BOBBY ANGELOSKI v GIO OF NSW SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL HANDLEY JA, SHELLER JA and COLE JA 21 June 1996 [1996] NSWCA 17 MOTOR VEHICLE ACCIDENTS — contributory negligence — challenge to findings of trial judge. The plaintiff was involved in a motor vehicle accident on 30 September 1985 at a 45 degree angle T-intersection. The intersection was governed by traffic lights and both drivers said that they faced a green light but both could not be correct. The trial judge preferred the evidence of the defendant and a pedestrian. The plaintiff appeal on the grounds that the trial judge had misinterpreted the evidence of the pedestrian and that on the findings the case was one for apportionment. HELD, dismissing the appeal: (1) The findings of the trial judge could not be disturbed; (2) There was no basis for finding that the defendant was guilty of negligence in following a line of traffic that had a green light. Handley JA. This is an appeal by a plaintiff Mr Angeloski from a judgment for the defendant entered by Downs DCJ on 25 October 1994. The proceedings before the trial Judge arose out of an accident which occurred at 6.30pm on Monday 30 September 1985 at a 45 degree angle T-intersection between Unswins Bridge Road and Griffith Street and Richardson Crescent at Tempe. Mr Angeloski was driving a motor cycle in a northerly direction from Griffith Street into Unswins Bridge Road. He collided at that intersection with a van being driven by a Mr Makedonas, who was travelling in asoutherly direction in Unswins Bridge Road, making a right hand turn across the intersection into Richardson Crescent. Both drivers were injured in the collision, and Mr Angeloski sued the statutory insurer, then the Government Insurance Office, and Mr Makedonas did likewise. Both actions were heard together with appropriate separate representation. Mr Angeloski said that he faced a green light as he proceeded north from Griffith Street into Unswins Bridge Road. Mr Makedonas, however, said that he faced a green light with a green arrow authorising him to make a right hand turn into Richardson Crescent. Both accounts could not be correct. The evidence of Mr Angeloski was corroborated by two other witnesses, a Mr Gardner and a Miss Karl. Mr Scouris, an independent witness and a pedestrian, also gave evidence which supported the evidence of Mr Makedonas. The trial Judge rejected the evidence of Mr Angeloski and his supporting witnesses, preferring the evidence of Mr Makedonas. As a result he entered a verdict for the defendant in the action brought by Mr Angeloski, and found a verdict for the plaintiff in the action brought by Mr Makedonas. Mr Angeloski appealed from the verdict for the defendant, and there was a protective appeal by the insurer against the verdict in favour of Mr Makedonas. Mr Andrews, who appeared for Mr Angeloski, challenged his Honour's credibility based findings of fact only on one point, which was that his Honour had misunderstood the evidence given by Mr Scouris. Mr Andrews also 2 UNREPORTED JUDGMENTS submitted that the trial Judge, even on his own findings, should have found that the case was one for apportionment, and that Mr Makedonas had been guilty of some negligence. Mr Andrews" submission that his Honour had misunderstood the evidence of Mr Scouris, related to the state of the traffic lights facing Mr Scouris at the time. He was on the western side of Griffith Street, and had crossed at the intersection with Richardson Crescent to an island where there were traffic demand buttons. These could be activated by a pedestrian wishing to cross the rest of Richardson Crescent and proceed north along Unswins Bridge Road. Mr Andrews submitted that the trial Judge was in error in thinking that Mr Scouris had deposed to the state of the traffic lights facing vehicular traffic proceeding, as Mr Angeloski was, from Griffith Street into Unswins Bridge Road. He referred to his Honour's two references in his judgment to the fact that Mr Scouris had said that there was a red light facing him. Mr Scouris did not make it clear whether he was referring to a red light controlling pedestrian traffic, or a red light facing vehicles proceeding north in Griffiths Street. However he twice referred to the fact that he was facing a Don't Walk sign and a red light. Accordingly, the evidentiary foundation for Mr Andrews" submission has not been made good. Moreover his Honour did not say that he understood that Mr Scouris was speaking about the traffic light facing vehicular traffic in Griffith Street. The information in the Roads and Traffic Authority diagram in evidence indicating the phases of the traffic lights at this intersection, together with the letter from the Authority to the appellant's solicitors at pp 166-168 of the appeal book, leads to the conclusion that if Mr Scouris was facing a red light and a static Don't Walk sign the lights had to be either in phase A or in phase C. On either basis, Mr Angeloski would have been facing a red light in Griffith Street. This is supported by the evidence of Mr Scouris that 'traffic was moving from Richardson Crescent'. This could occur in either phase A or phase C, but in phase C there would also be a green arrow allowing vehicles in the position of Mr Makedonas to turn right from Unswins Bridge Road into Richardson Crescent. However on either phase A or phase C Mr Angeloski would have faced a red light, barring further progress north into the intersection. It follows in my opinion that the appellant's principal challenge fails. Mr Andrews" second submission was that, although Mr Makedonas was making a right hand turn at this intersection in the evening peak hour, with a green arrow in his favour, nevertheless he was guilty of somenegligence in failing to observe the presence of the motor cycle driven by Mr Angeloski until moments before the collision. I am unable to accept this submission. Mr Makedonas, whose evidence was accepted by the trial Judge, said that he had followed another vehicle in the course of making his right hand turn from Unswins Bridge Road into Richardson Crescent. He had the green arrow in his favour, and I am unable to see that there was any realistic basis for a finding that he was guilty of any negligence in following a line of traffic in making his right hand turn. I would therefore propose that the appeal should be dismissed with costs. URJ BOBBY ANGELOSKI v GIO OF NSW (Handley JA) 3 Sheller JA. I agree, and I would only add this, that it seems plain to me from his Honour's judgment that quite separate from the evidence given by Mr Scouris, he preferred the evidence given by Mr Makedonas to that given by Mr Angeloski and his witnesses. I agree that the appeal should be dismissed with costs. Cole JA. I agree with both the readings delivered by the Presiding Judge and Mr Justice Sheller, and with the orders proposed. Handley JA. The orders of the Court therefore will be the appeal by Angeloski dismissed with costs. Mr Russell, you took a caution, but I think you might have to pay the premium. You don't want to be heard against an order that the appeal in the second matter of New South Wales Insurance Ministerial Corporation and Makedonas should be dismissed with costs? RUSSELL: No. HANDLEY JA: Yes, the Court will make that order. Orders accordingly. Counsel for the appellant: D E Andrews Solicitors for the appellant: George Traikovitch and Co Counsel for the respondent: G M Watson Solicitors for the respondent: Glover and Glover