COHEN v REID SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL HANDLEY, SHELLER and COLE JJA 18 June 1996 [1996] NSWCA 110 NEGLIGENCE — personal injury — motor vehicle accident — duty of care — credibility of witness Sheller JA. This is an appeal by the plaintiff Ms Marie Cohen from a decision of his Honour Judge Craigie QC of 16 March 1994. The appellant claimed to recover damages from the respondent, Ms Carol Reid, for injuries suffered at approximately 8.30 am on 27 March 1990 in the grounds of Redfern Public School. The appellant averred that a vehicle the respondent was driving into a parking space in the school grounds collided with the appellant's right hand. Seven particulars of negligence were given. In his judgment, Judge Craigie dealt with each of those grounds and found none of them had been made out. His Honour held that there should be a verdict for the respondent/defendant. He said that he had not been satisfied on the balance ofprobabilities of the existence of any act of negligence on the part of the defendant in her duty of care to the plaintiff in the use of her motor vehicle. Two different accounts were given of the incident which gave rise to this claim by the only people who saw it and gave evidence; the plaintiff and the defendant. The plaintiff's version was set out in his Honour's judgment at p 9: There was evidence given by the plaintiff that she was in the yard of the playground of the Redfern Public School at about twenty past eight on 27 March 1990. She was with Damien Mains and Damien had a black eye which she thought had just happened. She examined Damien's black eye. She had a bag and she put and rested it on her leg. She had a shoulder bag on the left side. Having examined Damien's eye, she saw the front of the car about ten feet away. She recognised the driver as Carol Reid, the defendant, she being a teacher at the school. Before she saw the car, she said she did not hear anything. She bent down and grabbed her bag. The car was still moving. She felt then her hand going around. As the car came down towards her, she felt her hand turned, and this very description I have already recited (hand twisted), and eventually she said that the car and her hand collided. Then she saw the car parked in the parking area. The driver got out and went inside and she put her bag in her left hand, and she did not know where Damien went to. His Honour also set out the defendant's version at p 13 of his judgment. Significantly, his Honour said that at the time of the alleged collision, it was common ground that the plaintiff was at the side of the defendant's vehicle, not in front of it, before contact was made. The defendant's version was that the plaintiff put her hands on her headlight area over the front or left headlight and 'manoeuvred' — or she may have used the word 'spun'. According to either version, the plaintiffs hand came into contact with the defendant's motor vehicle. His Honour accepted the defendant's version that the plaintiff movedout of the way of the vehicle and moved towards the vehicle and placed her two hands on it. 2 UNREPORTED JUDGMENTS His Honour found that the defendant was not guilty of any failure to stop because the plaintiff had moved out of the way and did not present a risk of collision, and that the situation was not one in which the defendant was required to take evasive action. The defendant in driving at about five kilometres an hour was not, in the circumstances, driving at an excessive speed. His Honour said that she had her foot on the brake and was crawling and found that the defendant sounded her horn and kept a proper look out, having observed both the plaintiff and the boy, Damien. His Honour finally found that the defendant had not failed to slow down and brake soon enough and had not failed to heed the risk of driving a vehicle in the school grounds without proper regard to the safety of pedestrians. Mr Conomos, who appeared for the appellant, relied only on grounds 1, 2, 3 and 5 of the notice of appeal. Under those heads he made the following points. First, early in his judgment, Judge Craigie dealt with various criticisms that had been made on the plaintiff's evidence which went to her credit. Having said that a question mark hung over the plaintiff's reliability by reason of her evading some questions, his Honour continued: What is probably more significant in the plaintiff's evidence, was evidence she gave which directed to the state of things in July 1992, particularly about her wearing particular clothing and her evidence as to the extent of her disability with the right wrist during that particulartime. She said that she wore a glove and she made no use of her right hand. His Honour then referred to a video film which was shown to this Court. That film was taken on 7 and 8 July 1992. It showed the appellant using her right hand in unlocking and opening and closing the door of a motor vehicle without any apparent limitation of movement. His Honour said: It is suggested that that film demonstrated the falsity of the plaintiff's evidence as to these particular episodes on the 7 and 8 July. Having viewed the film on a number of occasions, I am inclined to agree with that submission and not accept the plaintiff's evidence on this particular point. Mr Conomos submitted that his Honour's assertion in his judgment, that the plaintiff had said that in July 1992: 'She made no use of her right hand' was wrong. In her evidence in chief, which was given on 14 March 1994, the plaintiff said that she got pain in her right wrist and that she had less strength in her right wrist compared with before the accident. She said that when she carried something heavy these days, she carried it with the left hand, whereas before the accident, she would have used her right hand. She said in her evidence in chief that she had problems in sweeping, mopping and hanging out clothes. She said she used a splint from time to time and she wore a glove from time to time, generally in winter. This evidence was taken up by Mr Graves, who appeared for the respondent in cross examination, no doubt with the video film in mind. In the course of her cross examination, the plaintiff said that shesuffered sensations of coldness. She was asked about whether she had told Dr Cumming that she believed her wrist was going to continue to improve when she saw Dr Cumming in about May 1992, and she said, no. She then gave the following evidence: Q. An the fact is that your wrist did continue to improve, didn't it? A. No. Q. How was your wrist in July 1992, winter of 1992, do you remember? A. I wore a glove. Q. Did you? A. Yes. URJ COHEN v REID (Sheller JA) 3 Q. You wore a glove during the winter months of 1992, did you? A. Yes. A little further down in the course of cross examination she said in that winter she wore a glove and that she put the glove on her right hand because it was playing up. She was then asked: 'As at July 1992, Mrs Cohen, there was nothing