PHUONG v BERGHOFER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, SHELLER and COLE JJA 14 November 1995, 22 November 1995 [1995] NSWCA 369 MOTOR VEHICLE ACCIDENT — no question of principle. Priestley JA I agree with Sheller JA and Cole JA and the orders proposed by Cole JA. Sheller JA The plaintiff, Vinh Phuong, appeals from a verdict entered in favour of the defendant, Brian Berghofer, by her Honour Judge Karpin on 9 April 1992. At approximately 7.30 pm on 16 November 1982 the plaintiff was driving his motor vehicle in a westerly direction along Arthur Street, Lidcombe when it was struck on the plaintiff s side of the road by a vehicle the defendant was driving in the opposite easterly direction. As a result the plaintiff suffered injury. In her judgment her Honour was at pains to describe the facts as she found them and to deal with the various particulars of negligence the plaintiff pleaded. Her Honour concluded that the case was "one of those unfortunate cases in which blame can be laid at no one's door thus leaving an injured plaintiff without recourse to damages." If a motor vehicle leaves its correct side of the road, as the defendant's did, and collides with an oncoming vehicle, the inference is open that the driver of the vehicle is guilty of negligence, in the absence of an explanation that the vehicle's departure from its correct side of the road was for reasons other than the defendant's negligence; Government Insurance Office of New South Wales v Fredrichberg (1968) 118 CLR 403 at 413 and 421. In the present case the explanation her Honour accepted was that at some point not far distant from the point of impact the defendant's car struck a "sheet of water" which the defendant, while driving, did not see and the defendant in consequence lost control. Her Honour found that the defendant was travelling at 20 kilometres per hour, a not unreasonable speed in all the circumstances. She found no evidence to support a contention that he was not making proper observation of the road and traffic conditions or that, if he had been travelling at a slower speed, the accident might not have occurred. Her Honour described the approach of the two vehicles to each other in the following way. She said that the plaintiff was driving west along Arthur Street where there was one lane of traffic travelling in each direction, and approaching a sharp bend on the road when the accident occurred. The road was wet and it was raining. The defendant was travelling east along Arthur Street, a street with which he was familiar as he took that route to work. His vehicle was new. The tyres were in good condition. "As he travelled from the traffic lights towards the sharp bend he was travelling at approximately 20 km/h. He travelled through the bend. Emerging from the bend and approximately 5 to 10 yards from it he lost control of the car. It swerved suddenly to the right side of the road and about 20 yards from the bend, collided with the plaintiff s vehicle" 2 UNREPORTED JUDGMENTS The road had a distinct camber sloping from the defendant's left to right. According to her Honour: "After the impact both drivers left their vehicles. The defendant went back to inspect the road surface in the vicinity of the place where he lost control of his vehicle. There he observed a sheet of water rushing from the left to the right side of the road. The defendant's evidence was persuasive that the water running across the road at that point caused him to lose control of his vehicle and thus to collide with the vehicle driven by the plaintiff. It is argued on behalf of the defendant that whilst the water possibly, and most probably was, the factor which caused the defendant to lose control of his vehicle, there is no evidence that this loss of control was brought about by any negligent act or omission on the part of the defendant." Mr Holmes QC, who appeared for the appellant, centred his case on her Honour's findings that the defendant went back to inspect the road in the vicinity of the place where he lost control of his vehicle and that there he observed a sheet of water rushing from the left to the right side of the road. There is no evidence that the defendant went to inspect the road surface in the vicinity of the place where he lost control. The defendant did give evidence that after he got out of his car he noticed "a whole heap of water running across the road from one side of the road to the other". He said that was twenty yards "from the bend". As her Honour found and the defendant said, he lost control approximately five to ten yards from the bend. Accordingly there must be some doubt about her Honour's finding that the loss of control was due to the defendant's vehicle striking "a sheet of water". According to his evidence, after he left his vehicle, the defendant said to the plaintiff "I'm sorry about that, are you alright?" A little later in his evidence he said: "Q. Your concern was to see if he was all right, that was what was on your mind? A. Checking the damage and seeing - Q. It was quite a reasonable concern, but that is what was occupying your mind, to see if he was injured? A. It wasn't the whole thing that was occupying my mind. I was looking for damage, looking to see if he was all right because it was my fault, the accident, just the whole thing. Q. You readily acknowledge that the accident was your whole fault? A. Yes, I lost control of my car. RE-EXAMINATION BENNETT: Q. Why do you say it was your fault