HARRISON v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MEAGHER and CRIPPS JJA 13 August 1992, 13 August 1992 [1992] NSWCA 106 MOTOR VEHICLES — negligence passenger's claim — finding that vehicle rolled into intersection — driver did not see illuminated headlights of approaching vehicle — held: negligence and causation established — plaintiff entitled to verdict. APPEAL — rehearing — not necessary to show "plainly wrong" where credibility of witnesses not involved. NEGLIGENCE — causation — motor vehicle collision. MOTOR VEHICLES — negligence — collision at T intersection plaintiff passenger in one vehicle — trial judge (Sully J) finds that such vehicle rolled forward past stop sign into intersection — finds that driver knew of sign and intended but failed to obey it — finds that driver did not see headlights of vehicle approaching on his right although they were illuminated — concludes that plaintiff failed to prove that negligence of his driver caused the collision enters judgment for defendant driver — on appeal — held: (Cripps JA; Kirby P and Meagher JA concurring): Upon the facts found, the plaintiff passenger had proved a relevant connection between the negligence found and the collision causing his injuries and was entitled to judgment. APPEAL — rehearing — review of facts — whether necessary for appellant, to disturb conclusion of trial judge in a case not involving assessment of credibility of witnesses, to establish that trial judge was "clearly" or "plainly" wrong — held: (1) (by the Court): In the facts of the case it was unnecessary to decide the point as the judge was plainly and clearly wrong; (2) (per Kirby P, Meagher JA concurring): Semble It is not necessary for the appellant to show clear or plain error. Warren v Coombes and Anor (1979) 142 CLR 531, 551 referred to. NEGLIGENCE — causation — necessity to prove — sufficiency of evidence. Kirby P I shall ask Cripps JA to give the first judgment. Cripps JA This is an appeal from a decision of Sully J on 31 August 1990 in which he dismissed a claim in negligence brought by the plaintiff appellant. On 11 September 1985 the appellant was injured when a car driven by Mr Stagni in which he was a passenger came into collision with a car driven by Mr House. The learned trial judge has set out clearly and concisely so much of the circumstances of the accident as were available to him. He records in his judgment the details of the collision which I will come to shortly. The plaintiff's claim against the defendant was that the defendant (and I will use that term to embrace the conduct of Mr Stagni) failed to keep a proper look out and also failed to give way. The issues before the learned trial judge were a denial of negligence, a plea that the plaintiff was not entitled to any damages because the car was driven by a person whose inability to control and manage the car was affected by the consumption of alcohol, as the plaintiff well knew, and the plaintiff agreed to submit himself voluntarily to the risks in respect of that man's drinking. It is also alleged the plaintiff was guilty of contributory negligence. The particulars 2 UNREPORTED JUDGMENTS referred to the consumption of alcohol and also the circumstances alleged, that at the time of the accident the plaintiff was not wearing a seat belt as he was required by law to do. The accident occurred at Coniston on the South Coast at the intersection of Pine Crescent and Heaslip Street - two streets forming a T intersection. Pine Street runs north and south and Heaslip Street runs generally east and west. It was common ground that prior to the accident, the defendant was travelling north in Pine Crescent and the vehicle driven by Mr House was travelling west in Heaslip Street. The learned trial judge made the finding, after hearing the evidence which he set out at 10 of his judgment on 154 of the appeal book, that he was satisfied on the probabilities that the defendant, as he approached the give way sign, reduced significantly the speed of his vehicle so that if he did not actually come to a complete stop, he was not more than just barely rolling forward as his vehicle moved past the sign and that it was probable that Mr Stagni knew of the give way sign and intended to obey it and did look to his right before entering the intersection. He also found the defendant did not see any headlights approaching from his right when he stopped, or almost stopped, and looked to his right. He said he found the vehicle driven by Mr House and the vehicle coming from the right did have its headlights on because he said he found no reason for disbelieving the plaintiffs evidence to that effect. He then said it followed as a matter of reasonable inference that if the defendant had been keeping a proper look out he, too, ought to have seen the approaching headlights and he failed to do so. On those findings it may be thought that it was inevitable that the plaintiff should at least get a verdict against the defendant whether or not the other driver contributed to the accident. However, the learned trial judge went on further and said: "Tt does not necessarily follow, however, that his said failure caused the said collision". He thought it was significant