RYAN v GILL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SHELLER and POWELL JJA 2 February 1995, 2 February 1995 [1995] NSWCA 405 Negligence — motor vehicle — pedestrian found to have stepped from median strip into path of oncoming car travelling at a speed reasonable in the circumstances — judge sees motorist — prefers motorist's evidence — held: Judge's conclusion immune from disturbance. Abalos v Australian Postal Commission (1990) 171 CLR 167 applied. NEGLIGENCE — motor vehicles — collision with pedestrian — approach to median strip — group of pedestrians seen — speed of 30 kph — trial judge (Staunton DCJ) accepts driver's evidence that pedestrian stepped from median strip and came into collision with side mirror — judge holds that sole cause of collision was pedestrian's action — rejects arguments that car mounted median strip or was travelling at an excessive speed — held (Powell JA; Kirby P and Sheller JA concurring); (1) No error was shown in the findings of the trial judge or his conclusion and orders; (2) Having regard to their dependence upon acceptance of the driver's evidence which was not inherently improbable, the Court of Appeal was not authorised to disturb the trial judge's conclusion Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1992-1993) 177 CLR 472. Applied. Kirby I will ask Powell JA to give the first judgment. Powell JA By the Statement of Claim which was filed on her behalf in the District Court in November 1985 the Appellant sought to recover against the Respondent damages in respect of injuries which she sustained when she was struck by a portion of the defendant's motor vehicle when she was in Maroubra Road, Maroubra Junction, near its intersection with Anzac Parade. The case which the Appellant sought to establish on the hearing before the trial Judge, the then Chief Judge of the District Court, was that, at the time, she was crossing at Maroubra Road from South to North and had just reached the median strip, upon which she had placed her right foot, and onto which she was about to move, at which time, so she would have had it, she felt a heavy knock on her left knee, following which her left leg collapsed and she fell heavily on the roadway. Although the Appellant did not see what had struck her, it is implicit in the case which she sought to establish on the hearing that she was struck by the defendant's motor vehicle which had been travelling East in Maroubra Road on the Northern side of the median strip, which it had suddenly, and without warning to her, mounted. By contrast, the case which the Respondent sought to establish on the hearing was that he was driving East in the lane nearest to, but on the Northern side of, the median strip in Maroubra Road, having just moved out to pass some motor vehicles which were double parked in the two lanes closer to the northern kerb of Maroubra Road, and that, as he approached the point where the Appellant was standing on the median strip, and when he was almost upon her, the Appellant, 2 UNREPORTED JUDGMENTS without looking to her left, moved out into the roadway, and it was as a result of her doing so that she was struck by the off-side wing mirror of his car. As will be apparent from this short statement of the respective cases which the Appellant and the Respondent sought to establish at the trial, the two versions of what was alleged to have occurred were completely irreconcilable. The only witnesses who were called on the hearing who were able to give, and who in fact gave, direct evidence as to the circumstances in which the accident occurred were the Appellant, the Respondent and the Respondent's wife, the latter of whom gave evidence strongly corroborative of her husband's version of what had occurred. At the conclusion of the evidence, the Chief Judge delivered a short - but very clear - Judgment in which, after recounting, in a little more detail than I have done, the respective cases which the Appellant and Respondent had sought to establish, he found the following facts: 1. that the Respondent was travelling at a speed which was moderate and not excessive in the circumstances. 2. that the Appellant had moved across the Southern half of the road to the median strip and stood on the strip. 3. that the Appellant, without looking to her left, stepped out from the median strip and when the Respondent's vehicle was so close to her that he could take no braking or evasive action to prevent her from colliding with the side of the car, thereby breaking off the wing mirror. 4. that the Respondent's vehicle at no time went onto, or over, the median strip, being at all times eighteen inches to two feet from it. 5. that the Respondent at all material times was keeping a proper lookout. 6. that it was the Appellant's action in stepping off the median strip, without first looking to her left, and into the side of the Respondent's vehicle which was the sole cause of the accident. Although the Chief Judge, in the course of his Judgment, did not record, in express terms, his view as to the credibility of, on the one hand, the Appellant, and on the other, the Respondent and his wife, it is implicit in his Honour's findings that he preferred the evidence of the latter to that of the Appellant. It was on the basis of these findings that the Chief Judge found a verdict for the Respondent and entered Judgment accordingly. Despite the basis upon which the Appellant's case had been conducted on the hearing before the Chief Judge, Mr TD Kelly, who has appeared today for the Appellant, has sought to submit that, even if - contrary to his later submission - the Chief Judge's findings of fact are to be accepted, there should have been a verdict