whatsoever wrong with your right hand such as to affect you performing any function with it at all, was there?' She is recorded as answering: 'No.' Question then followed: "Did you say no?' His Honour said: 'She said no.' Mr Graves then continued the cross examination: Q. As at the 7 July 1992, you used your right arm and hand as you would have used it before this incident with Mrs Reid's motor car, isn't that correct? A. No it's not correct. Q. Isn't it the fact that getting into your motor car as at July 1992 to unlock the car with a key, you used your right hand? A. Left hand. Mr Graves, who was, of course, the cross examiner, submitted to us that the answer to the question that began: 'As at July 1992?' ""No,', was in factintended to convey: 'No, that's not right.' In my opinion, looking at the context of the cross examination, that submission is correct. Further on in the cross examination, the plaintiff was asked whether she continued sweeping, mopping, hanging out clothes, to which she said: 'Sometimes but those stopped.' She was asked 'You said to his Honour that you had difficulty in performing each of these tasks. Let me ask you again. At the present time these days you use a broom to sweep about your house, don't you?' Answer: 'No.' "And you use a mop to mop about your house, don't you?' Answer: 'No.' It is right to say that when his Honour said that the plaintiff had said that she made no use of her right hand, that was not completely accurate. What his Honour said was wrong. In truth, it seems to me that he should have expressed it by saying: 'The plaintiff said she was limited in the use of her right hand.' However, it seems to me that even if one states the plaintiffs evidence in that accurate fashion, there was no doubt that the video film tended to demonstrate that the plaintiff's evidence about her condition in July 1992 in respect of the use of her right hand was not true. The consequence, it seems to me, in terms of her credit, is the same as that represented by the conclusion to which his Honour came. Accordingly, in my opinion, his Honour's error in his statement of the plaintiff's evidence is of no significance. I reject the appellant's argument that his Honour drew too much from the video, thereby wrongly treating the appellant's credit as eroded by it. The second matter to which Mr Conomos referred is a passage in the judgment that follows his Honour's reference to the report of Professor Cumming. His Honour referred to that and a report of Dr Pillemer and continued: 'I pause to comment there that no one pointed out to me any significance of that conclusion.' After referring to Dr Pillemer's conclusion, his Honour said: 'But it seems to me that there is a suspicion that Professor Cumming was pointing to the condition of the plaintiff's right wrist as being something preceding the incident on 27 March 1990.' It is submitted, and there seems to be no doubt about this, that it was not an issue at the trial that the plaintiff's condition with respect to her right hand, was the consequence of some pre-accident injury or other condition. To that extent what his Honour said was irrelevant to the matter in hand. The appellant complains that his Honour seems to have entertained a suspicion about the injury in respect about which there was no issue. However, having made the reference to something preceding the incident, his Honour went on to say: 'However, that 4 UNREPORTED JUDGMENTS is not the point at this stage to which I wish to refer but to indicate some of the difficulties that I have had in this particular case.' I do not think, having read his Honour's judgment carefully, that the reference his Honour made to this possibility, played any part in the ultimate conclusion to which he arrived. The third matter in the judgment to which we were taken was this. His Honour said: 'I find some difficulty in deciding what actually happened in the incidentas described by the plaintiff. For example, Mr Lidden, of counsel, for the plaintiff, conceded that he needed three attempts to get the plaintiff to say in her evidence in chief that the defendant's vehicle came into contact with any part of her body.' It was suggested that this reference was unfair to the plaintiff and not a concession that was borne out by the transcript. In my opinion, it is impossible to say from looking at the transcript that the concession made by counsel for the plaintiff, was wrongly made. Indeed, if anything, the part of the transcript to which we were taken, at 146 of the appeal book, supports the concession. In my opinion there is nothing to be derived from this statement in his Honour's judgment other than quite properly the concession was a matter which he took into account in his overall assessment of the case. The matters to which I have referred up to this point, cover all the matters which Mr Conomos raised under the four remaining grounds of appeal upon which he relied. However, there was a final matter of submission which was put under the heading "Generally". This consisted of six propositions which were set out in the written submissions: (i) The defendant was about ten feet from the plaintiff when she sounded the horn on the second occasion; (ii) The defendant continued into the parking spot; (iii) At no time did the defendant stop the motor vehicle and allow the plaintiff to move;(iv) The defendant was uncertain whether she would have struck the plaintiff had the plaintiff not moved; (v) It is submitted that a "reasonable driver" in that situation would have stopped the motor vehicle and not proceeded forward; (vi) There is no doubt that the plaintiff suffered an injury to her right wrist. The thrust of the submission was that the defendant taking appropriate care as a reasonable driver, accepting the defendant's version of what occurred, should have stopped the motor vehicle and not proceeded forward before the point or time at which contact was made with the plaintiff's right hand. However, it seems to me that this submission founders on his Honour's acceptance of the fact that the plaintiff had moved out of the way of the defendant's vehicle and then had moved to put her hands over the front or left headlight. That conclusion seems to me to deny the appellant any ground of appeal based upon the respondent's failure to stop her vehicle. In other words, in the circumstances I do not think that this submission demonstrates any negligence by the respondent. In my opinion, all the matters relied upon by Mr Conomos in his submissions in support of the appeal, fail as grounds of appeal. It follows that the appeal should be dismissed with costs. Handley JA. I agree. Cole JA. I also agree. Handley JA. The order of the Court therefore is appeal dismissed with costs. Orders accordingly. URJ COHEN v REID (Handley JA) Counsel for the appellant: JJ Conomos Solicitors for the appellant: Steward Cuddy and Mockler Counsel for the respondent: JJ Graves Solicitors for the respondent: Adelsteins