BRYAN v PRINCE AND ANOR SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MAHONEY and CLARKE JJA, and Hope AJA 17 March 1992, 17 March 1992 [1992] NSWCA 32 MOTOR VEHICLE ACCIDENT — CAR MAKING RIGHT-HAND TURN AT T-INTERSECTION — MOTOR CYCLE OVERTAKING ON RIGHT — WEIGHT TO BE GIVEN "EXPERT" EVIDENCE — APPEAL from Common Law Division — Motor vehicle accident — Car making right-hand turn at T-intersection — Plaintiff on motor cycle overtaking her on her right-hand side and striking car — Defendant not negligent. WITNESSES — Whether errors in findings of fact sufficient to offset Master's advantage in seeing witnesses — Weight to be given to "expert" evidence to show where collision took place and where plaintiff's body lay — Chambers v Jobling (1986) 7 NSWLR 1 referred to. ORDERS Appeal dismissed with costs. Mahoney JA The plaintiff was injured in a motor vehicle accident which occurredon | February 1981. The present proceedings were commenced in March 1986. The plaintiffs claim was heard by Master Greenwood during the period 13 to 16 March 1990. The Master gave judgment for the defendant. On 11 April 1990 he delivered his reasons for that judgment. On the facts that were propounded by the defendant, the defendant was not, in my opinion, guilty of negligence in relation to the accident or the plaintiff's injuries. Subject to one matter, in my opinion, on her version of the facts, the fact that she was not guilty of negligence is clear. The facts as deposed to by her, and as found by the Master upon the basis of the acceptance of her evidence, are set forth in detail in the Master's judgment. The Master said: "...She was travelling north on Frederick Street, and at the traffic lights at the intersection of Elizabeth and Frederick Street she took up a position in Frederick Street in the kerbside lane. The defendant said that she did this as vehicles often make a right hand turn to the east into Elizabeth Street and vehicles waiting behind them to travel north along Frederick Street often miss the opportunity to do so. She said that when she was at the lights in Frederick Street there were in the outside lane on her right two vehicles which, she suspected, were about to turn right. When the lights changed she found that her suspicions were incorrect and that both these vehicles were travelling north along Frederick Street. They were travelling at approximately the same speed as she was. As a result she was unable to move into the middle lane for the purpose of effecting the right hand turn which she wished to make when she arrived at Albert Parade. The defendant says that her progress in the kerbside lane when she was travelling north was also impeded by the presence of a parked car. She therefore slowed down, waited for the vehicles on her outside to pass then having checked that there was nothing coming behind her put on her indicator and moved to the outside lane. She then 2 UNREPORTED JUDGMENTS proceeded to the intersection of Albert Parade, commenced to do her right hand turn into Albert Parade. She said that she was across the south bound lanes of Frederick Street when she was struck by the motor cycle driven by the plaintiff. The defendant placed the position of the collision as being on the eastern side of Frederick Street..." The Master subsequently said: "So, based on the balance of probabilities I am satisfied that the defendant was travelling north along Frederick Street and making a right hand turn into Albert Parade. I am satisfied that the defendant had indicated her intention. I am also satisfied that the plaintiff did not appreciate that the defendant was making a right hand turn and overtook the defendant as a result of which there was a collision..." The Master also made findings in relation to credit. He had taken the course of finding the facts to the effect that have indicated in my quotations from his judgment. He had done that without referring to the issue of credit. He then said, in relation to credit, the following: ".... turn now to the question of credit. Sergeant Smith was the officer in charge of investigations arising out of the collision. He interviewed the plaintiff in hospital and obtained a statement from him in his notebook. The plaintiff claims that this statement was not signed. Sergeant Smith's evidence was that it was. In any event the statement was subsequently transcribed and was available to the court. Regrettably the notebook is destroyed, similarly the statement made by the defendant at the time of the accident was destroyed. However, there are available the charge sheets which contain a summary of what it was judged that the actions of the defendant were. Sergeant Smith was not aware of whether the material on the charge sheet was taken from the statement of Mrs Prince. I was singularly unimpressed by the plaintiff when he was cross-examined on his statement, part of which he agreed to, some of which he denied and some of which he was evasive about. Even leaving this to one side there were other matters which troubled me greatly. His lack of recall about obtaining the motor cycle in a false name and his failure to recollect that he had originally given a false name to the police were matters about which I was convinced that the plaintiff was not telling the truth. He was also questioned about the fact that he did not possess a licence to ride a motor cycle. His evidence was that he had been riding a motor cycle without a licence for some time. He claimed to have ridden some 140,000 to 150,000 kilometres on the road and another 50,000 kilometres off road without obtaining a licence nor, he said, without being apprehended by the police. However, his evidence was that he proposed to obtain a licence the following Monday. Why he would bother to get a licence then, given his past history, was not made clear. I just do not accept his evidence in this