MANNING v McPHILLIP SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SHELLER and COLE JJA 16 November 1995 [1995] NSWCA 270 Kirby P I will ask Cole JA to give the first judgment. Cole JA On 22 September 1989 there was a motor vehicle accident in which a vehicle owned by the respondent William Arthur McPhillips and driven by the second respondent Karen Louis McPhillips collided with a vehicle being driven by Carolyn Lindsay Manning, the appellant. Mr McPhillips sued for property damage to his motor vehicle. Miss Manning, in separate proceedings, sued Mr and Mrs McPhillips for personal injuries. In the initial property proceedings Mrs McPhillips was joined as third party. Ultimately the decision which Barbour DCJ had to make was whether Miss Manning or Mrs McPhillips was negligent, and whether the other was guilty of contributory negligence. Barbour CJ found that Miss Manning was negligent and that Mrs McPhillips had not been guilty of contributory negligence. He accordingly entered judgment in favour of Mr McPhillips for $25,375 property damage and found a verdict against Miss Manning in her claim for personal injuries. Those findings are challenged by this appeal. The motor vehicle collision occurred on the Friday Hut Road, Booklet near Ballina. The road upon which the collision occurred was a single lane strip road with gravel verges. It was a common ground that the bitumen surface of the strip road was not sufficiently wide for two vehicles to pass. It was also common ground that the appropriate course for vehicles approaching each other was to each move to their left so that each retained the driver's side wheels on the bitumen but each would have the passenger side wheels on the gravel verge. The vehicles being driven by Mr McPhillips and Miss Manning approached each other. Mrs McPhillips' case was that she was travelling at something less than 60 kilometres per hour and saw the other vehicle approaching. She was driving up a slight to moderate incline and changed down to third gear. As she came around a curve to the left she saw the other vehicle approximately 200 yards away. She moved to the left taking her two rear side wheels off the bitumen and on to the gravel verge. She went as far as possible to the left until the wheels of her vehicle were within a few inches of an embankment on the left of the curve. Her evidence was that the approaching vehicle did not itself move to the left but maintained its course down the centre of the bitumen with all four wheels on the bitumen. Ultimately Mrs McPhillips realised that the other vehicle was not going to move to its left so that a collision was inevitable. In the "agony of the moment", she swerved sharply to the right endeavouring to pass across in front of the oncoming vehicle to available space on the wider opposite verge, hoping to pass on the near side of the oncoming vehicle driven by Miss Manning. She was too late and the front driver's side of her vehicle struck the centre and passenger side of the oncoming vehicle. 2 UNREPORTED JUDGMENTS Miss Manning's account was that Mrs McPhillips' vehicle was coming towards her at some speed and seemed to drift across to its incorrect side as it rounded the curve to the left, such that its driver's side wheels were on the gravel on its right with the passenger side wheels on the bitumen. Miss Manning thought that the oncoming vehicle would correct itself and thus took no evasive action until very late when she swerved to the left. Barbour DCJ accepted the evidence of Mrs McPhillips. He found that Miss Manning was travelling at a speed some where in the order of 70 kilometres per hour downhill and had failed to apply her brakes. The sole cause of the accident was found to be the negligence of Miss Manning who was travelling "too fast in all the circumstances and was not keeping a proper and adequate lookout". Had Miss Manning taken prompt evasive action and braked, Barbour DCJ found that "the situation would have been vastly different. She had failed to take the steps which a prudent driver should have taken in the circumstances". The major ground of appeal is that Barbour DCJ erred in failing to consider the evidence of Wayne Peter Roberts. Mr Roberts was a passenger in the vehicle being driven by Miss Manning. He was reading a paper in the vehicle and did not look up until a moment before the collision. His evidence was thus of little assistance regarding the circumstances prior to the incident immediately before impact for he only saw the oncoming vehicle driven by Mrs McPhillips when it was 10 to 15 metres away. That is at the time when the agony of the moment situation had arisen. Reference was made in submissions to the decision in Mifsud v Campbell! in particular to the passage in the judgment of Samuels JA at 728. It is clear from the passage in the