KOVACS v PORQUET SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and PRIESTLEY JJA 13 May 1992, 13 May 1992 [1992] NSWCA 126 NEGLIGENCE — motor vehicle collision — plaintiff on motor cycle comes into collision with defendant's utility — plaintiff alleges defendant's vehicle swerved or turned back into path of plaintiff's cycle — trial judge (Finlay J) finds plaintiff is a reliable witness on facts — extraneous reasons support judge's conclusion — admissions made by defendant after accident — trial judge accepts admissions made — held: (dismissing defendant's appeal) (per Mahoney JA; Kirby P and Priestley JA concurring): It was open to the trial judge on the basis of his findings of fact and the impression of the plaintiff recorded in his reasons to conclude as he did — upon that basis the defendant's conduct amounted to negligence. CONTRIBUTORY NEGLIGENCE — motor cycle clipped by utility which proceeded off the bitumen of the road party onto gravel and then returned and moved into path of cycle — trial judge (Finlay J) finds that plaintiff contributed to his own injuries — finds contributory negligence of plaintiff of 25% — basis of finding is the acceleration of plaintiff to overtake utility — held (dismissing appeal and cross appeal) (per Mahoney JA; Kirby P and Priestley JA concurring): No error shown — appeal dismissed. Podrebersk v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 applied. Kirby P I shall ask Mahoney JA to give the first judgment. Mahoney JA On 30 March 1986 the plaintiff was injured in a motor vehicle accident on the Pacific Highway near Bonville south of Coffs Harbour. He sued the defendant for damages basing his claim on negligence. On 6 March 1992 his Honour Finlay J assessed the plaintiff's damages at $603,503. His Honour held the plaintiff to be guilty of contributory negligence or responsible for the accident to the extent of 25 per cent and therefore gave judgment for the plaintiff in the sum of $452,627.25. The defendant appealed to this Court against his Honour's judgment. The defendant has put in issue essentially the matters of liability and quantum of the plaintiff's contributory negligence. The facts are within a comparatively short compass. The learned judge outlined them overall and I shall recite them by reference to his Honour's judgment. His Honour said: "The accident took place at about 5 pm on a fine afternoon. It is likely that the defendant and the plaintiff were in a stream of traffic travelling in a southerly direction. Some unstated distance prior to the accident there is another service station, referred to as Max Worthy's, on the right for vehicles travelling south on the Pacific Highway. Whilst photographs can be deceptive, it would appear that this service station was at least fifty metres prior to the entrance of the service station on the left into which the defendant intended to turn. There is no evidence of measurements of the carriageway of the Pacific Highway at the relevant area. It is common ground, however, that it is a single carriageway for traffic travelling in each direction. Again the photographs would 2 UNREPORTED JUDGMENTS suggest that if a vehicle was travelling south with its nearside wheels just over the white edge line, onto what was then gravel, that there would be sufficient distance between its offside and the double centre line for a motor bike to pass it, although there would not be much room to spare. The plaintiff presented as a pleasant, open young man. He did not exaggerate his disabilities in any way. In my assessment he was an honest and reliable witness of fact. He said that he was travelling behind the defendant's utility for a substantial distance, perhaps some kilometres. He estimated that he was about ten metres behind the utility and that he was travelling about a metre from the centre line of the highway. He saw the utility veer to the left, so that its nearside wheels were on the gravel, the balance of the vehicle being still on the bitumen carriageway. He said he had been travelling at the same speed, which he thought was only forty to fifty kilometres. He said as the utility slowed down that he also slowed, although he was getting closer. He said when the utility had moved to the left that it was then no longer in front of him, it was to his left, so he proceeded "in my direction". He said there was room for him to pass: "Q. Did you actually catch up with the rear of the utility when the front of your cycle was level with the rear of the utility? A. Yes. Q. At that point how far was the front wheel of your motor cycle from the offside of the utility truck? A. Approximately about a metre. Q. By the time you had drawn level with the rear of the utility, about what distance had the utility travelled with its nearside wheels in the gravel? A. About ten, twelve metres, about. Q. As you drew level with the back of the utility did something happen? A. Yes, as I drew level the car swerved onto the right, swerved to the right hand side clipping my side of the motor bike. Q. Can you tell me what part of the utility collided with what part of your cycle? A. Yes, the right hand side of the vehicle and the side of the front feran of my motor cycle.' As a result of the impact his cycle travelled onto the incorrect side of the road colliding with an oncoming vehicle." His Honour there set forth in the main the version of the facts given by the plaintiff. The defendant gave his version and in doing so denied that he had, as I shall describe it, turned back to the right on to the road. The judge summarised the evidence and stated his conclusions as follows: "T find on the probabilities that the utillty pulled a Ilttle to its left with its nearside wheels just off the carriageway and onto the bitumen and proceeded for some distance in that position immediately prior to the entry to the service station on its left. I think it is likely on the material, which I accept, that the plaintiff, who was not then behind the utility but travelling between the side of the utility and the centre line, accelerated to pass the utility and when its front was