HASNA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MAHONEY JA, SHELLER JA and Cripps JA 10 November 1992 [1992] NSWCA 108 APPEAL from Common Law Division — Issues of fact — Issues not disposed of at trial — New trial on all issues — No question of principle. Mahoney JA. On 19 August 1985 the plaintiff was injured when struck by a motor vehicle driven by the insured person represented by the Government Insurance Office. In December 1985 the plaintiff commenced proceedings against the relevant defendant for damages. On 28 August 1990 Master Greenwood, having heard the case presented by the parties, gave judgment for the defendant. The plaintiff has appealed to this Court against the Master's judgment. The plaintiff's case at the trial, that is, the way it was put in his evidence, was rejected by the learned Master. The plaintiff's case as it is now presented by Mr Leslie QC is a frankly different case and is based essentially upon the evidence which was presented for the defendant at the trial. The plaintiff's case in this regard is that the learned Master failed to decide an essential point necessary for the decision of the matter, that the trial, therefore, miscarried and that there must be a new trial. In order to understand the submissions that have been made and the conclusions at which I have arrived, it is necessary to refer to the evidence as it was presented at the trial. The Master in his judgment said: The plaintiff was crossing Marrickville Road when he was struck. Marrickville Road in that vicinity is four lanes wide. It was 5 pm. The plaintiff said that he stood on the kerb and looked to the right on the northern side, there was not traffic coming, he got to the middle of the road, he looked to the left and could see no traffic and continued across and was struck by the defendant on the southern side of Marrickville Road in the kerbside lane. He said that he did not see the defendant. Constable Leighton was called to the scene of the accident. He found that the traffic conditions were heavy. He interviewed both the driver, a witness and later the plaintiff in hospital. The versions of the plaintiff and the defendant together with the witnesses" statements eventually finished in evidence before me. These read: The Plaintiff: "T parked the car. I run across road between stopped cars before one lane before shop and car hit." The Defendant: "At about 5.15 pm on 19/3/85 I was driving west in lane 1 of Marrickville Road. The cars in lane 2 were moving slowly. I was doing about 15 kph and a man ran out from in front of a public transport bus and collided with the front of my car. I didn't see him until he hit me." Mr Roy Maude "At about 5.15 pm on 19/3/85 I was driving west in Marrickville Road in lane 2 in a line of traffic. The traffic stopped and a man about 35 walked from the north gutter in front of my car and he walked straight in front of a white ute in lane 1." 2 UNREPORTED JUDGMENTS The defendant in evidence said that he was travelling west along Marrickville Road in the kerbside lane. He was moving very slowly. He thought maybe between 20 and 30 kph when this man ran across the road and appeared suddenly 3 or 4 metres away. He was unable to stop and struck him."'That constituted the main part of the factual material upon which essentially the Master relied. The Master subsequently in his judgment said: In my view, because of the findings in this matter it is not necessary for me to find whether the plaintiff stepped out from in front of the bus or a car. The Master therefore stated his conclusions as follows: lam of the view that when one assesses the duty of care owed by a defendant driving a motor vehicle, namely to keep a proper lookout when travelling in areas where pedestrians may frequently dart across the road, I am satisfied that the defendant was travelling at a reasonable speed and was given no opportunity of sighting the plaintiff. It was not as if the plaintiff had appeared suddenly by stepping off the footpath. One would expect a driver with sufficient line of sight to watch out for a pedestrian adopting this manoeuvre. This was a case of the plaintiff appearing from in front of a stationary vehicle on the right-hand side in circumstances in which it cannot be held that the defendant would have had any view of the plaintiff or any inkling of his presence prior to his appearing in front of the vehicle. The Master's conclusion was, if I may paraphrase it somewhat inaccurately, that it did not appear to him necessary to determine whether the plaintiff had run out from in front of a bus as the defendant's driver had suggested or in front of a motor vehicle as had been suggested by Mr Maude in his statement to the police. His conclusion involved, as Mr Leslie QC indicated, that on either view the defendant was not negligent in striking the plaintiff as he did. The difficulty that is posed in the case before this Court arises in one sense from what the defendant's driver himself said in his evidence at the trial. It is necessary I think to set out a substantial portion of the cross-examinationof the defendant's driver. The evidence in question is as follows: Q. To say the speed was fifteen kilometres? A. It didn't suit me. I believe what Ihave done and I believe fifteen kilometres is not the right speed that I was doing. Q. But that is what you signed to? A. Yes I did on that particular day. I was in great shock and I only — the fifteen k's, that is too slow for what I was doing. Ihave a very fresh memory. I do remember what I did. Q. So you say that the reason you have changed that evidence? A. Yes. Q. is if it was only fifteen kilometres you could have pulled up? A. Probably I could have but not in the speed that we collided. Q. And you refer to a government bus? A. Yes. Q. In your statement. What has that got to do