KEIGHRAN v FLETCHER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER and HANDLEY JJA 16 August 1994 , 16 August 1994 [1994] NSWCA 161 MOTOR VEHICLE ACCIDENT — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — CHALLENGE TO JUDGE'S FINDING ON WITNESS EVIDENCE — AUSTRALIAN POSTAL COMMISSION v ABALOS (1990-91)171 CLR 167. FACTS: The appellant appealed from findings of Grogan DCJ against him as to the contributory negligence of the respondent in allegedly failing to look to her right and swerving before the collision. HELD: (1) The decision of Grogan DCJ based on a finding that he believed one witness and not another prevents any appellate court from overturning that decision. ORDERS: (1) Appeal dismissed with costs. Meagher JA The plaintiff, Mrs Fletcher, was, on 25 November 1989, driving on the Pacific Highway and wanted to make a right hand turn at Wharf Road, John's River. She knew the intersection well. She proceeded to make such a turn, activating her right hand indicator. Meanwhile the defendant, Mr Keighran, who was driving his car in the same northerly direction behind her, growing impatient with the sluggishness of the traffic, decided to go out into the south-bound lane and jump a few cars ahead doing a speed of 100 kilometres an hour on his own story. In executing this manoeuvre he drove straight into Mrs Fletcher's car at a time when she was in the process of crossing the south-bound lane of the highway into Wharf Road. When Mr Keighran saw Mrs Fletcher he made no effort to stop. He did not even apply his brake. He did not steer his vehicle so as to avoid the collision. All he did was condescend to take his foot off the accelerator and flash his headlights; nothing more. Not surprisingly on those facts Grogan DCJ found for the plaintiff. In so doing he believed the plaintiff and disbelieved the defendant. He also disbelieved a witness to the accident. That brief statement prevents any appellate court from overturning that decision. More than that, if his Honour found the facts in any other way, I think there would have been a duty on the evidence to reverse. The defendant has appealed. After about an hour the appeal against liability was abandoned. That left as a major issue only the question of contributory negligence. On this matter two points were urged on us. The first was that the plaintiff was guilty of contributory negligence in swerving to the left before turning right. However the plaintiff gave evidence that she did not swerve to the left and the judge believed her. That disposes of that point. 2 UNREPORTED JUDGMENTS Secondly, it was submitted that the plaintiff should not have turned right without looking to her right, in which case she would have seen the defendant, and having seen the defendant, remained until the defendant passed. There was, in my view, no reason why his Honour should have found that she did not look and there was nothing in the evidence which compelled his Honour to conclude that if she did look, she would have seen the defendant. That disposes of that. I have already said enough, I think, to indicate that in my view I regard the appeal as frivolous and it should be dismissed with costs. Priestley JA I agree with Meagher JA's conclusions, although I do not go as far as he does in classing the appeal as a frivolous one in regard to contributory negligence. I do, however, share his view in the sense that it seems to me that on the materials, those grounds of appeal related to challenging the judge's finding of negligence against the defendant were bound to fail. In regard to contributory negligence it seems to me that at a logical level there were some faint arguments to put to the court. When the matter is looked at in a general way it seems to me that if you look simply at the statement given by the defendant to the police immediately after the accident, it is quite obvious on his own account that he was overwhelmingly the cause of the accident. A point relied upon by Dr Morrison was that since the evidence of the witness, Mr Richards, was that of an independent person who evidently thought from what he had seen that the respondent may have had some responsibility for the accident, that should have weighted heavily with the trial judge, who should have accepted it. The problem with reliance on this matter is this: although Dr Morrison points with some logic to the question why would Mr Richards take the view that he apparently did unless there was some factual material to base himself on, nevertheless, when the actual evidence in the case is looked at, one finds two features of Mr Richards' evidence which raised factual questions which it was for his Honour to decide, and in regard to which his Honour's decision on the facts is virtually unchallengeable in view of the Abalos v Australian Postal Commission (1990-1991) 171 CLR at 167 line of authority. The first matter is that part of Mr Richards' evidence in cross-examination in which he had indicated that when following the plaintiffs car approaching the intersection where the accident took place, he at first had been intending to overtake the plaintiffs car on the left hand side and then subsequently passed it on the right hand side. In the times with which his evidence was concerned and within which the accident eventually took place, it is a little hard to reconcile this evidence with the balance of what he said. This aspect of his evidence, I think, would legitimately have caused the judge to wonder about the accuracy of his recollection. The other and factually simpler aspect is that on Mr Richard's account the plaintiff's vehicle had actually begun to make a left hand turn either into or towards Wharf Road on the west side of the highway. The plaintiff was asked about this and she said it did not happen. Her description was of what was for her a routine manoeuvre of making a right hand turn from the lane next to the centre line. The trial judge saw both these witnesses and accepted the plaintiff. This, I think, he was fully entitled to do. Once he had reached that conclusion about that aspect of the evidence, it followed that he had to have doubts about the remainder of Mr Richards' evidence and this disposes of any weight the argument depending on Mr Richards' independence might have. URJ KEIGHRAN v FLETCHER (Handley JA) 3 The case seems to me to be one where the factual materials and the judge's decision about them being so intertwined with his perception of the three main witnesses is one where this Court should not, even if it were disposed to do so, interfere. I agree with the orders proposed by Meagher JA. In the light of the court having come to this conclusion, certain other points which Dr Morrison had indicated he would wish to argue had he had any success in the initial part of the appeal, do not arise for decision. Handley JA I agree. I agree substantially with the reasons given by Priestley JA. In my view the challenge to the trial judge's finding that there was no contributory negligence here in the end can be seen to be without substance. Prestley JA: Order of the court is the appeal is dismissed with costs and the court notes although it may be unnecessary to do so that that means Grogan DCJ's judgment is in full force and effect and is carrying interest as and from the date it was pronounced. Any accounting between the parties in respect of payments made between the judgment and the appeal on account of the judgment can be worked out between the parties in the ordinary way. Counsel for the Appellant: AS Morrison SC/RS Bell Solicitors for the Appellant: Stewart Cuddy & Mockler Counsel for the Respondent: C Branson QC/T Meales Solicitors for the Respondent: Davies & Spicer