just past the rear of the utility, that the utility moved to the right sufficient to clip the motor bike occasioning the accident. At this stage the defendant, on his statement to the police, had looked into the rear vision mirror but could not see the plaintiff. I think that the defendant, at a time when he could not see the plaintiff, who he knew had been following him, moved to his right immediately prior to the turning in and that by so doing he failed to take reasonable care to avoid a foreseeable risk of injury to another user on the highway and was guilty of URJ KOVACS v PORQUET (Mahoney JA) 3 negligence. I find the plaintiff has established negligence on the part of the defendant." On this basis, the judge gave judgment for the plaintiff on the issue of liability. In order to consider the submissions made in respect of the issue of liability, it is relevant to consider two things, first what happened at the scene of the accident and secondly whether what happened constituted negligence. The issue of liability: Although involving the consideration of the whole of the facts, this issue turned essentially on the point whether the defendant had, as I have described it and without characterising it further, turned back to his right and in what way he did so. The plaintiff said that he did turn to his right. The defendant, as I have indicated, at least before the court, substantially denied this. The learned judge essentially accepted what the plaintiff had said. His Honour in the course of his judgment considered the credence which he could give to the plaintiff's evidence. He said: "The plaintiff presented as a pleasant, open young man. He did not exaggerate his disabilities in any way. In my assessment he was an honest and reliable witness of fact." The judge was, I think, influenced to accept the version of the accident given by the plaintiff for, inter alia, two reasons: first because of his acceptance of the plaintiff as an honest and reliable witness of fact; and secondly because he relied upon what was an important admission made by the defendant following the accident. His Honour referred to the conversation which had taken place at the hospital, that is, when the defendant visited the plaintiff at Coffs Harbour Hospital. The plaintiff asked the defendant about the accident. His Honour set forth in his judgment the questions and answers. The vital one is, I think, the last one. Having been asked by the plaintiff why he had done what he had done, namely, as the plaintiff described it, swerved to the right, "clipping my motor bike and causing the accident", the defendant said: "T don't know mate, I could have, there were some pot holes or something like that, it could have been the pot holes, I could have been going around the pot holes." This was, I think, a significant admission and it was one which the defendant did not in his evidence before the court deny. He did not accept that that was said but, as I understand his evidence, he did not deny that it may well have been said. His Honour was, I think, entitled to accept the plaintiff's evidence in this regard and by his citation of the New South Wales case, I infer that he did. Objection was taken on behalf of the defendant to the way in which, as it was put, his Honour treated the evidence of the witnesses called on behalf of the defendant and, in particular, the defendant's brother in law Mr Berger. It was submitted that his Honour had failed to appreciate the effect of the evidence or that he had not given proper consideration to it and had failed to take it into account properly in assessing the evidence as to what happened at the scene of the accident. I do not think that criticisms of this kind are warranted. I do not think that his Honour did otherwise than properly take into account what Mr Berger had said. His Honour referred in some detail to Mr Berger's evidence. It is, in my opinion, apparent that his Honour decided the matter in favour of the plaintiff's version and against the version which Mr Berger gave, by reason of the answer which Mr Berger gave in cross examination to a question asked by Mr Leslie. His Honour set forth in his judgment the question and answer as follows: 4 UNREPORTED JUDGMENTS "Q. From where you were observing the events it would be extremely difficult for you to say whether the motor cycle clipped the utility in passing it or whether the utility had veered back onto the bitumen again? A. I would say it would be very hard to determine whether you see him come back an inch or two or a foot on the one side, yes, I couldn't say no he did not, yes he did, but I didn't see him go back." His Honour was in a position to understand and appreciate what was meant by this answer in a way that perhaps this Court is not able to do. He was able to appreciate what the witness in a somewhat non syntactical answer meant by what he had said. In all the circumstances I see no error by his Honour finding the facts as he indicated in his judgment. I think that he concluded that the defendant had in fact moved the utility back to the right and that he had done so in such a way and to such an extent that the plaintiff, continuing on on the line that he had previously been following, clipped the back of the utility and suffered the difficulties of which he gave evidence. It is, I think, proper to take into account that the plaintiff said in his evidence that he was riding about one metre from the centre line of the road. (Whether there was an actual line or an imaginary line I do not pause to consider). His evidence was to the effect that he continued on this line. It was not, I think, put to him, at least it was not established, that he had deviated from that line or that he was not giving evidence which in this regard was accurate. If that be so then, as I understand his Honour's judgment, the defendant's vehicle came back to such an extent that the back of it came to a position about one metre from the actual or imaginary centre line on the road. It had at one stage been in a position where the near side wheels were on the gravel at the side of the