because you lost control? A. I was driving down the road and I didn't know that this water was coming across the road until I looked afterwards where I was. My car veered to the other side of the road without me being able to straighten it up. So therefore, I was driving in a car that was on the wrong side of the road. Q. That is the basis for your view, the fact that you have struck the water? A. Yes, I hit the water. Being a front wheel drive car, there was no steering. There was nothing I could do to avoid this accident." Nowhere in her judgment did her Honour refer to this evidence. The importance of admissions as material from which a court may find a question of law, a question of fact or a question being a conclusion from a mixture of fact and law is discussed by Handley JA in Pitcher v Langford (1991) 23 NSWLR 142 at 160. URJ PHUONG v BERGHOFER (Cole JA) 3 Tendered in evidence were two plans, one drawn by the plaintiff which became exhibit A and the other in the document P4, which became exhibit B. Both show the collision occurring in a curved stretch of road. Exhibit A shows the defendant's vehicle in a left hand curve when it began to move onto the right hand side of the road. The second in the P4 document shows the defendant's vehicle in a right hand curve, but plainly this is an error. In the P4 sketch plan the plaintiff's and defendant's vehicle are transposed. If this is corrected the defendant's vehicle is again shown as being in the course of a left hand bend when it began to move onto the right hand side of the road. The evidence was that before the accident the defendant was driving on the left hand side of the road as it curved to the left when he lost control and went over onto the plaintiff's side of the road. There is no persuasive evidence that the defendant's vehicle struck a sheet of water (which was not a phrase the defendant used in his evidence) or a heap of water at or before the time the defendant said he lost control. The defendant acknowledged that he was at fault. All this, in my opinion, adds up to a compelling case for the inference that the defendant lost control of his vehicle as a result of his negligent driving and that this caused the collision. Her Honour said that having considered the evidence and "with some reluctance" she came to the view that the plaintiff had failed on the threshold question of liability. I think her Honour's conclusion demonstrates a misunderstanding of or failure to take account of some of the evidence and accordingly the appeal must be allowed. The parties agreed that the verdict for the plaintiff should be $24,001 as at 9 April 1992, the date of judgment. I agree with the orders Cole JA proposes. Cole JA The appellant, Vinh Phoung, was injured in a motor vehicle accident which occurred at about 7.30pm on 16 November 1982. The appellant was driving towards Lidcombe along Arthur Street, Auburn. It either was or had been raining. Arthur Street turns to the right in the direction of travel of the appellant in a sharp right hand turn. The respondent, Brian Berghofer, was driving a three months old Laser motor vehicle in good condition in the opposite direction. He had been stationary at traffic lights. Upon the lights changing he drove straight ahead for "about 20 yards" over a railway bridge and then commenced "a sharp turn to the left" which was "close to a right angle'"!. As he approached that bend he was travelling at approximately 20 kilometres per hour. He said: A. "T turned to the left to go, continue on my way to work. As I got down the street approximately 5, 10 yards, the car suddenly swerved to the (right) hand side of the road and I collided with the oncoming car. Q. "In relation to the bend in the roadway, when was it that your car started to slide?" A. "As I was coming out of the bend to straighten up. I was out of the bend." Q. "Is it a front wheel drive or rear wheel drive." A. "Front wheel drive." Q. "Did you see what it was that caused your vehicle to slide?" A. "Not at the time. After I got out of the car I noticed a whole heap of water running across the road from one side of the road to other, the build up of the water, from the left hand side to the right hand side of the road." 1. Appeal Book, at 37. 4 UNREPORTED JUDGMENTS "Are you able to tell us, is the roadway level at that point?" "No. it cambers down, away." "You are indicating with your hand/" "Down the hill, the roadway goes down the hill and cambers to the right." "You travelled downhill to the bend?' . "To another bend, yes. From the traffic lights you go over a railway bridge, and then the bend starts and you go downhill to go underneath another railway line." Q. "This flow of water across the roadway, where in relation to the bend was it located?" A. "From the bend, 20 yards." Q. "From the bend?" A. "From the bend." Q. "What speed were you travelling at the time you reached that point where your vehicle started to slide?" A. "As I was just coming out of the bend it would have been 20 to 25 kilometres maximum. I drive that road all the time." Q. "Did you see that water on the roadway before the slide occurred?" A "No.2 In cross-examination Mr Berghofer said that after the accident his first words to the appellant were: "T am sorry about that, are you alright?" Later he gave the following evidence: Q. "It was quite a reasonable concern, but that is what was occupying your mind, to see if he was injured?" A. "Tt wasn't the whole thing that was occupying my