SZMYTA v JEAN-LOUIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER, POWELL and COLE JJA 8 February 1995, 8 February 1995 [1995] NSWCA 466 Sheller JA The court is in a position to give judgment now and I will ask Cole J to give the first judgment. Cole J The appellant Henry Szmytra was injured when he was struck by a motor vehicle at approximately 1.10pm on 10 February 1982. He was struck by a vehicle, being a taxicab, being driven by the first defendant/first respondent, which was owned by the second defendant/second respondent. The accounts given of the accident are in short compass. Briefly put, the appellant asserted that he was walking south on the footpath on the eastern side of George Street between Martin Place and King Street. He wished to cross to the western side of George Street. He said that he glanced to the right, having his back towards Martin Place, in a northerly direction along George Street. He did not see any vehicle. He said he stepped off the kerb, started to cross and was struck by the taxi driven by the first respondent. He did not see that vehicle. According to the appellant he was struck approximately halfway to the centreline of George Street; that is past the first lane and somewhere in the second lane, there being four lanes in George Street. The account given by the taxidriver was a little different. He was driving south in the second lane in George Street. He was travelling at fifteen kilometres per hour approximately. He said that the appellant "just sort of galloped across the road right in front of me." He tooted, swerved towards the kerb and braked and he hit the appellant apparently a slight blow with the front of the driver's side of his vehicle. Subsequently the first respondent drove the appellant to hospital. Whilst he was doing so the appellant said to him, "I am sorry, it was my fault." The learned trial judge accepted the evidence of the respondent taxidriver. His Honour said: "T was quite unimpressed with the evidence of the plaintiff and I accept that of the first defendant and prefer it to the evidence the plaintiff gave where there is a conflict, with the exception of the fact that I think the plaintiff is probably right when he said the point of impact was about the centre point between the kerb and the centreline of the road." That resolved a conflict in the evidence where the taxidriver had said the accident occurred towards the centreline of George Street, that is towards the western side of the second lane, whereas the appellant had said that it occurred more towards the edge of the first lane. It is undoubted, as his Honour indicated, that a sudden emergency was created. His Honour found that the respondent had tried to avoid the collision by sounding his horn, applying his brakes and swerving to the left. Four allegations of negligence were made by the appellant before the learned trial judge. The first was there was a failure to keep a proper lookout. The second was that the respondent was driving at excessive speed in the circumstances. The third was that there was a failure to heed the presence of the plaintiff on the 2 UNREPORTED JUDGMENTS roadway and the fourth was a failure to slow down or stop or swerve to avoid a collision when aware of the plaintiffs presence on the roadway. A fifth allegation of negligence, about which there was no evidence, was failure to ensure that the braking and the steering systems of the vehicle were in proper working order. It is clear from the evidence accepted by his Honour that driving at a speed of fifteen kilometres an hour was not driving at excessive speed. It is equally clear that having found that the respondent taxidriver sounded his horn, applied his brakes and swerved to the left, that the allegation that the respondent failed to slow down or stop or swerve to avoid a collision when aware of the plaintiff's presence on the roadway could not be made out. The question was whether there was in truth a failure to keep a lookout. Having accepted the evidence of the respondent that he was keeping a proper lookout, that a sudden emergency was created and he took all necessary or proper or available steps, the finding of his Honour that the first respondent had not been guilty of negligence was in my view the correct finding. Whether that be so or not in order for this court to disturb the finding of his Honour it would be necessary to show, in accordance with the principles enunciated in Abalos and more recently in Devries and Anor v Australian National Railways Commission and Anor 177 CLR 472 at 479 that the finding of the learned trial judge, depending as it did to a substantial degree upon the credibility of witnesses, were obviously defective in that his Honour had failed to use or palpably misused his advantage as a trial judge or acted on evidence inconsistent with the facts incontrovertibly established by the evidence, or which were glaringly improbable. In a careful argument it was submitted to this court that the learned trial judge, in making his assessment in relation to credit of the plaintiff, as compared with the credit of the first respondent, had failed to take regard to the circumstance that the appellant had suffered some form of brain damage and that fact of brain damage should have been to his Honour's mind in assessing the credibility of the appellant. It was put that that factor should have been had regard to by the trial judge in his determination of preference on credit if that preference was based on demeanour. The difficulty with the proposition is that it was not submitted to his Honour that the appellant's evidence should either have been rejected or qualified or regarded in any particular way in consequence of the asserted brain damage. Secondly, it was put that this court should be persuaded that the trial judge should have accepted the appellant instead of the respondent on the basis that the respondent restructured his account of the accident, and that submission was supported by an analysis of evidence which it was said showed alleged internal inconsistencies. In my view whilst the matters placed before this court may have shown that there were certain inconsistencies in the evidence of the respondent, just as there were some inconsistencies in the evidence of the appellant, that does not mean that this court is entitled, in accordance with the principles enunciated in Devries (supra), to set aside the findings of credit reached by the trial judge or to substitute a different finding of fact in relation to such matters. In relation to the third submission, namely, that the judge palpably misused his advantageous position as a trial judge in assessing the credit of the respondent and appellant, there is no evidence which would suggest that that was so. It was also put that the learned trial judge did not give adequate reasons for his preference for the finding that the respondent's account of the accident was to be preferred to that of the appellant. In my view a reading of the judgment makes clear the basis upon which the learned trial judge preferred the evidence of the URJ SZMYTA v JEAN-LOUIS (Powell JA) 3 respondent. Shortly put the learned trial judge had before him two conflicting accounts. He preferred the evidence of that given by the respondent. That evidence was supported by an admission of liability by the appellant and it has not been shown that there are any findings of his Honour which are so in conflict with any empirical fact that there is justification interfering with the decision of the court below. I propose the appeal be dismissed with costs. Sheller JA: I agree. Powell JA I also agree. Sheller JA: The appeal is dismissed with costs. (Mr Shaw made an application for costs on the motion to vacate the hearing date and the motion to adduce fresh evidence) Sheller JA: The costs to be paid by the appellant to the respondent of the appeal would include the costs of the notice of motion to lead further evidence and the costs of the application that was made yesterday before me to vacate the hearing of the appeal today. Counsel for the Appellant: AS Morrison SC/DJ Hooke Instructed by: GH Healey and Co Counsel for the Respondent: HG Shore Instructed by: GM Meadows