. Its only relevance was that it tended to support a conclusion that the father was so upset that his perceptions would have been URJ VUKOVIC v RIZK (Kirby P) 5 clouded as indeed they seemed to be. It would have been quite wrong to disbelieve the father simply because he became upset at the accident scene and even because he frightened a lady driver and her children. This would be to punish him for the display of his emotions which were in no way incompatible with truthfulness. Nevertheless, the problem posed for the appellant in this appeal is the clear statement by Conomos DCJ that he preferred the evidence of the respondent to that of the appellant and her father. Even if one discounts the rejection of the father's evidence upon the basis that it might have been contaminated by his Honour's own over-reaction to the father's behaviour, that leaves the affirmative acceptance of the respondent herself and the preference of the respondent s testimony for that of the appellant. The appellant said that she did not run onto the crossing and was struck within it. The respondent said that she did run and did so diagonally towards her father's car striking the side of the respondent's vehicle as it proceeded beyond the pedestrian crossing. Upon the premises accepted by the resolution of this conflict, the apportionment which Conomos DCJ arrived at should not be disturbed. It was open to his Honour once he came to the conclusion that the respondent's version of the accident was the truthful, or at least the preferable, one. Resting as this conclusion does upon the impression which his Honour derived from his observation of the witnesses called before him, this Court would not be entitled to disturb the conclusion except in the limited cases previously stated. The police notebook is belatedly produced When the appeal first came on for hearing, the appeal book bore the evidence of the delays which had afflicted the case from the outset. Why it should have taken seven years for such a case to come on for trial was a complete mystery. Even more mysterious was the absence from the appeal book of the police notebook which the records showed had been tendered at the trial. The Court therefore called for an affidavit to explain the delays which persisted in the appeal. It is truly lamentable that more than ten years passed between the accident and the final hearing of the appeal. It is too tedious to record the explanations given in the solicitor's affidavit. It is enough to say that the delays were not, for the most part, occasioned by the courts. Nevertheless, the solicitor did discover the whereabouts of the police notebook which went missing for a time. This provides the best contemporaneous record of what actually happened. It was recorded within twenty minutes of the impact. By that time, neither party had had much opportunity to invent facts; bystanders were available who later became unavailable and were not called at the trial; and memories of what had happened were still fresh. The first entry in the notebook is that of a Mr Raymond Azar taken at 7.05 pm His statement reads: "About 6.45 pm on 16/6/82 I was standing in South Road, Auburn near the entrance to the snooker room. I saw a car come down South Parade travelling west. It wasn't going fast, probably only about 2.3 mph. I saw the girl hit the side of the car. I didn't see the girl before the accident, I just saw her as she hit the car. The girl fell over on the road just further along from the crossing. The girl got up and walked over to the footpath. I saw she had an injury to the back of her? A man took hold of her and told her to sit down. I heard him say 'I'm going to sue the bastards'. Then the man went to the car and began to hit it and pulled at the window. The kids inside were frightened. I said 'Calm down, it's an accident' 6 UNREPORTED JUDGMENTS and he hit me too. The girl definitely hit the side of the car, not the front." R Azar. Indicated POI [point of impact] by witness 3.5 metres into the crossing from the south curb. A second statement was given by a witness named Antonio Ramaker, legal clerk. It read: "About 6.45 pm Wednesday 16/6/82 I was standing on the footpath at the bus stop in South Parade, Auburn. I saw a car pull into the curb just near me, probably about 15 yards away between me and the pedestrian crossing. He sounded his horn several times, I looked up and seen young girl collide with another car that was travelling west in South Parade. The girl wasn't in the crossing when she was hit. She was about 3 metres beyond the crossing and about the same distance out from the curb. I couldn't say if the girl was running or not and I didn't know what direction she came from. The car wasn't going fast, probably about 10 mph. The man in the first car carried on and attracted my attention. He began to shout, hit the bonnet of the car with his fists. He went to the window and abused the driver and began to thump the window. He went to its passenger's window and began to hit at it and pull it and shake it. The girl got up straight away and walked to the side of the road. She was holding her head but I couldn't see any other injury. No apparent damage other than three small indentations on bonnet (middle and to the right)." There is then recorded a statement by the respondent as follows: "I came down here (west-south pd) and stopped at the crossing. I look both ways and began to drive off. Just then the girl came from my right. She was hopping and skipping. She just seemed to sit on the bonnet of my car. She fell off and I stopped straight away. I got out of the car and spoke to the girl. She said something and walked away. I got back in my car and the man came. He was shouting and screaming and shaking the car. He broke (?) my window. I'm certain I was out of the crossing when the girl hit my car." Finally, the police notebook contains the following statement by the appellant: "T was walking in the crossing coming across from the Station. The car came down on my left. I reckon it was going pretty fast. I just couldn't seem to got away. I thought I was going to go under the front wheel. I sort of threw myself in the air. The car hit me on the left side. I fell down. My jaw and head are sore." Contemporaneous evidence supports