THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v MORTIMER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, HANDLEY and SHELLER JJA 8 March 1994, 6 April 1994 APPEAL FROM DISTRICT COURT — Collision at intersection crossing Great Western Highway — Duty of driver to obey traffic rules — Failure to give way to vehicle from right — Crossing when vision to right not clear — Driving round back of truck turning to left off Highway — Both drivers negligent — Apportionment: Plaintiff 80 per cent; Defendant 20 per cent. APPORTIONMENT — Principles on which apportionment made. ALLEGATIONS OF JUDICIAL BIAS — Duty of counsel making allegation to satisfy self that adequate grounds for making allegation. ORDERS 1. Appeal upheld with costs. 2. Judgment below set aside. 3. In lieu substitute verdict for respondent for $30,060.80 and judgment for $6012.16 to date from the date of the original judgment. 4. Respondent to have the costs of the trial. 5. Respondent to pay the appellant's costs of the appeal to this Court and, if entitled, have a certificate under the Suitors' Fund Act. Mahoney JA On 30 November 1986 a collision occurred between vehicles driven bythe plaintiff Michelle Lorraine Mortimer and Lisa Marie Moricz, for whom the Government Insurance Office of New South Wales is responsible. The plaintiff sued the defendant for damages for the injuries which she suffered in the collision. On 2 October 1991, his Honour Judge Nield held that both drivers were negligent, apportioned responsibility for what occurred equally between them, and awarded damages to the plaintiff accordingly. The defendant has appealed to this Court against his Honour's judgment. Mr Tonner, for the defendant, has pursued four grounds: that Mrs Moricz was not negligent; that if she was her responsibility was less than fifty per cent; that the judge's conclusion that $30,000 was appropriate for general damages was wrong; and that, during the trial, the judge showed bias against the defendant or for the plaintiff. In order to deal with the submissions made by Mr Tonner for the defendant and Mr Gleeson QC for the plaintiff, it is necessary to refer in some detail to the facts. With the exceptions to which I shall refer, the primary facts are not significantly in doubt. What is in question is the inferences to be drawn from them. I shall therefore, with relevant qualifications, take the facts from his Honour's judgment. The collision occurred during the early afternoon of 30 November 1986 at the intersection of Doonmore Street and the Great Western Highway at Penrith. The intersection is a cross intersection, Doonmore Street running north and south and the Highway running east and west. Both Doonmore Street and the Highway were then bitumen surfaced from gutter to gutter and both provided sufficient 2 UNREPORTED JUDGMENTS space for two lines of vehicles in each direction. The intersection was controlled by a "Stop" sign facing drivers of vehicles travelling both north and south in Doonmore Street. The Highway was then marked with unbroken centre lines to the east of the intersection. The plaintiff Miss Mortimer was driving her vehicle in a northerly direction along Doonmore Street towards the Highway. She intended to cross the Highway. Mrs Moricz was driving her vehicle in a westerly direction along the Highway towards Doonmore Street. The plaintiff was alone. Mrs Moricz was accompanied by a Miss Doreen Marie Ballardin. The oral evidence in the proceeding was given by the plaintiff, Mrs Moricz and Miss Ballardin. The judge said: "Insofar as the demeanour of the witnesses may assist me, I was impressed by the plaintiff and Miss Ballardin, but I was not as impressed by Mrs Moricz. I regret to say that her insistence upon her good driving procedure did not impress me." There was a dispute between the witnesses as to what happened. The judge, in his clear and concise judgment, made findings. Subject to what I shall say, I shall state the facts as they emerge from his Honour's findings. The plaintiff stopped at the "Stop" sign at the intersection. The traffic from her right on the Highway was heavy. She waited where she stopped for a substantial time: it was said to be about five minutes. The learned judge said: "The plaintiff said that approaching her from her right hand side was a large truck towing a large boat on a trailer and that the driver of the truck moved the truck to the middle of the road before commencing to negotiate a left hand turn into Doonmore Street, so that the entire westbound section of the Highway was blocked by the truck and trailer. Mrs Moricz does not remember what was the preceding vehicle to her vehicle although her vehicle was two or three car lengths behind the preceding vehicle. Miss Ballardin does not remember whether there was any vehicle preceding the vehicle in which she was travelling. I find it strange that Mrs Moricz cannot say what was the preceding vehicle and that neither Mrs Moricz nor Miss Ballardin can deny that a large boat on a trailer being towed by a truck was preceding the vehicle in which they were