mind. I was looking for damage, looking to see if he was all right because it was my fault, the accident,. just the whole thing." Q. "You readily acknowledge that the accident was your whole fault?" A. "Yes, I lost control of my car." In re-examination he gave the following evidence: Q. "Why do you say it was your fault because you lost control?" A. "I was driving down the road and I didn't know that this water was coming across the road until I looked afterwards where I was. My car veered to the other side of the road without me being able to straighten it up. So therefore, I was driving in a car that was on the wrong side of the road. " Q. "That is the basis for your view, the fact that you have struck the water?" A. "Yes, I hit the water. Being a front wheel drive, there was no steering. There was nothing I could do to avoid this accident."'3 Notwithstanding this admission of fault, and of failure to see on the roadway the water which Mr Berghofer said caused him to lose control of his motor vehicle, Karpin DCJ held that negligence had not been established. Her Honour's view was summarised as follows: "Looked at objectively it is difficult to find that the conduct of the defendant in the management of his vehicle, fell below the standard expected of the reasonable user of the road. >OrPO>O 2. Appeal Book, at 37-38. 3. Appeal Book, at 41 URJ PHUONG v BERGHOFER (Cole JA) 5 There is no evidence to suggest that this was an unreasonable speed in the circumstances other than of course that the suggestion of the fact that the defendant lost control of the vehicle speaks for itself. The defendant was familiar with the road, he was not asked whether he had travelled over the road in similar conditions or whether he was aware of excess water travelling across the road in the area in which he came upon it. Indeed the defendant's evidence was that shortly after the impact he walked back up the road to inspect it for signs of what may have caused him to lose control of the vehicle, he then saw the water. There is no suggestion that he had previously been aware of excess water travelling across the road at this point."4 In my opinion her Honour was in error. It was clear from the respondent's evidence that he did not see a heavy stream of water flowing across the road, which, he said, caused him to lose control. Travelling as he said he was at about 20 kilometres per hour and keeping a proper lookout he should have seen that water. Her Honour's exculpatory comment that "this failure to see the water must be looked at in the context of the prevailing conditions. He emerged from a sharp bend on a wet road in raining conditions at night'> supports negligence rather than negates it. The respondent knew he was to make a sharp left hand bend with the road having a steep camber to the right in wet conditions at night. That obliged the driver to keep a sharp lookout for water flowing across the road, and to travel at such speed as would enable him to cope with such an occurrence. Similarly, her Honour's comment that "raining conditions and the reflective nature of headlights no doubt added to the difficulties experienced by him in properly observing the road surface", emphasises that need for additional greater care in the circumstances. That care was absent, as the respondent admitted. Further, there was no evidence of any difficulty in seeing the water on the roadway, if in fact it caused him to lose control. Her Honour held that Mr Berghofer "went back to inspect the road surface where he lost control of his vehicle. There he observed a sheet of water rushing across from the left side to the right side of the road."7 There was no evidence that he 'went back" to see where he lost control. The evidence was that "after he got out of the car I noticed a whole heap of water'".8 Further, his evidence was that he lost control "5, 10 yards" coming out of the bend, yet the "flow of water" was 20 yards from the bend.° If that evidence be accepted, he lost control of the vehicle prior to striking the flow of water, and it was not the cause of the accident. On two occasions the respondent said that he started to slide "as I was coming out of the bend"!0. This suggests excessive speed as being the cause of the accident, not the striking of a flow of water. It follows, in my view, that the appeal must be upheld. The trial judge assessed the damages which she would have awarded in the sum of $18,000 for general damages and $241 for past economic loss. Those findings have been accepted by the appellant. The general damages assessment is not appellably too high. Interest Appeal book, at 143U-144V Appeal Book, at 141K Appeal Book, at 141U-141V Appeal Book, at 140T, 144R Appeal Book, at 37R Appeal Book, at 37Y-38E Appeal Book, at 37P-38F, compare at 37L SeOPNawns 6 UNREPORTED JUDGMENTS on general damages was agreed at $5,760. Thus there should be a verdict in favour of the appellant in the sum of $24,001. The formal orders of the Court are: 5 1. Appeal upheld. 2. Judgment and orders of Karpin DCJ set aside. 3. In lieu thereof judgment for the appellant in the sum of $24,001, such judgment to date from 9 April 1992. 4. The respondent is to pay the appellant's costs of the trial and of this 10 appeal but is to have, if qualified, a certificate pursuant to the Suitor's Fund Act in respect of the costs of the trial. COUNSEL: 15 Appellant: M Holmes QC/R Goodridge Respondent: DJ Russell SOLICITORS: 20.~— Appellant: Firths Respondent: GM Meadows