with it? A. That was right beside me. Q. Has it got anything to do with the accident? A. Yes. Q. What has it got to do with it? A. That is why I didn't see the man. Q. Because of the bus? A. Yes, exactly. Q. What was it about the bus that stopped you seeing the man? A. Could I show you? This is bus, this is car. Q. Just tell me. What is it about the bus that stopped you seeing the pedestrian? A. He was in front of the bus. He crossed this way. He appeared out of the bus and I hit him. Q. And that is why the accident happened? A. Exactly. WRASNA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Mahoney JAB Q. You don't happen to remember the road number of the bus do you? A. No. Q. In those days, what colour were the buses? A. Blue. Q. You have travelled on buses? A. Absolutely. Q. You don't happen to remember whether it was a Mercedes or a Leyland? A. Must have been a Mercedes. Most of them are. I don't know. It was a blue bus, transport bus. Q. What height? A. Normal height. Q. What is that? A. Four metres? What is it, two, three metres, three metres. Q. Was that bus stationary or moving? A. It was stationary. According to my memory now, it was very, very slow. Q. So you say that if the bus had not been there that would have allowed you to see the man? A. Exactly. It all depends. If it wasn't something high, if it is a normal car, you can see through the glass. Q. But it was the bus that stopped you seeing him? A. Exactly. Q. And had he crossed three lanes of traffic before he got to the lane you were travelling in? A. Exactly, yes. Q. So there would have been nothing except the bus to stop you seeing him while he crossed those three lanes would there? A. No, there wouldn't be nothing. Q. And I suggest to you that indeed, he almost reached the safety of the footpath before you hit him? A. Yes. Again stating the matter in general terms, the substance of the case now made for the plaintiff is that the defendant's driver in effect conceded that if the plaintiff had run, not in front of a bus, but in front of a motor vehicle such as that which had been driven by Mr Maude, then the driver would have had an opportunity to see him, an opportunity sufficient to enable him to stop and avoid the accident or, as I would interpolate, to cause significantly less injury to the plaintiff than he did. The submission is that the Master approached the matter on the basis that, as I have indicated, it did not matter whether there had been a car or a bus there and, therefore, his reasoning depended for its cogency upon it being applicable even if it was the car in front of which the plaintiff had run. If that be so then I find difficulty in accepting the reasoning of the Master. I find that difficulty particularly, as I have said, in view of the statements by the defendant driver made in cross-examination. I am conscious that the court is not, of course, bound by evidence such as that given by the defendant driver and must in the end arrive at its own conclusion, giving each portion of the evidence appropriate weight. But I think the concession made by the defendant driver was, in substance, correct. I do not mean that the concession was that he would necessarily have seen and been able to stop. But it raises, at the very least, a possibility or probability that, had the fact been that the plaintiff ran out in front of a car rather than the bus, the defendant driver would have been able, with reasonable care, to stop. It seems to me that the way in which the case was decided meant that it was decided on a basis which did not really deal with the issues that were raised at the trial. If I be wrong in this and the matter was decided by reference to those issues then I am not able to agree with the Master's conclusion that if there had been a car there rather than a bus, the driver was not guilty of negligence in notseeing the plaintiff approaching. I do not think that the issue was as clear and simple as he suggested. 4 UNREPORTED JUDGMENTS I think it was necessary for him for the proper disposal of the issues to come to a conclusion whether what was there was a bus or a car. In order to do this the Master was required to make a choice between the acceptance of what was said by Mr Maude in his statement, namely that that in front of which the plaintiff ran was the motor car driven by Mr Maude, and the bus to which the defendant driver referred in his statement to the police and in his evidence before the court. The parties are agreed that the evidence of Mr Maude as appearing in the police statement was properly before the court as evidence of the facts there stated. I think that that agreement was inevitable; the evidence was tendered by the defendant. In those circumstances a choice should, in my opinion, have been made by the Master between the two versions. The Master might well have come to the conclusion that having had the defendant driver before him in evidence and having been able to assess the reliability of his evidence, he should accept that portion of the driver's evidence, namely, that the vehicle that blocked his view to the right was a bus and not a motor vehicle. If he had done that then, in my respectful opinion, there could have been no criticisms of the conclusion at which he arrived. But, as I have said, he did not do that. He left the matter to be decided upon the basis that his reasoning, or the validity of it, was to be assessedon the basis that that which was there was a motor vehicle. I am not satisfied that on that basis such a conclusion as he arrived at could or should be drawn. This does not mean that the result is that there should be a verdict for the plaintiff. It means, as I have said, that an essential point for decision was not decided by the Master. I come then to consider what follows from this. Mr Leslie for the appellant has