travelling. I accept the plaintiffs evidence as to the existence of the truck, boat and trailer and as to the manoeuvre performed by the truck driver. The plaintiff said that the Highway to her right was blocked by the truck and that the Highway to her left was free of vehicles. Both Mrs Moricz and Miss Ballardin said that there were vehicles being driven easterly on the northern half of the Highway. I cannot accept that the plaintiff would attempt to cross the Highway when there were both westbound and eastbound traffic, as Mrs Moricz and Miss Ballardin said. I accept the plaintiff's evidence that the northern half of the Highway was free of vehicles." The plaintiff drove her vehicle "to the centre of the intersection" and "she was there when she saw the vehicle being driven by Mrs Moricz approaching ha from her right hand side while overtaking the truck and trailer". She said that she applied her brakes and stopped and that the vehicle driven by Mrs Moricz "side swiped" her vehicle as it went past. She said it skidded for some distance and then stopped. Subject to what I shall say, his Honour accepted that account of the accident. URE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v MORTIMEB (Mahoney JA) There was, however, a dispute as to whether, as Mrs Moricz's vehicle approached the intersection, it crossed to its incorrect side of the Highway. Miss Mortimer said it did; both Mrs Moricz and Miss Ballardin said it did not. The learned judge said: "Tam unable to decide whether Mrs Moricz drove her vehicle onto the incorrect side of the roadway. I suspect that after the truck and trailer had moved sufficiently into Doonmore Street, Mrs Moricz commenced to drive her vehicle past the trailer and, the presence of the vehicle being unexpected, the plaintiff gained the impression that the vehicle driven by Mrs Moricz was on its incorrect side of the Highway." Mr Tonner, for the defendant, submitted that, in deciding the responsibility of the drivers for the accident, it is important that the Court decide whether Mrs Moricz drove her vehicle across the double centre lines and onto the incorrect side of the Highway. The plaintiff's case was, or was to the effect, that the truck, in its manoeuvre, blocked the whole of the southern side of the Highway and that she could therefore safely advance to the centre of the Highway. If the truck was at the time blocking the whole of the southern side of the Highway when she advanced to the centre, she would not have been in danger of being struck by a vehicle following the truck. She said that she was driving at about forty kilometres per hour, that there were no vehicles approaching on the Highway from her left, and accordingly that she could safely cross the Highway into the northern portion of Doonmore Street. She would, it was suggested, be in a position of danger only if a vehicle coming from her right on the southern side of the Highway passed the truck by driving across the double centre lines and onto its wrong side of the Highway. I do not accept fully that, if this was so, what she did was without negligence. She could not see what vehicles were coming from her right hand side or at what speed: her view was blocked by the truck. The traffic had been heavy in that direction for a considerable time and it was foreseeable that vehicles might well be approaching from that side which, by passing behind the truck, would come in contact with her. She could not assume - at least, she could not assume without reservation - that vehicles coming from that direction would obey the traffic requirements and not cross the centre lines: see generally Sibley v Kais (1967) 118 CLR 424 at 427. Therefore, in my opinion, there was in such a case a degree of risk. However, her negligence would have been the greater if she had crossed the intersection when there was the opportunity for a vehicle approaching from her right hand side to come into the intersection behind the truck and without crossing to the wrong side of the Highway. The arguments of each counsel suggest that it is necessary that the Court determine this question. It was submitted by Mr Tonner for the defendant that what the judge said constituted a finding that Mrs Moricz did not drive her vehicle onto the incorrect side of the Highway. His argument suggested that, in the fact finding process, the practical onus of establishing the crossing of the centre lines lay upon the plaintiff, that if his Honour was not satisfied that that had been established, the proceeding should be determined on the basis that it did not, and that accordingly the negligence of each party is to be determined upon the basis that Mrs Moricz remained on her correct side of the Highway. The position is, I think, not so simple. His Honour's finding was, "I am unable to decide whether Mrs Moricz drove her vehicle onto the incorrect side of the roadway". His Honour was, by "whether", intending to indicate that he made no formal finding on the question. 