regard nor do I accept his evidence that he could see and identify the face of a driver of an on-coming vehicle and the type of cap he was wearing from a distance of 100 metres. The plaintiff's evidence, about his failure to see the defendant at any time prior to a distance of twenty-five feet away from her was another matter which I could not accept. I came to the conclusion that whilst I could not say that the plaintiff misled the court with the whole of his evidence I am satisfied that the plaintiff tailored his evidence to suit what he saw as his best case and was quite content to either attempt to mislead the court or to claim inability to recollect selected events about the accident, notwithstanding that the plaintiff claimed to have recall after a session of drug induced hypnotism just prior to the hearing..." The Master concluded that the defendant's evidence was "straightforward, logical and truthful". He said: URJ BRYAN v PRINCE AND ANOR (Mahoney JA) 3 ""..1 was impressed by the demeanour of the defendant and even allowing for the fact that the plaintiff was probably suffering discomfort when giving evidence his demeanour I regarded as unimpressive on occasions and I approach his evidence with caution. Where the plaintiffs evidence conflicts with the defendant's evidence would accept the defendant's evidence on the basis of her credit. I thus find for the defendant on the basis of probability on the different versions of events as well as on the question of credit..." Upon the basis of the findings of the Master, both on the basis of probability and by virtue of his acceptance of the defendant as a witness of credit, in my opinion, subject to one matter that I shall refer to, there was no evidence of negligence by the defendant which was causally related to the accident. The defendant had been driving at a relatively slow pace; she had come from Elizabeth Street towards Albert Parade; she had, she said, "got out to the centre of the road" and was then driving at something of the order of thirty kilometres an hour. She put out the turning indicator in the car. She had at an earlier stage previously looked back through the rear vision mirror and had found that there was no vehicle in the vicinity. It was only when she was, as she said, halfway across the eastern side of Frederick Street, when she was too far across to stop, that the accident occurred. She said that she had, just before the accident, seen the plaintiff's motor cycle on the right-hand side of Frederick Street coming down the centre. The defendant's case was that the collision occurred on the eastern side of the centre line of Frederick Street, that is, while she was well in the course of making a right-hand turn of which she gave evidence. In these circumstances, in my opinion, the cause of the accident lay with the plaintiff and not with the defendant. I have referred to one matter as a possible qualification to this. That is the failure of the defendant to look in her rear vision mirror or mirrors shortly or immediately before she commenced to turn. The Master dealt with the matter in the course of his judgment. He said: "\..There is one further matter which I will deal with briefly. The defendant admitted that she did not check in her rear vision mirror prior to making the right-hand turn. She had previously checked in the mirror prior to pulling out from behind the stationary car. She also had her right turn indicator operating. The defendant had to ensure that she did not turn across oncoming traffic and that no traffic was coming out of Albert Parade. Given the absence of traffic in Frederick Street when she had previously checked and the length of time that the defendant had indicated her intention I do not regard the defendant as breaching any duty of care by not checking the rear vision mirror as she made her turn. Indeed there is no evidence to suggest that had she done so the defendant would necessarily have seen the plaintiff. I am satisfied that the defendant approached the intersection at which she wished to make a right hand turn, that her right hand indicator was operating, that she proceeded to make the turn when the plaintiff attempted to overtake her and the plaintiff collided with the defendant..." I agree with the substance of the conclusions there stated by the Master. The defendant had, as she had said, come to the centre of the road and was about to make a turn, having signalled her intention to do so. She had previously, and not much before that time, looked to see whether any other vehicle was coming. She was required, being in the course of making a right-hand turn, or on the point of it, to look ahead and down the other street in order to ensure that it was safe to make the turn that she intended to make. I do not think that in the circumstances it was necessary for her to look again into the rear vision mirror or the other mirror in her car to check again whether there was some vehicle coming down 4 UNREPORTED JUDGMENTS behind her. A reasonable person in her position might perhaps infer that if there were any vehicle coming behind her vehicle, seeing that there was a vehicle in the centre of the road giving an indication of intention to make a right-hand turn, that vehicle would have proceeded to the left or western side of her vehicle. She would not have expected that a vehicle coming from behind her in that short time would have gone around her to the right of her. The conclusion which the Master formed in relation to the matter was, I think, in substance correct. I do not think that to look in the rear vision mirror or the other mirror at that time was something which in all the circumstances a reasonable person would do. In any event, I do not think that any such failure was causally connected with the accident. The accident occurred because, in the circumstances I have outlined, the