GORTON v ESSEX SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL HANDLEY, SHELLER and COLE JJA 28 June 1996 [1996] NSWCA 223 PERSONAL INJURY — negligence — duty of care — Nagle v Rottnest Island Authority (1993) 177 CLR 423 disting. Sheller JA. The plaintiff, Derrick John Gorton appeals from a judgment of Studdert J delivered on 6 June 1994. The proceedings arose out of a motor vehicle accident which occurred on the Pacific Highway at Glenugie near Grafton on 2 November 1988 in the early afternoon. The plaintiff was riding his motor cycle when it collided with a pantechnicon. The plaintiff suffered very severe injuries. At the time he was aged twenty-three years. He brought the proceedings against the driver of the pantechnicon, Wayne David Essex. Studdert J tried the issue of liability separately. At somestage there were two other defendants to the proceedings but leave was granted to discontinue the proceedings against them. His Honour found that the point of impact was 55.7 metres west of the T-intersection of Wooli Road and the Pacific Highway. This intersection was on the northern side of the highway. The defendant gave evidence that he was driving his pantechnicon on Wooli Road towards the intersection. He stopped at the corner and looked in both directions before deciding it was safe to proceed out and turn to his right onto the Pacific Highway. He said that he observed a semi-trailer which was a considerable distance to his right and had not gone onto the Glenugie Creek Bridge which was to the west of the intersection. His Honour found that it was reasonably safe for the defendant to proceed out onto the highway and into the turn when he made the decision to do so. After turning right onto the Pacific Highway, the defendant, according to his evidence, had just started to change into third gear, had reached a speed of 40 to 45 kilometres per hour and was travelling along the highway to the point 55.7 metres from the intersection. The semi-trailer was travelling in the opposite direction at a speed close to 100 kilometres per hour. The driver of the semi-trailer had not slowed. His Honour inferred that the driver did not perceive any risk of there being a collision with the pantechnicon when it crossed the highway. When the defendant was three-quarters passed the semitrailer, the plaintiffs motor cycle appeared in front of his pantechnicon and thecollision occurred. At the point of impact the highway was 6.9 metres bitumen edge to bitumen edge. The plaintiff, as a result of his injuries, had no recollection of the accident and gave no evidence on liability. His pillion passenger, Trevor Allan Landrigan, did give evidence. He said that he and the plaintiff were going off to do some trail riding and were travelling on the Pacific Highway towards Coffs Harbour. They came up behind a semi-trailer proceeding in the same direction at a point before the Glenugie Creek Bridge. After one attempt to come out to the right and see if there was any on-coming traffic, which there was, the bike went to the left as it was approaching the left hand bend in the road. Mr Landrigan said he could see down the left hand side of the semi-trailer. There were no vehicles at the 2 UNREPORTED JUDGMENTS intersection with Wooli Road. He said that when the bike then went over to the right and pulled out to overtake, he saw the truck in front and the collision occurred. His Honour rejected a submission that he should accept Mr Landrigan's that when he looked from down the left of the semi-trailer, the pantechnicon was not in the vicinity of the intersection and therefore must have come late to the intersection and could not have stopped before making its turn. His Honour said that the defendant impressed him as an honest witness and generally he accepted his evidence. At the trial the negligence alleged by the plaintiff against the defendant was put under three heads; first failing to stop at the intersection; second, failing to foresee the possibility that there was a motor cycle behind the semi-trailer which might come out in front of him; and thirdly, failing to take evasive action once he saw the plaintiff. Contrary to the first submission, his Honour found that the defendant stopped at the intersection before entering it, saw the semi-trailer approaching and then made a turn when it was reasonably safe to do so. His Honour rejected the second submission of negligence. He observed that the semi-trailer could easily have blocked the defendant's view of the motor cycle at all relevant times before it pulled out to overtake the semi-trailer. Reference was made to Nagle v Rottnest Island Authority (1993) 177 CLR 423. His Honour said that that case was clearly distinguishable. He reminded himself that a duty of care extended to a careless neighbour and said that he was not persuaded that there was any negligence in the manner contended in this second submission. As to the third submission, his Honour observed that the defendant had not been cross-examined about possible evasive action. His Honour was not persuaded that any evasive action could have been taken by the defendant. He found the accident was solely due to the negligence of the plaintiff in attempting to overtake the semi-trailer when he did. The appellant does not challenge his Honour's conclusion about the third of these matters. The first two grounds of appeal are said to be no more than conclusory and depend upon a favourable conclusion in any of the remaining grounds. The third ground of appeal is that his Honour erred in finding that the defendant was not negligent in failing to foresee the possibility that the plaintiff's motor cycle was overtaking the west bound semi-trailer at the time the defendant made his decision to make a right turn across the path of that semi-trailer to travel west on the Pacific Highway and towards the point of impact. It was said that the defendant took the chance that there was no cyclist or motorist behind the semi-trailer. Put in this way, the submission was predicated on the