middle of the page where his Honour said: "...Similarly in my opinion, it is an incident of judicial duty for the Judge to consider all the evidence in the case. It is plainly unnecessary for a Judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made may depend, as the duty to give reasons does, upon the circumstances of the individual case." Thus one must look at the particular circumstances to any case. Emphasis was placed, however, by counsel for the appellant upon the following passage. His Honour there said: "Accordingly a failure to refer to some of the evidence does not necessarily whenever it occurs, indicate that the Judge has failed to discharge the duty which rests upon him or her. However, for a Judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the Judge - as the defendant's denial of having consumed alcohol - may promote a sense of grievance in the adversary and create a litigant who is not only 'disappointed' but "disturbed'...." That passage was said to be applicable in the instant case because by failing to refer to the evidence of Mr Roberts it was said that his Honour may not have had regard to evidence which supported the evidence of Miss Manning that in fact although she was driving down the bitumen the other vehicle driven by Mrs McPhillips had in fact drifted across to its incorrect side. I do not think that is so. The evidence given by Mr Roberts no matter which way one reads it does not seem to me to assist the appellant's case. At 66 of the appeal book the substance of his evidence appears. It is clear that he did not look up from his paper until a 1. (1990) 21 NSWLR 725 URJ MANNING v McPHILLIP (Sheller JA) 3 split second before the accident. He did not say, as was put in submissions to us, that he saw the vehicle driven by Mrs McPhillips drift over to the right hand side of the road. What he said was that he "saw a large white vehicle hedging towards us on our side of the road". It seems clear to me that bearing in mind his evidence that he saw the vehicle only when it was approximately 10 or 15 metres away that what he saw was the vehicle taking action of an evasive nature when it occurred in the agony of the moment. In those circumstances there does not seem to me to be any finding of fact made by the trial Judge in respect of which it can properly be said that there was evidence contrary to that finding of fact accepted by the trial Judge to which no reference was made. Accordingly, it seems to me that having regard to all of the circumstances there could be no disquiet such as was referred to in Misfud v Campbell? in this instance. There is a further point to be made. In so far as Mr Roberts' evidence is of assistance at all it makes clear that the evidence given by Mr McPhillips that Miss Manning did not diverge from her course down the bitumen, that is did not diverge to the left as one might have expected until immediately before the impact, was correct. It seems to me on a fair reading of Mr Roberts' evidence that in truth he supports the account of the accident given by Mrs McPhillips. In this instance it seems to me appropriate to read the judgment of Barbour DCJ in the sense that his Honour was obviously aware of the two competing cases; one was that the vehicle driven by Miss Manning did not diverge to the left as it should have, the other was that the vehicle driven by Mrs McPhillips drifted to the right. It is clear that his Honour was fully seised of that conflict between the two cases and addressed those issues reaching findings which were unfavourable to Miss Manning. Additional submissions were put that the damage to the vehicles and the directions in which the vehicles and their wheels were pointing after the accident supported the account advanced by Miss Manning, the negligence alleged being that of Mrs McPhillips. In my opinion that is not so. The vehicles were involved in an almost complete head on collision and were approaching each other, on the Judge's findings, at approximately 120 kilometres per hour. There was no expert evidence in relation to the damage to the vehicle or the effects which they would have suffered from being involved in such a collision. It is undoubted that the ultimate location of the vehicles and their condition resulted from the collision in which in order vainly to endeavour to avoid the inevitable accident, Mrs McPhillips sought the safety of her verge to the right, she being unable to gain any further safety by moving to the left in the circumstances where Miss Manning drove her vehicle down the centre of the road, thus producing an inevitable head on collision. In my opinion the appeal should be dismissed with costs. Kirby P. I agree. Sheller JA I also agree. Kirby P: The order of the Court is the appeal is dismissed. The appellant must pay the respondent's costs. 2. (supra).