4 UNREPORTED JUDGMENTS Had he intended to indicate a finding, he would, I think have phrased his judgment differently. His succeeding remarks suggest, perhaps, that had he decided the matter, he would have decided that the plaintiff was, on this point, wrong. But in my opinion, he did not so decide. For this Court to decide this question involves a process closely approaching, speculation. It is necessary both to choose between the accounts of witnesses whose demeanour was not significant in the process and to weigh up factual probabilities Upon such a process of reasoning, I think the probability is that Mrs Moricz did not drive onto the wrong side of the road. Both Mrs Moricz and Miss Ballardin remembered nothing unusual about the event until the plaintiffs vehicle and their vehicle collided. His Honour did not find them positively dishonest: he accepted Miss Ballardin as essentially accurate. It was the accuracy rather than the honesty of Mrs Moricz which, I believe, was in question. Neither lady recalled seeing the truck and the large boat that was with it: their recollection was that the car simply proceeded along the Highway. Had it been necessary to cross double centre lines to pass round the truck and the boat, it is probable they would have remembered it. It is probable that they did not remember seeing the truck or the boat because the truck did not require them to diverge from their course along the Highway. It is probable that, if the truck had blocked their passage along the Highway so that they were required to cross double lines to avoid it, they would have remembered it. Accordingly, if that had happened and they yet said they did not recall the truck, the likelihood was that they were deliberately lying. But that, I think, was neither found nor urged. Reasoning of this kind is, of course, tenuous. Reasoning to the contrary would, I think, be the same. However, on balance, I conclude that Mrs Moricz's vehicle remained on its correct side of the road prior to the collision. If this be so, then Miss Mortimer commenced her progress into the intersection at a time when, as the event showed, it was possible for a vehicle coming from her right to come into collision with her on its correct southern side of the Highway. 1. NEGLIGENCE: Upon the basis to which I have referred, Miss Mortimer was negligent in driving into the intersection when she did. There is, however, an additional factor. Under the Motor Traffic Regulations 1935 provision was at the time made for "traffic control signs". The effect of the "Stop" sign at the intersection was that the driver of a vehicle approaching the intersection as Miss Mortimer was was required "on reaching or after reaching the intersection (to) allow any other vehicle which is upon or near the intersection and with which his vehicle might collide if it were to proceed, to pass in front of him...": see Reg54. In argument, reference was made to Reg54 and the argument has proceeded upon the basis that that or a similar provision operated at the relevant time. Such a regulation would, in my opinion, provide an additional reason why it was negligent for Miss Mortimer to enter the intersection as she did. In any event, it was her duty in addition to give way to vehicles approaching from her right if and insofar as the vehicle was not otherwise controlled by such a traffic sign. I am satisfied also that, in entering the intersection as she did, Mrs Moricz exercised less than proper care for her own safety and that that lack of care contributed to what occurred. Upon the facts as they were found by the judge, her vision to her left was impeded. The turning truck would have prevented her seeing, or seeing fully, any vehicle entering the intersection from her left. She URE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v MORTIMEB (Mahoney JA) conceded that she did not see Miss Mortimer's vehicle. She did not suggest that she slowed as she approached the intersection. In the sense to which I have referred, she had a claim to right of way. But, if her view was impeded as it was, the exercise of proper care required that she accommodate what she did to the possibility that a vehicle which she could not see, or indeed a pedestrian, might be upon the intersection. She did not do so. 2. APPORTIONMENT: It was submitted by Mr Tonner that, in these circumstances, Mrs Moricz was not responsible for the collision or, at least, her responsibility was less than equal to that of Miss Mortimer. The apportionment of responsibility and consequently the calculation of damages is to be made according to well recognised principles: see, eg, Pennington v Norris (1956) 96 CLR 10. My own view is that an assessment of this kind should be interfered with only in special cases. In Pennington v Norris: at 15 and 16; Dixon CJ Webb, Fullagar and Kitto JJ said: "It is clear that the Act intends to give a very wide discretion to the judge or jury entrusted with the original task of making the apportionment. Much latitude must be allowed to the original tribunal in arriving at a judgment as to what is just and equitable. It is to be expected, therefore, that cases will be rare in which the apportionment