for the Appellant on the hearing, with Judgment being entered accordingly. That this should have been so, Mr Kelly submitted, was due to the fact that, even if the Appellant had stepped from the median strip into the side of the Respondent's car, the real cause of the accident was the negligence of the Respondent in approaching what Mr Kelly submitted was a situation of danger, at a speed which Mr Kelly submitted was excessive, and without, as Mr Kelly submitted that he should have done, sounding any, let alone any proper, warning to the pedestrians standing on the median strip. Having regard to the basis upon which the Appellant's case was conducted before the Chief Judge, I do not consider that the Appellant ought to be permitted now to raise this alternative case (Coulton v Holcombe!). The fate of the appeal thus falls to be determined on the basis upon which the case was conducted before the Chief Judge, and the evidence tendered to, and the findings made by, him. 1. (1986) 162 CLR 1 URJ RYAN v GILL (Powell JA) 3 With respect to Mr Kelly who has argued the matter on behalf of the Appellant most earnestly, and who has said all that could possibly be said on her behalf, it seems to me that this appeal can only be regarded as hopeless. As I have already indicated, it is implicit in the Chief Judge's findings that he preferred the evidence of the Respondent and his wife to that of the Appellant. This being so, the circumstances in which this Court might intervene so as to reverse those findings are strictly limited, as is made clear by the following passage in the joint Judgment of Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission2: "More than once in recent years, this Court has pointed out that a finding of fact by a trial judge based on the credibility of a witness is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of a witness, the finding must stand, unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage', or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable". Far from it being shown that the Chief Judge erred in any of the ways suggested by the High Court, it is my view that the decision to which his Honour came to was one eminently open to him and, for what it is worth, it is one with which I would agree. For these reasons I propose that the appeal be dismissed with costs. KIRBY P: I agree. I also agree that Mr Kelly has said everything that could be said. Naturally one feels sympathy for Ms Ryan who suffered serious and inconvenient injuries. However, whilst the rule of negligence governs the recovery of damages in motor vehicle cases, having regard to the findings of the primary judge, this Court cannot disturb the conclusions and the verdict and judgment which followed. Talso agree with Powell JA that the Appellant must, out of procedural fairness, be confined to the case which she presented before the District Court. But, even if the Court were to permit the case to be argued on the somewhat different factual footing which Mr Kelly sought to urge upon us, the same conclusion would follow. The essential step in the primary Judge's reasoning was his conclusion that the Respondent was travelling at a speed reasonable to the circumstances, he found that the real cause of the collision was the action of the Appellant in dismounting from the median strip and moving unexpectedly into the path of the oncoming vehicle driven by the Respondent. The conclusion so expressed was consistent with the evidence of the Respondent and his wife. It was, therefore, open to the primary judge (who had the advantage conventionally by our law attributed to him, of having seen those witnesses give their evidence). This Court does not see the witnesses give their evidence. The instruction of the High Court of Australia, including Devries, to which Powell JA has referred and in Abalos v Australian Postal Commission, and many other cases, restrains this Court from interfering with the decision which the primary judge reached. For those reasons, additionally, I agree with the observations which Powell JA has made. 2. (1992-1993) 177 CLR 472, 479. 3. (1990) 191 CLR 167 4 UNREPORTED JUDGMENTS I do not consider that there is any substance in the additional ground of appeal which was added by leave of the Court today. This was to the effect that his Honour erred in not stating his factual findings upon which he based his conclusion that the Respondent was travelling "at a speed which was moderate and certainly not excessive in the circumstances". Such a conclusion was undoubtedly open to his Honour upon the evidence of the Respondent and of his wife. I do not believe that the reasons proffered by Judge Staunton fell short of the standards which are required of Judges in this State. On the contrary, I consider that his Honour's reasons were clear. They stated amply enough, both to the Appellant and to this Court, the basis upon which his Honour had dismissed the claim of the Appellant. I agree that the appeal must be dismissed with costs. Sheller I agree with what has been said by the other members of the Court. On the facts as found by the Trial Judge, the result at which he arrived was, in my opinion, inevitable. I do not think any basis has been shown, in accordance with authority, for disturbing those findings. Accordingly, I agree that the appeal should be dismissed with costs. KIRBY P: The order of the Court is accordingly that the appeal is dismissed. The Appellant must pay the Respondent's costs. Appeal dismissed with costs. Counsel for the Appellant: TD Kelly (Sol) Instructed by: TD Kelly and Co Counsel for the Respondent: H Di Suvero Instructed by: Solicitor for NSW Insurance Ministerial Corporation