URBAN TRANSIT AUTHORITY OF NSW v HAMMOND SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and Cripps JJA 16 June 1993, 16 June 1993 [1993] NSWCA 276 NEGLIGENCE — contributory negligence — bus hits plaintiff on pedestrian crossin g — inconsistencies within and between evidence of witnesses — trial judge prefers plaintiff's account in finding driver negligent and absence of contributory negligence — whether error in factual findings in dealing with varied accounts — held: no basis for interfering with judge's findings as entitled on evidence to make conclusions he did. Priestley JA Mr Sternberg, counsel for the appellants in this matter, has madeso me careful and detailed submissions, in the course of which he has analysed the evidence of various witnesses in this case. The case is one in which his client s, the Urban Transit Authority of New South Wales and their bus driver employee, appeal against a District Court judgment against them of $33,044. This was pronounced by his Honour Judge Hosking on 11 November 1991. The plaintiff in the case was a man in his sixties who had been hit in a pedestrian crossing by a bus on 6 June 1986, and who claimed the Authority and its driver were liable to him for his damages as a result. The Authority and the driver have appealed against the judge's findings that the driver had been negligent and that the plaintiff was not guilty of contributory negligence. No question has been raised in the appeal about the amount awarded as damages. The evidence at the trial about negligence came from four witnesses - the plaintiff; Mr Russell, who was standing next to the plaintiff just before he wa s hit; Mrs Deiter, who was a passenger on the bus; and Mr Boscolo, the bus driver. There was also in evidence a statement by Mr W Harvey made on 3 April 1987. He was a friend of the plaintiff, who had been with the plaintiff when he was hit but who had died before the trial. Mrs Deiter did not see the accident. Those who did all gave somewhat different accounts of it. All the witnesses gave somewhat different accounts also of the location of a bus stop to the west of the pedestrian crossing upon which the accident happened. The plaintiff had alighted from the bus at the bus stop to the west of the pedestrian crossing and then had walked towards the pedestrian crossing. The bu s' route took it eastward from where it had stopped at the bus stop, towards the pedestrian crossing. Those witnesses who saw the bus or were in the bus at the time all gave different estimates of the speed at which it was travelling at th e time when it hit the plaintiff in the pedestrian crossing. The plaintiffs account of the accident was as follows: "A. I stepped off the kerb with me right foot. The bus was there, stationary, I stepped off the kerb with me right foot. As soon as I stepped off he started up. I pivoted HIS HONOUR: Q. He stepped off the kerb with the right foot? A. Yes JENKYN: Q. Yes? 2 UNREPORTED JUDGMENTS A. Brought me left foot to the side of it and I looked up and the bus was started up, coming down - coming. I turned Q. Now just stopping you there, which way did you turn, towards the bus or the other way? A. I turned to the right. I turned to the right. Q. Turned to the right, yes? A. And then HIS HONOUR: Q. I think the word you used was pivoted, wasn't it? A. Yes. And I moved me right foot across and the bus was on me and it ran over me left leg. Me left foot. And I got back on to the footpath JENKYN: Q. Before you stepped off the footpath on to the roadway did you look anywhere? Did you see anything before you stepped off? Did you see the bus or not? A. I saw the bus. It was stationary. Q. Was that before you stepped off on to the roadway? A. The bus was stationary there, yeah. The bus was not in the crossing. Q. And when you say the bus went over your foot, or your leg, which leg did it go over? A. The left leg." He maintained this account in cross examination. His account involved the assertion that it was the front wheel of the bus which had hit him. As I have indicated, other witnesses gave different accounts of precisely how it was that the bus and the plaintiff came into contact. The Judge summarised the defendant s' case by saying that the plaintiff had still had one foot on the footpath. The Judge said he accepted that the plaintiff was in the crossing, about a metre out from the kerb, and that he did not accept that the plaintiff stepped into the side of the bus, which was essentially the defendants' case. It became quite clear in the course of Mr Sternberg's analysis of the evidence that what happened in this in the way the evidence came out from the various witnesses was that the classic situation had occurred, where something unexpected happened in the sight or hearing of a number of people and no two of them were later to describe what happened in exactly the same way. It is a familiar phenomenon frequently described in the psychology text books. Courts have to de al with it all the time. Different people see different aspects of an incident suc h as the present one. They see it from slightly, or sometimes from very different viewpoints and the Court is confronted with varying descriptions in which some elements in common can be found often in the evidence of various witnesses. Frequently the Court can do no better than assess the evidence from all the witnesses and then take some of the salient features from different parts of th e evidence of different witnesses, sometimes accepting part and not accepting all of a witness' evidence. This is a very familiar part of fact finding in cases including cases such as the present. Mr Sternberg succeeded in showing some internal inconsistencies in the evidence of the plaintiff and, it seems to me, that there is some inconsistency within the evidence of other witnesses as well. However, the inconsistencies that he was able to draw to the Court's attention did not seem to me to be such as to warrant this Court in saying that the Judge could not accept the essential part of the plaintiff's evidence about how the accident happened. URJ URBAN TRANSIT AUTHORITY OF NSW v HAMMOND (Cripps JA) 3 It is clear from his Honour's judgment that, having seen and heard both the plaintiff and the bus driver, who in a way were the two principal actors in the incident, he did not accept the bus driver's recollection and did accept the plaintiff's recollection. It is also apparent that he accepted the plaintiff's recollection in some respects in preference to that of one of the witnesses cal led in the plaintiffs case, and perhaps other witnesses as well. The practice of this Court as an intermediate appellate Court, reinforced by a number of decisions in recent years by the High Court, is that when a disputed question of fact has been decided by a single judge at trial and the decision is affected by the demeanour of different witnesses and the need on the Court's part to make a decision choosing between the accounts or parts of the accounts of various witnesses, the appellate Court should not interfere with the trial Judge's findings unless there are matters in the evidence which are so strong that to accept a factual conclusion inconsistent with them would clearly be an error. T he thrust of the present appeal has been to assert that the matters in the plaintiff's evidence which can be criticised are such when taken along with other evidence in the case as to fall into that category. In my opinion, the matters relied upon in support of this submission are not nearly strong enough to carry the case into the category where this Court should interfere. In my opinion, the Judge was entitled on all the evidence before him to come to the conclusion that he did. It basically involved the proposition that there was a duty upon the bus driver to keep such a look out as the bus moved off from where it had stopped towards the pedestrian crossing that if it were necessary to do so the bus could stop before reaching that foot crossing. Indeed, the bus driver in cross examination agreed that what I have just stated as being the alleged legal requirement was the view which a prudent driver should take anyway. There was evidence before the trial Judge that there were a number of people standing about waiting to cross the pedestrian crossing. The bus driver denied this. The judge's acceptance of the evidence that there were people waiting to cross indicates not only that he did not accept what the bus driver said on that matter but also that in the Judge's view the bus driver could not have been keeping a proper look out as he moved towards the pedestrian crossing. On this basis the essentials of negligence were made out. Similarly, on the material the Judge accepted, he was in my opinion entitled to conclude that the defendants had not established contributory negligence against the plaintiff. It follows, in my opinion, that the appeal must be dismissed with costs. Clarke JA I agree. Cripps JA I agree. Priestley JA: The order of the Court is that the appeal is dismissed with costs. Counsel for the Appellant: PR STERNBERG Instructed by: GORDON and JOHNSTONE Counsel for the Respondent: P JENKYN Instructed by: JOHN C PALMIERI, HAMILTON