the judge's conclusions Does this contemporaneous record provide the incontrovertible facts which would permit this Court to conclude that Conomos DCJ had misused the advantage which he had as the trial judge? Does it allow us, who have not seen the appellant and the respondent give evidence, substitute our conclusion of what happened for that reached by the trial judge? Sometimes the Court feels able to do as the appellant invited us here. See eg Chambers v Jobling (1986) 7 NSWLR 1 (CA). If crucial objective facts are incontrovertible and are clearly established, the Court will shoulder the obligation to substitute its opinion, based on those facts, for that of the trial judge, whatever the statement recorded of the impression of witnesses. But in the present case, the contemporaneous record does not reach the level of assurance that the appellant requires in order to upset the trial judge's conclusions. Certainly, the statement which the appellant made at the time is consistent with her evidence before the District Court. Likewise, the statement by the respondent is basically consistent with her testimony. True, she does not expressly state that the appellant ran into the side of the vehicle. But she does state that the appellant was "hopping and skipping' and that she was out of the pedestrian crossing when "the girl hit my car'. The markings on her vehicle URJ VUKOVIC v RIZK (Clarke JA) 7 are consistent with her version. They are inconsistent with the version of the point of impact given by the appellant's father. Most telling are the statements of the independent observers recorded in the notebook but not called to give oral testimony. The admission of the notebook, without qualification, made this evidence available to the trial judge. Mr Azar contradicts the claim of the appellant and her father that the respondent's vehicle was going fast. He puts it at only 2 to 3 miles per hour. Although his statement of the point of impact is ambiguous, it appears more consistent with the respondent's version that it occurred "further along from the crossing". Ms Ramaker is even more affirmative: expressly stating that "the girl wasn't in the crossing when she was hit". The probabilities also tend to favour the respondent's version and that given by Ms Ramaker, the independent witness. It was common ground that the appellant's father was picking her up after work. He was sounding the horn of his car repeatedly. He was parked beyond the pedestrian crossing. It would have been natural (even if unwise) for the appellant to run in the direction of his vehicle. This would take her outside the marked pedestrian crossing. The obligation of the regulation in respect of a marked foot crossing is for the driver of the motor vehicle to lessen speed or stop the vehicle to allow a pedestrian to pass in front of the vehicle. The regulation assumes that the pedestrian is "walking upon", not running over the crossing. Furthermore, it is designed to protect pedestrians who are and remain within the pedestrian crossing. That is why the crossing is marked. It is a pedestrian's sanctuary. The sanctuary may not be rigid. It may extend a little beyond the actual markings on the road. But the regulation does not exist to protect pedestrians who depart from the crossing darting across a busy highway running into the side of vehicles which have left the crossing and are proceeding on a road where drivers can expect that pedestrians will take some care for their own safety. Conclusions and orders The result is that the factual premises upon which Conomos DCJ performed his apportionment have not been disturbed in this Court. Resting as they do on his Honour's stated impressions of the witnesses, they enjoy a high degree of immunity from disturbance in this Court. Upon the premises found, the apportionment is unassailable when the principles restraining appellate disturbance of such apportionments are called to mind. So far as the appellant's attack on the premises is concerned, whilst I agree with the criticisms voiced of the deflection of his Honour's attention to the unmanly" behaviour of the appellant's father in respect of the "lady driver' who is the respondent, that red herring still left the primary judge's preference for the version given by the respondent over that given by the appellant. Far from that version being shown to be palpably unlikely or otherwise unacceptable by the contemporaneous written record of the parties and independent witnesses, the better reading of the police notebook tends to confirm the accuracy of the respondent's version of events. Therefore, the attack on the trial judge's conclusions cannot be sustained. Those conclusions remain to support the apportionment which he entered. The appeal must accordingly be dismissed with costs. Clarke JA I agree that the appeal should be dismissed, generally, for the reasons give by the learned President. 8 UNREPORTED JUDGMENTS Cripps JA I have had the advantage of reading the reasons of the learned President. I am in general agreement with his reasons. Like his Honour, I initially had some anxiety that the learned trial judge allowed evidence of the conduct of the appellant's father toward the driver of the motor vehicle he had seen hit his daughter to divert him from his function. Like his Honour, I am of the opinion that the conduct of the appellant's father after the accident was substantially irrelevant to the resolution of the dispute although, for myself, I would not subscribe to the view that an emotional reaction at seeing one's child struck by a motor car is peculiar to people who come from areas bordering on the Mediterranean. However, I am in agreement with the conclusion of the learned President that quite apart from the trial judge's attitude to the conduct of the appellant's father, it is clear that he preferred the version of the accident given by the respondent to that given by the appellant. For these reasons, the appeal must be dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: S Finnane Counsel for the Respondent: H J Mater (on 22 April 1992) Counsel for the Respondent: C Barry (on 8 July 1992) Solicitors for the Appellant: Russell C Byrnes Solicitors for the Respondent: Solicitor for Government Insurance Office of New South Wales