EDIS v CHOUSEAS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE, HANDLEY and COLE JJA 26 September 1996 [1996] NSWCA 167 MOTOR VEHICLE ACCIDENTS — apportionment of liability — finding of fact — determination of negligence. The plaintiff who was riding a motor cycle collided at a T-intersection with the defendant, driving a motor vehicle, who was turning right. The intersection was governed by traffic lights and both claimed to have the green light in their favour. The plaintiff had given evidence that when he saw the defendant brake he believed he would be able to pass in front of her. The defendant said she had a green arrow in her favour and believed the plaintiff would obey the red light facing him. The trial Judge found that the defendant had the green arrow in her favour. Despite this finding, he apportioned 85% of the responsibility for the accident to the defendant because when she slowed down she misled the plaintiff into thinking that she was allowing him to pass in front of her. The defendant appealed. The plaintiff submitted that a finding of negligence was open against the defendant because she turned knowing that a collision was inevitable. HELD, allowing the appeal: (1) The plaintiff's evidence that he was misled depended on his evidence that he had the green light in his favour. This was negatived by the Judge's finding that the plaintiff entered the intersection against a red light; (2) There was no evidence to sustain a finding that the defendant knew that in making her right hand turn with the green arrow in her favour an accident would result; (3) The defendant had not been negligent. Handley JA. This appeal arises out of the motor vehicle accident which occurred on 10 December 1990 about 7.00 am at the T-intersection between Coward Street and Bourke Street Mascot. The plaintiff riding a motor cycle was travelling in Coward Street in a westerly direction. The defendant driving a motor vehicle was travelling in an easterly direction and intended to make a right hand turn into Bourke Street. The intersection is controlled by traffic lights which include provision for a green arrow tor traffic wishing to proceed as the defendant did from Coward into Bourke Street making a right hand turn. The defendant made the right hand turn into Bourke Street and collided with the plaintiff's motorcycle which had proceeded through the intersection apparently without braking. The plaintiff claimed that he had a green light in his favour and that was why he proceeded as he did. The defendant on the other hand claimed that she had a green arrow and light in her favour which if true meant that the plaintiff was facing a red light as he entered the intersection and had earlier faced an amber light before the lights changed to red. This important question of fact was resolved by the trial Judge in favour of the defendant. The situation therefore is that the plaintiff, without braking, rode through a red light and collided with the defendant who was travelling at a modest speed making a right hand turn with a green arrow in her favour. 2 UNREPORTED JUDGMENTS Despite these findings the trial Judge was able to find the verdict for the plaintiff apportioning 85 per cent of the responsibility to the defendant and a mere 15 per cent to the plaintiff. With the greatest of respect to his Honour I regard such an apportionment as fantastic. He arrived at this apportionment by finding that the defendant's vehicle was travelling at a modest speed she having applied her brakes as she came up to the intersection to make her right hand turn. The Judge found that the plaintiff saw the defendant's vehicle slow down, saw the front of her vehicle dip, indicating an application of the brakes and thought that the defendant had seen him and was stopping to allow him to pass in front of her. The plaintiff did not give evidence to this effect but he did say that he saw that the defendant had applied her brakes because he saw the front of her vehicle dip. However earlier in his evidence in chief he had said that he saw the defendant's car braking 'to turn right in front of me' and he noticed that her blinkers were on indicating an intention to make a right hand turn. In my opinion there was no evidence which supported the Judge's finding that the defendant's behaviour as she approached the intersection and commenced to make a right hand turn misled the plaintiff in any way. The plaintiff's case was that he had the green light in his favour and was entitled to proceed as he did. If that had been correct it was only to be expected that the defendant would be slowing down to allow the plaintiff who had the right of way to cross the intersection before she made her right hand turn. Since the Judge found that the plaintiff entered the intersection against a red light there was no basis for his finding that the defendant's conduct misled the plaintiff. The Judge also found that the plaintiff proceeded through a red light "Although ... it was only a matter of seconds before when that light had in fact turned red'. The plaintiff gave no such evidence and in any view there was no evidence which supported this finding. The defendant's evidence which the Judge accepted was that at all material times she had a green light and a green arrow in her favour. The Judge's finding ignores the fact that the plaintiff would have faced an amber light before the light changed to redand that there would have been a further interval before the green arrow in favour of the plaintiff became illuminated. The defendant was driving at a moderate speed to make her right hand turn, she had a green arrow in her favour and the plaintiff entered the intersection having ignored an amber light and then a red light which prohibited him from doing so. Moreover on some of his own evidence, he made no attempt to apply his brakes, though in other evidence he said that he had done so. The Judge seems to have found that the plaintiff did not brake prior to entering the intersection. Mr Miller QC, who appeared for the plaintiff, and said everything that could possibly have been said in his favour, submitted that an ultimate finding of negligence against the defendant was open having regard to the fact that she must have turned knowing that a collision was inevitable. The existence of a green arrow or a green light in favour of a motorist does not entitle that person to disregard the presence of another person or vehicle in front of them when the motorist knows or should know that a collision is inevitable. However in my judgment that is not the present case. The defendant did not acknowledge that she turned into the intersection knowing that the result would be a collision with the plaintiff's motor cycle. She asserted a belief that the plaintiff would stop and obey the red traffic light which the defendant appreciated must have been facing him at the time. URJ EDIS v CHOUSEAS (Cole JA) 3 In the circumstances I am unable to see that the defendant was guilty of any negligence at all and I would therefore propose that the appeal shouldbe allowed and that judgment should be entered for the defendant in the action. The plaintiff is to pay the defendant's costs of the trial and the defendant's costs of this appeal but is to have a certificate under the Suitors Fund Act in respect of the costs of the appeal. Clarke JA. I agree. Cole JA. I also agree. Orders accordingly. Counsel for the appellant: C T Barry QC/P G Maiden Solicitors for the appellant: G E Lazar Counsel for the respondent: C T W Miller QC/R Bell Solicitors for the respondent: W G McNally and Co