CATLEY v STONE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA, HANDLEY JA and COLE JA 27 June 1996 [1996] NSWCA 96 MOTOR VEHICLE ACCIDENT — liability — challenge to findings — evaluation of evidence. About 4 a.m. on 20 June 1988 the plaintiff who was driving a tour bus ran into the rear of a semi-trailer travelling in the same direction. They were on a steep section of the freeway, the roadway was wet, and there was no overhead lighting. The plaintiff sued the owner of the semi-trailer for negligence alleging that its rear lights were obscured by the tarpaulin covering the load. An independent witness driving behind the bus had observed the lights on the defendant's vehicle before the accident. The trial judge found a verdict for the defendant. The plaintiff appealed on the grounds that the trial judge should have found that the tarpaulin did obscure the lights and relied on photographs taken after the accident. The appellant also argued that the evidence-in-chief of a passenger should have been accepted and that the evidence of the independent witness should have been discounted for reasons argued before the trial judge. HELD, dismissing the appeal: (1) The photographs taken after the accident were not helpful because the force of the collision may have shifted the load or damaged tie-ropes for the tarpaulin; (2) The photographs did not establish incontrovertible evidence taking the case outside the general rule in Abalos v Australian Postal Commission (1990) 171 CLR 167; (3) The trial judge's preference for the evidence of the passenger in cross-examination could not be disturbed; (4) The trial judge was better placed to evaluate the submissions for discounting the evidence of the independent witness and his findings could not be disturbed. Handley JA. About 4 a.m. on 20 June 1988 the plaintiff was driving a tour bus on the F3 freeway south of the Brooklyn Bridge in a southerly direction when it ran into the rear of a semi-trailer travelling in the same direction in the kerbside lane. The accident occurred on a rather steep section of the freeway towards the top of the hill above the bridge. The roadway was wet. There was some drizzle and of course there was no overhead lighting. The bus driver sued the owner driver of the semi-trailer for negligence. The action came on for trial before Loveday AJ who found a verdict for the defendant. The plaintiffs case was that the rear lights of the semi-trailer were obscured by the tarpaulin covering the load which was loose and had fallen down or dropped. The plaintiff had no recollection of the accident which, in view of his injuries, is not surprising, so his case had to be supported by other witnesses. Mr Leon Lucas was driving another semi-trailer in the same direction at the time. He gave evidence which strongly supported the plaintiff's case but this evidence was rejected by the trial judge because Mr Lucas had identified the defendant's truck at various points north of the accident site on the same freeway, in particular at the Doyalson, Wyong and Ourimbah exits from the freeway. However the trial judge was satisfied, and for substantial reasons, that the defendant had slept the night at his home at Niagara Park and had only driven on to the freeway at the Kariong exit. 2 UNREPORTED JUDGMENTS It is clear therefore that Mr Lucas could not have seen the defendant's vehicle at the earlier sections of the freeway he had identified in his evidence. The plaintiff also called a Mr Phillip Andreopoulos, a passenger on the bus, who gave evidence that after the accident he observed the defendant adjusting the tarpaulin over the load on his semi-trailer. After the defendant had completed this activity, Mr Andreopoulos said that he noticed the illuminated tail lights on the semi-trailer he had not been able to see before because they had been obscured by parts of the tarpaulin. This evidence was rejected by the trial judge because the tail lights on the semi-trailer had been destroyed in the collision. The remaining witness called in the plaintiff's case to establish the condition and visibility of the lights before the accident was Mrs Andreopoulos. She gave evidence of seeing seconds before the accident a large black object without lights looming up immediately in front of the bus. This evidence appeared to support the plaintiff's case that the rear of the semi-trailer was indeed unlit for some reason but the effect of her evidence was greatly diminished in cross examination. As the trial judge found: She agreed that sitting in the position she was in the bus, third seat back on the near side of the bus, she would have been sitting up with her head tipped back looking over the top of the seat and that she would have seen only the upper part in effect of what was in front of the bus, something that she described as a big, dark object which she thought was a rock. It appears that her vision was of the upper part of the load on the semi-trailer, the upper part of the tarpaulin. What she saw was a dark object illuminated by the lights of the bus, and her vision, when she noticed it, was of that alone and not of the lower section of the semi-trailer where the tail lights and rear lights were located. In those circumstances I am of the opinion that I cannot rely upon Mrs Andreopoulos as a witness who is able to give any evidence of the state of the lights or the position of the tarpaulin in relation to those lights at the rear of the semi-trailer. The judge had some reservations about the defendant's evidence but none about that given by the independent witness, Mr Searle, the driver of the other semi-trailer who was driving behind the bus and said that he observed the lights on the defendant's vehicle shortly before the accident. In the light of these findings his Honour entered a verdict for the defendant. Mr Tuckfield QC who appeared for the appellant in this Court recognised the difficulties he faced in seeking to have this Court overturn the findings of the trial judge. He made four principal points in support of the appeal. The first was that the trial judge ought to have found that the tail lights on the defendant's semi-trailer were obscured by the tarpaulin. Second, that he should have found that the tarpaulin was not the usual one used by the defendant but was a larger one. Third, that the trial judge should have accepted the evidence of Mrs Andreopoulos and fourth, that the trial judge should have rejected or discounted the evidence of Mr Searle. The appellant's first two points were supported by reference to photographs of the back of the defendant's semi-trailer taken after the accident including blown-up photographs taken from television film of various views of the defendant's semi-trailer. These photos do show that the tarpaulin was not taut after the accident and was loose at the back and at the rear corners of the semi-trailer. In my opinion, however, it is not possible for this Court to treat this photographic evidence as establishing incontrovertible facts which could take this case outside the general rule in Abalos. The force of the collision would URJ CATLEY v STONE (Clarke JA) 3 almost certainly have caused the defendant's load to shift and exhibit C1, the photograph taken of the back of the semi-trailer, shows that at least one of the tie ropes at the rear of the semi-trailer had been broken presumably as a result of the collision. In my judgment this Court cannot draw any firm conclusion from the photographic evidence as to the state of the tarpaulin before the collision. The third point argued by Mr Tuckfield invited this Court to act on the evidence-in-chief of Mrs Andreopoulos. However the trial judge who saw and heard her preferred her evidence in cross-examination and in my judgment this Court cannot disturb this finding. The final point taken by Mr Tuckfield was that the trial judge erred in accepting and acting on the evidence of Mr Searle. This involved a submission that Mr Searle's observations of the truck and the defendant's semi-trailer were so problematic that no firm conclusion could be drawn from them. In my judgment this invitation to discount Mr Searle's evidence should not be accepted. Similar submissions were made to the trial judge. They essentially depend upon calculations of speed, distances and times from which it is sought to draw the conclusion that the lit semi-trailer travelling south on the freeway observed by Mr Searle could not have been the defendant's semi-trailer. The trial judge rejected these submissions and in my judgment it is impossible for this Court to accept them, bearing in mind the advantage enjoyed by the trial judge of seeing and hearing Mr Searle. In any event, the rejection of Mr Searle's evidence would not establish evidence to the contrary and would not demonstrate that the defendant's semi-trailer was unlit to the rear at the relevant times. For these reasons I would propose that the appeal should be dismissed with costs. Clarke JA. I agree. Cole JA. I also agree. Clarke JA. The appeal will be dismissed with costs. Orders accordingly. Counsel for the appellant: J H Tuckfield QC/P C See Solicitors for the appellant: Philip Parbury and Associates Counsel for the respondent: R C Tonner Solicitors for the respondent: G M Meadows