submitted that it follows that there must be a new trial upon liability and accordingly upon all issues. The granting of a new trial, particularly in a case such as this, is obviously undesirable. The attitude of the courts to new trials is well known and need not be adumbrated. But, in the circumstances, I feel there is no real alternative to the granting of a new trial. I do not apprehend Mr Barry for the defendant to have argued to the contrary. But however that be, I think that the question of whether what was there was a bus or a car depended upon the credit to be given by the court to the defendant driver and that was a matter for assessment by the trial judge. I am conscious that the Master expressed in emphatic terms his acceptance of the defendant driver as a witness of truth and reliability and I confess to having been tempted to build upon that to conclude that probably that which was there was a bus and not a car. However, giving full consideration to the matter and having regard to the advantages which the Master had, I am not satisfied that the court can or should take that course. But there is difficulty in accepting that what was there was a bus rather than a car when the Master was not disposed to arrive at that conclusion. Reluctantly, in all the circumstances, I am of the opinion that there should be a new trial. As has been said by Mr Leslie, the court might, on that reconsideration of the facts, find a verdict for the plaintiff. The court would then be required to assess damages and it would not be in a position to do that because the assessment of damages would depend upon its assessment of the plaintiff and that assessment cannot, of course, be made by this Court. Before parting with the matter I should note that Mr Leslie in his submissions has relied not merely upon the matters to which I have referred but upon other matters. He has pointed to the fact that there were, as he submitted, discrepancies WRABNA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Mahoney JAB between the statements made by the defendant driver at the scene of the accident and the statements made by him on oath before the Master. He has referred, for example, to the speed at which the defendant driver said he was going and pointed to discrepancies in that regard in the evidence. There, no doubt, would be reasons why, eg, the statement made by Mr Maude at the scene of the accident should be preferred to what was said by the defendant's driver, then and at the trial. I take those matters into account. But in the circumstances, I do not think that it is necessary, for the purpose of dealing with this appeal, to grapple with the detail of them. For the reasons I have noted the judgment should be set aside and there should be a new trial of all issues in the proceedings. The appellant should, in my view, have the costs of the appeal. The costs of the first trial should abide the event of the second trial. Sheller JA. I agree with the orders proposed by Mahoney JA for the reasons he has given. Cripps JA. I would dismiss the appeal but as I am aware that my view is a minority view I shall give my reasons very shortly. The case between the plaintiff and the defendant was a simple case in negligence. It was conducted upon the basis that, at the relevant time and in the circumstances more fully set out by Mahoney JA, the plaintiff was injured due to the negligent driving of the defendant. The plaintiff was crossing Marrickville Road from north to south and had crossed the two eastbound northern lanes. While he was crossing the second of the two westbound southern lanes he was struck by a car driven by the defendant. The issue before the Master was a stark conflict between on the one hand the plaintiff's version which was when he reached the centre of the road there were no vehicles in sight and, on the other for the defendant, that at that time the two westbound lanes were, in effect, full of traffic and that the plaintiff came in the westbound lane and was struck by the defendant who did not have the opportunity to avoid the accident. I will not go into the detail of the accident anymore than that because it has been gone into fully by Mahoney JA. The defendant's case was, it is said, subject to some division because it was said there was a conflict between the evidence given by the defendant himself and the evidence given or presented by Mr Maude in a statement that was tendered in evidence. The difference related to whether or not there was on the road just prior to the accident a bus which may have obscured the driver's view and in front of which the plaintiff may have emerged. In his reasons for judgment the Master said, in effect, that it was not necessary for him to determine whether the plaintiff stepped out from in front of the bus or the car and that finding was vigorously attacked when this appeal commenced. I was attracted to the argument until I understood, with respect, what that statement meant in the context of the conflict between the parties. What has occurred here is an attack on the reasons given by the Master. That is that they were inadequate. I do not think, in all of the circumstances, that they were. I will not enlarge upon it because I am aware I am in a minority. However, I share the view of the majority that upon their findings there should be a new trial for the reasons given. Mahoney JA. The orders of the court are therefore as I have proposed. 6 UNREPORTED JUDGMENTS Appeal allowed; judgment below set aside; new trial of all issues; respondent to pay the costs of the appeal; the costs of the first trial to abide the event of the second trial. 5 Counsel for the appellant: AJ LESLIE QC/AJ BARTLEY Solicitors for the appellant: LEITCH HASSON and DENT Counsel for the respondent: CT BARRY 10 Solicitors for the respondent: SOLICITOR FOR GIO