CARCELLER v ANDREWS and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 17 June 1996, 17 June 1996 [1996] NSWCA 91 Negligent driving — collision with police vehicle — question whether siren and lights were activated — reg80 of Motor Traffic Act Clarke JA This is an appeal concerning an accident which occurred as long ago as 9 July 1979. The appellant was the plaintiff in the District Court claiming damages in respect of the allegedly negligent driving of the respondent. According to the appellant, that negligence lead to a collision between a vehicle driven by the appellant and a vehicle driven by the respondent at the intersection of Lamb Street and Elizabeth Street, Ashfield, in the early hours of the morning. His Honour Judge McDevitt, at the conclusion of a lengthy trial, accepted the evidence of the respondent, and in those circumstances concluded that the appellant had failed to make out his case. There were a number of issues between the parties, but once the trial Judge accepted the respondent's evidence, as it seems to me he did, the issues became somewhat confined. As I read the Judgment under appeal, counsel for the appellant developed submissions at the trial on the assumption that the respondent's evidence was accepted contending that the conduct of the respondent, in the light of Reg80(1), Reg80(2), and Reg132 of the Regulations under the Motor Traffic Act was negligent. It is common ground that that submission was to an extent misconceived, in that the Regulations relied upon by the appellant were not in force at the relevant date. There was in force another Reg80 to which I will refer in a moment. What does emerge is that the substantial attack made at the trial based upon the Regulations, and rejected by His Honour, cannot be supported on the appeal. The facts are within a short compass, and can conveniently be dealt with at this stage. The appellant was a police officer who was driving a vehicle in which there were also two other police officers, Constable Betteridge and Probationary Constable Jiggins. At the time of trial both the passengers had apparently left the police force. The appellant was, at the critical time, pursuing another vehicle west in Elizabeth Street and, although the appellant himself was unable to say the precise colour of the lights facing him at the time he entered the intersection with Lamb Street, Probationary Constable Jiggins gave evidence in support of the proposition that they were green. According to the statement of Senior Constable Betteridge who was not called to give evidence, the blue revolving light on the top of the police vehicle, and the alternating horn, was activated about 100 metres from the intersection, and at a time when the lights were green; and the driver drove the vehicle into the intersection with the lights and horn operating. 2 UNREPORTED JUDGMENTS It was the appellant's case that in doing so, that is in driving the vehicle into the intersection while pursuing the other vehicle, with the light on and the horn sounding, the appellant was acting reasonably, and more to the point, that the respondent was acting unreasonably in simply driving into the intersection in apparent ignorance of the approaching police vehicle, which had of course given much advance notice of its approach. Evidence was also given by a police sergeant who attended at the scene who said that the view of both vehicles was very restricted owing to the presence of a block of flats on the relevant corner. The respondent gave evidence that he was driving home with a passenger, and was driving at a reasonably low speed. When he first saw the traffic control lights at Elizabeth Street, they were red facing him, and he slowed his vehicle. When he was about 15 metres from the lights, they turned green. He said that he began to proceed through the intersection with his headlights on normal beam. He went on to say, and I quote, "All of a sudden there was a bang". According to the respondent, he did not know what had happened. He did not hear anything. He did not hear any siren, and he only saw the lights of the other vehicle at the last second. His Honour accepted the evidence of the respondent, and accordingly found that the respondent had entered the intersection with the lights in his favour. His Honour, clearly enough, rejected the contention that the police vehicle had entered the intersection with the lights in its favour, and concluded that, in fact, it had entered contrary to a red traffic control light. In the circumstances in which this accident occurred, including the circumstance of the restricted vision, were it not for the evidence concerning the blue light and the alternating horn, it would be clear to me that His Honour's acceptance of the respondent's evidence would have led to a verdict for the respondent. There would have been no basis in those circumstances for suggesting that the respondent was negligent, or had acted unreasonably. Counsel for the appellant, however, bases his submissions on the present Reg80 and its general provision that a vehicle should pull over to the left and become stationery whenever it is necessary to avoid impending danger or collision with any person. He also relies on an obligation to take the same action at the sounding of a siren horn or an alternating dual tone horn. In my opinion it is unnecessary to deal with the precise wording of the Regulation, and the somewhat tricky question, whether it could have come to play in this case for reasons which will emerge. The appellant relies on that regulation and submits that the respondent was negligent in proceeding into the intersection in the way that he did when a police vehicle was approaching with its blue light on and its alternating horn sounding. I am prepared to assume for present purposes that if the respondent had proceeded into the intersection when the police vehicle was approaching in the manner I mentioned, it would be arguable that the respondent had been negligent. However, as it seems to me, his Honour's acceptance of the evidence of the respondent, and in particular his evidence that he heard no siren or any untoward noise, involves a rejection of the evidence of the appellant, and that part of the statement of Senior Constable Betteridge to the effect that the alternating horn was sounded and kept on from the time that the police vehicle was 100 metres from the intersection until the point of impact. URJ CARCELLER v ANDREWS and ANOR (Sheller JA) 3 It is very unlikely that at 1 am in the morning, the respondent would have failed to hear or recall hearing the noise of an alternating horn, and on my understanding of His Honour's Judgment, His Honour, having accepted the respondent's evidence, rejected the evidence of the switching on of the alternating horn. If that is correct, then there is simply no basis in my view upon which it could be held that the respondent was negligent. Accordingly, on the findings of fact made by His Honour, it seems to me that there can be no successful challenge to the ultimate verdict, and I propose that this appeal be dismissed with costs. Handley JA I agree. Sheller JA I also agree. The order of the Court is the appeal is dismissed with costs. Mr Serisier, you may not have been responsible for this, but all the medical evidence was included in the appeal books, including the evidence of five witnesses who were called on damages, not on liability, and as we allowed the appeal, the matter would have had to have gone back for assessment by a District Court Judge. We could not have assessed. Unfortunately that money has just been wasted. Appeal dismissed with costs. Counsel for the appellant: LD Serisier Solicitors for the Appellant: Baker Ryrie Rickards Titmarsh Counsel for the respondent: DJ Russell Solicitors for the respondent: NSW Insurance Ministerial Corporation