road to some extent. In my opinion, an action of this kind on the part of the defendant constituted a lack of proper care for those behind him. The evidence was that the defendant had known that the plaintiff was behind him. He did not see him immediately before the events in question. But he must, I think, have been aware that the motor cyclist was behind him when he moved to the left and then back to the right in the way that he did. I think that that showed less than sufficient care for a motor cyclist riding reasonably close behind him. He put the cyclist in a position of danger. I think that his Honour was therefore correct in his findings on negligence. I come now to the submission that the plaintiff was guilty of contributory negligence and to an extent greater than the 25 per cent found by the learned judge. The principles on which the judge dealt with the matter are not in doubt. His Honour in his judgment referred to the leading cases: he referred to Pennington v Norris (1956) 96 CLR 10; and Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR at 494. His Honour referred also to the decision of the House of Lords in Stapley v Gypsum Mines Ltd (1953) AC 663. The principles have not been put in issue in this appeal. The learned judge held that the plaintiff was guilty of contributory negligence. As I understand the judge's judgment his reason for so finding was essentially that the plaintiff had accelerated to overtake the defendant's vehicle too early and that he should have allowed the vehicle to move more substantially out of his way before he accelerated. The learned judge's finding in relation to contributory negligence was set forth in the following terms: URJ KOVACS v PORQUET (Priestley JA) 5 "On the issue of contributory negligence the plaintiff knew that only the slightest touch to his motor cycle could cause it to get out of control. He knew, or ought to have known, that the utility was about to turn into the opening to the garage, which it was just coming to. He chose in those circumstances to accelerate to pass between the offside of the utility and the double centre line. Whilst I find there was sufficient room for him to so do, a prudent cyclist in that situation would not, in my view, have accelerated but would have allowed the utility to move further off the carriageway, which it would do in only a matter of seconds. Whilst the utility was indicating it was turning left with a comparatively narrow carriageway, there was a foreseeable risk that the vehicle may move a little to its right, as part of its final turn into an entrance on its left to avoid some roughness on the gravel section of the road upon which its left hand wheels were travelling. I am of the view that the defendant has established that the plaintiff failed to take reasonable care for his own safety in all the circumstances. However, his culpability in this regard is, in my assessment, not as great as the culpability of the defendant." It was submitted by Mr Finnane QC for the defendant that his Honour also found that the plaintiff was riding too close to the defendant's vehicle at the time and it was this also that bore some responsibility for the accident. No doubt his Honour in terms referred to the closeness of the plaintiff to the defendant's vehicle. He did not, I think, refer to it in terms in the passages to which I have referred or any portion of the judgment relating to contributory negligence. However, I am content to accept that that may have been one of the things that perhaps peripherally his Honour had in mind. But in my opinion if the plaintiff did accelerate to overtake before he did, then that constituted a lack of proper care for his own safety which of course contributed to the accident. The argument was that the facts disclosed that the plaintiff bore responsibility for the accident in the relevant sense more than 25 per cent. It is necessary I think to have clearly in mind precisely what it was that constituted contributory negligence and it is for this reason that I have referred to the matters I have. I think essentially the matter relied on was the acceleration. It was that which in terms of his Honour's judgment was the matter by reference to which his Honour stigmatized the plaintiff's conduct. Taking that matter alone, I do not think that it was a matter of such seriousness as to warrant a finding of more than 25 per cent responsibility. It was no doubt contributory negligence that arose from misjudgment and not serious misjudgment rather than from deliberate misconduct or otherwise from matters warranting a finding greater than 25 per cent responsibility. Taking into account, in the manner to which I have referred, the possibility his Honour also had in mind that the plaintiff may have been riding too close, I am still not convinced that his Honour's assessment of the responsibility of the plaintiff goes beyond 25 per cent. Matters of this type require the formation of a discretionary judgment. The learned judge was not wrong in principle, nor do I think there was any basic error in the matters taken into account in forming this judgment. I do not think there is any reason why this Court should interfere. For those reasons I would propose that the appeal and cross appeal be dismissed with costs. Kirby P I agree. Priestley JA I also agree. 6 UNREPORTED JUDGMENTS Kirby P: The Court earlier reserved its orders on the issue of costs. It will order that the costs which were reserved arising from the application which was made by motion to the Court for an order for relief from the order of a stay which became, in terms, the basis of an order for expedition, will be paid by the appellant/defendant. The orders of the Court therefore are that the appeal is dismissed with costs. The cross appeal is dismissed with costs. The costs of the motion which were earlier reserved are to be borne by the appellant. Counsel: Appellant/Cross Respondent: MJ Finnane QC with J Graves Respondent/Cross Appellant: AJ Leslie QC with H Mundy Solicitors: Appellant/Cross Respondent: Adelsteins Respondent/Cross Appellant: E Fredericks and Co