made can be successfully challenged...". However, in the present case the apportionment is, in my opinion, affected by the conclusion that, contrary to the plaintiff's contention, Mrs Moricz did not drive onto the wrong side of the Highway at the intersection. Her negligence consisted, I think, essentially in her failure to take care against the possibility of a vehicle being upon the Highway where she could not see it. She conceded that she did not see the plaintiffs vehicle. But her lack of care was, in my opinion, less than that of the plaintiff. The plaintiff entered the Highway on an occasion when traffic was heavy without being able to see whether or what vehicles were coming from her right or at what speed and, as I have found, she did so at a time when vehicles approaching from her right could pass behind the truck into the intersection without leaving their correct side of the Highway. In all the circumstances, I would see her responsibility for what occurred as being eighty per cent and that of Mrs Moricz as being twenty per cent. 3. GENERAL DAMAGES: The judge assessed the plaintiff's general damages, past and future, at $30,000. She had suffered, from the accident, pain in her neck, right wrist and low back. The pain in her neck and low back resolved over a few weeks. The pain in her right wrist persisted and was persisting at the date of the trial. The medical evidence was that the plaintiff experienced "pain and swelling in the back of her wrist after moderate to strenuous use of the arm" and that "there has been a localised tender swelling present at times". She had for one or two years "difficulty carrying out forceful movements with the wrist, eg, heavy lifting, tight jars and stiff taps". She did not play her sport of ten pin bowling for some years and her playing it "still causes quite marked pain in the wrist". The wrist aches "after prolonged periods of typing". The report of Dr Richard Deveridge, a specialist surgeon, given on 15 September 1989, was: "She has now resumed most activities that would otherwise be available to her but forceful extension (as required in ten pin bowling) will continue to cause symptoms indefinitely. It is also probable that typing for a full working shift will intensify her symptoms, and this should also be avoided, indefinitely. Future treatment will be along conservative lines with strapping of the joint when 6 UNREPORTED JUDGMENTS symptoms are severe. There is a slight chance that she will require surgery for excision of the ganglion.... The prognosis generally appears fair, but her disability is expected to be permanent. Loss of effective use of her right upper limb amounts to about 5%." The plaintiff herself gave evidence as to, eg, difficulties at home. She said, for example, that "when the lump is there especially, even using kitchen tongs, that's a big task. It hurts". She referred to pain on the top of the wrist and a lump that develops there from time to time. That she said "affects just about everything". She has problems using scissors, typing, "just about everything". The lump occurs weekly. However, she has had no loss of time from work. She said: "I mean when the lump is there it's terrible you might say. Any other times I mean it might ache now and then but it's minor to what it is when the lump is there...". No medical evidence was given for the defendant. There was no evidence as to whether surgery would finally remove her problems or of the risks involved. The matter appears not to have been investigated further. The plaintiff has continued in her condition after the accident for some five years. No case was established that, by not undertaking surgery, her condition could, with reason, be expected to be improved. The award of general damages is, I think, somewhat higher than, as a trial judge, I would have awarded. But the award of damages is a matter lying essentially in the discretion and judgment of a trial judge. It is not necessary to canvass the authorities in which the role of an appellate court has been discussed. It is sufficient in my opinion to conclude that the assessment of compensation in that sum does not go beyond what would be available to a sound discretionary judgment. I would not interfere. 4. JUDICIAL BIAS: The defendant alleged that the trial judge had exhibited bias and for that reason the judgment should be set aside. Mr Tonner, in making this submission, relied - and, when pressed - only on the following exchange in the cross-examination of the plaintiff: "Q. You'd agree wouldn't you that if you'd looked and if there was a truck there, nothing would have prevented you seeing what was behind it, would it? A. I did not observe the car behind the truck, no. Q. Well you can't explain why you didn't see it then can you? A. No. I did not see the car behind the truck. Q. You can't explain why you didn't see it. Could an explanation be you didn't look? A. I did look. Q. Well if you looked how do you explain not seeing it? A. I looked, I can tell you that. I looked. Q. How do you explain not seeing it if you looked? HIS HONOUR: Mr Charteris, she said she looked. She said she didn't see. It could have been obscured. CHARTERIS: That's not the answer she's volunteering, your Honour. HIS HONOUR: I know that, Mr Charteris, but you have her saying she looked and didn't see, and it was clearly there to be seen if it was not obscured, so the conclusion is obvious. CHARTERIS: Well there are two possibilities, your Honour - one she didn't look, and one it was obscured. HIS HONOUR: Well she said she did. URE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v MORTIMER (Mahoney JA) CHARTERIS: Q. And the damage to the other vehicle was to the front passenger's side wasn't it? A. It was the whole of the passenger's side." There are occasions when the questions asked by a judge or the interruptions by him may constitute a ground for setting aside a judgment. A judgment may be set aside because, by reasons of questions and interruptions, there has not been a fair hearing. Fifty years ago, the English Court of Appeal restated the principles in this regard: see Yuill v Yuill (1945) 1 All ER 183; see generally Galea v Galea (1990) 19 NSWLR 263 and the cases there referred to. This, it is agreed, is not such a case. A judgment may be set aside also where the judge was, or relevantly appeared to be, biased: Livesey v New South Wales Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; (1988) 13 NSWLR 502; Australian National Industries Ltd v Spedley Securities Ltd (In Liquidation) (1992) 26 NSWLR 411. It is on this that the defendant relied in this appeal. It contended, in some at least of the submissions made, that there was actual bias. If there be bias, it is proper that it be alleged. The fact that an allegation, if it is to be made, is to be made in respect of the person in high office does not mean that the allegation should not be made. In this regard, no person is in a position of privilege by reason of his office or his cloth: Mohahir Ali v Ellmore (1953) 2 All ER 1044 at 1049 and 1050, per Hodson LJ. However, an allegation that a judge acted in a proceeding notwithstanding that he was biased, is a serious allegation: at least ordinarily it will be so. It will ordinarily involve judicial misconduct, judicial incompetence, or default generally of a similar nature. If an allegation may properly be made, it is the right and, in some cases, the duty of a counsel or party to make it. In Zanatta v Cleary (1976) 1 NSWLR 231 at 241, I said: "T would not desire to qualify the right of a party, or the right of his professional advisers, fearlessly to press every matter which, within the law, may properly be pressed in support of a claim. However, justice requires that a proper sense of responsibility be exercised in this regard and if evidence, the tender of which is apt to cause damage to others, will not be admissible, then justice will normally require that that evidence be not tendered. The fact that such evidence may, if accepted according to its terms, indicate a degree of indiscretion would render it less rather than more appropriate to be tendered. Matters of indiscretion, if they arise, may be dealt with by other means." But it is accepted that, in respect of a party or a witness, a charge of misconduct should be made only where the party making it satisfies himself that there are grounds for making it: see Rajski v Bainton (1990) 22 NSWLR 125 at 135 to 137. To put the matter no higher, nothing less is to be expected where such an allegation is made against a judge. Such an allegation should not be made upon grounds that are equivocal or, a fortiori, flimsy. In this case, there is in my opinion no basis for the allegation of bias which has been made. It would not be open to be inferred from that which has been relied upon that the judge was in fact biased or, indeed, for any proper apprehension that he was. This ground of appeal should be dismissed. In my opinion the appeal should be upheld with costs. As the trial judge indicated, contributory negligence apart, there would have been a verdict for the plaintiff of $30,060.80. In the circumstances there should be a judgment for $6012.16. The judgment below should be set aside. There should be substituted a verdict and judgment for $6012.16 to date from the date of the original UNREPORTED JUDGMENTS judgment. The plaintiff should have the costs of the trial. The plaintiff should pay the defendant's costs of the appeal to this Court and, if entitled, have a certificate under the Suitors' Fund Act. Handley JA I agree with Mahoney JA. Sheller JA I agree with Mahoney JA. 4. 5. Respondent to pay the appellant's costs of the appeal to this Court and, 1. Appeal upheld with costs. 2. 3. In lieu substitute verdict for respondent for $30,060.80 and judgment for Judgment below set aside. $6012.16 to date from the date of the original judgment. Respondent to have the costs of the trial. if entitled, have a certificate under the Suitors' Fund Act. Counsel for the Appellant: RC TONNER Instructed by: PANDRESAKIS, SOLICITOR FOR GIO Counsel for the Respondent: JN GLEESON QC/PJ MENARY Instructed by: SMYTHE AND MALLAM