assumption that the motor cyclist was overtaking the semitrailer when the defendant decided to make his right turn and the defendant then crossed the path of the semi-trailer. Studdert J found that the semi-trailer was a considerable distance away when the turn was made and had not gone onto the bridge. No basis has been shown for challenging this conclusion. In the fourth ground of appeal, it is said that his Honour erred in distinguishing Nagle v Rottnest Island Authority from the case in hand on the issue of whether the plaintiff's overtaking manoeuvre ought to have been seen by the defendant before the defendant moved his vehicle onto the Pacific Highway. In my opinion, both the third and fourth grounds of appeal proceed on a misapprehension. The facts were, as found by his Honour, that the defendant had completed turn onto the Pacific Highway safely and had begun to travelnorth. URJ GORTON v ESSEX (Sheller JA) 3 Between the intersection and the bridge, the defendant passed the semitrailer which was coming in the opposite direction. Suddenly the motor cycle appeared. The motor cycle had quite simply overtaken the semi-trailer into the on-coming traffic. In my opinion, the decision of the High Court in Nagle v Rottnest Island Authority has no application to such a situation. In the course of oral submissions, Mr Gross QC emphasised what he described as his primary point, namely that the defendant initiated the right hand turn when he believed correctly that the turn could be made so far as the semi-trailer was concerned without risk of collision with the semi-trailer, but when the state of traffic behind the semi-trailer was obscured so that the defendant did not know what was behind it. In my opinion, in the circumstances of this case, this point is simply not made out. As I have said, his Honour found, in my opinion correctly, that the turn was made safely. The sole cause of the collision was the decision of the motor cyclist to overtake the semi-trailer into the on-coming traffic. The fifth ground of appeal was that his Honour erred in finding that he was not satisfied that the defendant had told police that he had been travelling at 55 kilometres per hour at the time of the impact when such evidence was not challenged or contradicted. This went to the assertion that if the defendant was travelling at this speed by the time he had reached 57 metres along the PacificHighway, the only conclusion could be that he had come through the intersection without stopping. The defendant gave evidence about the speed at which he was travelling. He was cross-examined, but denied that he was travelling at 55 kilometres per hour and was consistently asserted that he was travelling at 40 to 45 kilometres per hour. A further point made by Mr Gross was that in part of his evidence that the defendant had suggested that he could not have been travelling at 55 kilometres per hour because it would have taken a distance of about 500 metres for his vehicle to have reached that speed along the Pacific Highway. On that basis it was said that his Honour should not have accepted his evidence that he was travelling at only 45 kilometres per hour but rather should have accepted that he had proceeded through the intersection without stopping and was proceeding at a greater speed. If anything, however, I would have thought that this evidence would support the conclusion that the defendant may indeed have been travelling at a lesser speed than 40 or 45 kilometres per hour before the point of impact. However this may be, there was clearly evidence upon which his Honour could come to the conclusion he did about the speed that the defendant was travelling and there is no basis in my opinion on which this Court can interfere with that finding. The sixth ground of appeal was that his Honour erred in not inferring from Mr Landrigan's evidence that the roadway of the Pacific Highway ahead of the plaintiff was clear when the plaintiff pulled back to commence his overtaking manoeuvre. It is further said that his Honour gave no reasons for the conclusion he reached about the evidence of Mr Landrigan. However, I think it is quite clear from his Honour's judgment that as he said he accepted the account given by the defendant that he stopped at the intersection. It seems to me that having accepted that evidence and having weighed the evidence, as his Honour obviously did to the extent that Mr Landrigan's evidence suggested that what the defendant was 4 UNREPORTED JUDGMENTS said was not true, his Honour rejected it. As I have said, no reasons have been advanced in my opinion on the basis of which we could interfere with that conclusion. Finally, the seventh ground was that in accepting Constable Heard's evidence as to the point of impact and in accepting the defendant's evidence, his Honour erred 'in his reconciliation arising from conflicts arising from the evidence and in doing to misused his advantage in receiving the evidence at the trial.' This ground takes up the point to which I have already referred that the point of impact and the defendant's evidence about the time or distance that it would have taken to reach a speed of 55 kilometres per hour produced an inconsistency with the defendant's account of the speed at which he was going. As I have said, I am not persuaded that there is any basis upon which we should interfere with his Honour findings of fact in this respect. Submissions were made that his Honour's reasons for judgment were not sufficient. In my opinion they were entirely sufficient. It is quite apparent from his Honour's judgment that he proceeded on the basis of accepting substantially what the defendant said. On that basis, I am not persuaded that any of the grounds of appeal have been made out, I would propose that the appeal 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. Counsel for the appellant: BJ Gross QC Solicitors for the appellant: Thompson: Wheelahan and Hampshsire Counsel for the respondent: RC Tonner Solicitors for the respondent: D Pittard - GIO Australia