plaintiff rode his motor cycle around on the wrong side of the road in an attempt to overtake the defendant's vehicle when he should not have done so. I have to this point dealt with the matter upon the basis that the defendant's evidence is to be accepted and accepted for the reasons to which the Master referred. However, it was submitted by Mr Maconachie QC that the court should not accept the defendant's evidence and that, as on a re-hearing, this Court should come to a different conclusion. He was faced immediately with the problem that, although it was the second stage in his reasoning, the Master accepted the defendant and based his acceptance upon what he saw of her in the witness box, that is, upon what is conventionally, although perhaps inadequately, described as her demeanour. Mr Maconachie QC was faced with the problems which have been referred to by the High Court of Australia in Australian Postal Commission v Abalos (1988) 171 CLR 167 and in other cases. Accordingly, Mr Maconachie QC sought to show that notwithstanding such an acceptance of the defendant's evidence, this Court should itself reconsider the matter. He submitted that this Court should do so because the learned Master had failed to take advantage properly of his position of advantage as trial judge or had otherwise been guilty of such errors as would, within the appropriate principles, warrant this Court in going behind his findings. Mr Maconachie QC referred to a number of matters in support of this submission; it is not necessary to canvass all of them. He suggested, for example, that the Master had fallen into error when he dealt with the evidence of Mr Sindell. He had, it was suggested, mistaken the evidence of Mr Kuka for that of Mr Sindell, and for that reason he had not taken proper advantage of his position as trial judge. It was suggested that he had not properly understood the evidence of the person called to give expert evidence, Mr Tindall. I do not think that, if there be error in these matters, the errors are such as to warrant this Court in coming to a different conclusion from that which the Master arrived at in relation to the acceptance of the defendant. I would accept her evidence upon the basis merely of the objective analysis of it and upon the basis of the probabilities. In addition, I do not think that the errors, if they were errors, are such as to warrant putting aside the effect of the advantages which the Master had, as trial judge, for the reasons canvassed in Abalos (supra) and other cases. However, putting that matter aside, I am not satisfied that there was a substantial error in the way in which the Master dealt with, for example, the evidence of the ambulance officers and the evidence of other witnesses at the trial. The accident had taken place some nine years approximately before the trial took place. Most of the witnesses, if not all of them, acknowledged, as properly URJ BRYAN v PRINCE AND ANOR (Hope AJA) 5 one would expect them to do, the difficulties of recollection at least in relation to some matters. One of the matters upon which Mr Maconachie QC placed significant weight, namely, the position of the plaintiff's body after the accident, was a matter as to which different accounts were given. Some accounts suggested that the body had been more or less in the centre of Frederick Street. The defendant had said the body was much closer to the line on the road at the T-intersection. Some of the other witnesses had suggested that the body lay in positions between those points and questions were put to the witnesses to test the exactness of their recollection. Some at least of them confessed, as one might expect them to do, to uncertainty as to the position. The Master was faced with a position of uncertainty on the evidence in relation to this matter and it was, I think, quite proper for him to accept the version which the defendant gave of where the body was, or substantially that version of the matter, broadly for the reasons that she had given. She had said that she had had the opportunity to see where the body was and she described why in her evidence. I see no error in what was there done, or, as I have said, even if there was error, that would not justify putting aside the Master's conclusion in this regard. I would come to the same conclusion on the facts myself. Reference was made to Mr Tindall's evidence as an expert. At least one of the suggestions made was that if his evidence was accepted then the plaintiff's body could not have ended up where the defendant said it was. Reference was given to angles of the vehicles on impact, the damage to the right-hand side of the defendant's vehicle and other matters and from these it was attempted to calculate where the body would have been or must have been. For myself I confess to an initial reservation in relation to evidence of this kind. In Chambers v Jobling (1986) 7 NSWLR 1, I indicated my views in relation to the assessment of evidence of this kind, as to the matters on which it depends and the inferences which are to be drawn in order to test it. For myself I am sceptical as to conclusions to be drawn in this regard. But putting that aside and taking Mr Tindall's evidence as it stands, I do not think that it is of such effect as would justify putting aside what the defendant said in relation to the matter. I would come to the conclusion that the defendant's evidence should be accepted. On that basis, I do not see that there is proper reason for upholding the appeal. In my opinion the appeal should be dismissed with costs. Clarke JA I agree. Hope AJA I agree. MAHONEY JA: The order of the court is the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: JE Maconachie QC/BG McManamey Solicitors for the appellant: Ebsworth and Ebsworth Counsel for the respondent: HG Shore Solicitors for the respondent: Creagh and Creagh