that the plaintiff put the lights "a fair way away" and nobody had said anything about the apparent speed of the approaching vehicle. He said other matters were left unexplained in the evidence, eg, the point of impact. In the course of giving his reasons for judgment, the learned trial judge referred to the unsatisfactory nature of the evidence given by witnesses in the case, including the plaintiff, and he found the plaintiffs evidence unsatisfactory for the reason, inter alia, that when he was asked after the accident who was driving the car in which he was a passenger, he said that it was a man called Mark and that later he told Mr Stagni, the defendant, that he had told the police it was Mark and that Mr Stagni ought to do the same. Mr Stagni was charged with failing to give way to the vehicle driven by Mr House and he pleaded guilty. I am prepared to approach this case upon the basis that it is not open to this Court to disturb findings on credibility concerning the plaintiff's evidence, as the learned judge found. However, the plaintiff's explanation as to why he acted as he did, although morally reprehensible, is not, to my way of thinking at least, as illogical as others might think. lam of the opinion that the learned trial judge was clearly wrong when he said it had not been established that there was a relevant connection between the found and previously admitted negligent conduct of the defendant and the injuries suffered by the plaintiff. There was some debate in these proceedings as to whether the Court can set aside a decision only if it finds that decision to be clearly wrong or whether that limitation applies only where the impugned finding is credibility. I do not think WRRRISON v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Meaghe JA) this matter needs to be pursued because I am of the opinion, with the greatest respect to the learned trial judge, his conclusion was clearly wrong. Upon his Honour's findings, I cannot see how it was open to him to conclude otherwise than that the defendant's conduct was a contributing cause to the accident and hence to the injuries sustained by the plaintiff. His Honour has found that the defence of volenti non fit injuria was not made out. He also found the question of contributory negligence should be dismissed. That being so, in my opinion, the plaintiff is entitled to a verdict. It is agreed between the parties that if this appeal is to be upheld, the plaintiff is entitled to a verdict in the sum of $80,933.60 and I am of the opinion that the plaintiff should obtain a verdict in that amount. I therefore propose that this appeal be upheld. The judgment of Sully J be set aside and in lieu thereof there be entered a judgment for the plaintiff in the sum of $80,933.60. The defendant to pay the costs before Sully J and the costs of this appeal but to have, if so qualified, a certificate under the Suitors Fund Act 1951 in respect of the costs of the appeal. KIRBY P: I agree with the orders that have just been proposed by Cripps JA and with his reasons. I have reached the same conclusions as Cripps JA has expressed with hesitation. The reasons of Sully J are extremely careful and thorough. However, I have reached the conclusion that on the critical matter of causation his Honour fell into error. I do not accept that, in a case where the credibility of witnesses does not govern the decision it is necessary, within Warren vy Coombes (1979) 142 CLR 531 for an appellant in a rehearing to show that a decision of the trial judge is "clearly wrong" or "plainly wrong". See Ibid 551. However, that issue does not need to be determined in this case because, with every respect to the learned trial judge, like Cripps JA, I have come to the conclusion that in this instance his Honour's conclusion on the critical question was clearly wrong. This conclusion requires that the orders proposed by Cripps JA should be made and for the same reasons. Meagher JA I agree with Cripps JA and also I agree with Kirby P. KIRBY P: The orders of the Court, accordingly, are as provided by Cripps JA. Unless there is any agreement to the parties to the contrary, the appellant, upon the logic of the Court's reasons for upholding the appeal, the plaintiff would be entitled to have the judgment entered as at the date of the trial. The orders as proposed by Cripps JA will stand as pronounced. However, in case of any dispute as to the operative date, the parties may have the matter restored to the list upon motion. ORDERS 1. Appeal allowed; 2. Set aside the judgment of Sully J in favour of the defendant; 4. In lieu thereof, enter judgment in favour of the plaintiff in the sum of $80,933.60; 5. The defendant to pay the plaintiff's costs of the trial before Sully J; and 6. The respondent to pay the appellant's costs of the appeal but to have, if so qualified, a certificate under the Suitors' Fund Act 1951 in respect of the Costs of the appeal. 4 UNREPORTED JUDGMENTS Counsel for the appellant: AF Puckeridge QC with S Longhurst Solicitors for the appellant: Russell McLelland and Brown Counsel for the respondent: DF Rofe QC with P Ryan Solicitors for the respondent: Solicitor for the Government Insurance Office of New South Wales