LOCKHORST v AARON and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 17 June 1996, 17 June 1996 [1996] NSWCA 329 Negligence — motor vehicle accident — collision of bicycle with car — obligation of driver to take reasonable care in parking car. Clarke JA This appeal concerns a collision between a bicycle ridden by the appellant and a motor vehicle owned and driven by the respondents. That collision occurred in Avoca Street, Randwick on 30 July 1990 and in it the appellant suffered injuries which led him to bring the case against the respondents. The appellant's case presented at the trial was relatively straight forward. He was riding his bicycle in a southerly direction along Avoca Street on his way home from work following a car and approaching a set of traffic control lights at the intersection of Avoca Street and Barker Street. At the point in question, Avoca Street contained two divided traffic lanes travelling in each direction. For vehicles travelling south, one lane was often occupied by parked vehicles until a point relatively close to the intersection, leaving only the lane nearest the centre line for traffic to use. The position on the day in question was no different in that there were vehicles parked in the kerb side lane of Avoca Street up until a driveway, from which point there was a no standing sign operative. That driveway, which was on the left-hand side of the appellant as he rode his bicycle, was the driveway from a Nissan car yard. To be more precise, there were vehicles parked in the kerb side lane right up to the point of that driveway and thereafter the kerb side lane was vacant until the traffic control lights. The appellant contended that, while he was riding towards the intersection, the respondents' vehicle drove out of the Nissan car yard and commenced to make a left-hand turn to proceed towards the intersection. He says that the vehicle emerged suddenly in front of him and that when it was at a point substantially in the middle lane, that is the lane nearest the centre line, he struck the right-hand rear corner of the vehicle. His case was admirably summarised in the sketch which was put in evidence and was described as exhibit PX3. In that sketch he shows a parked vehicle immediately north of the entrance way from the car yard and also the respondent's vehicle at the time of impact. According to this sketch, virtually all of the respondent's vehicle was in the middle lane, including the part which he contended he struck. The respondents' case was quite different. It emerged from evidence given by the first respondent, who was the driver of the vehicle at the time. He said that he drove the vehicle to the edge of the road and, looking to his right, could see the parked vehicles but could not see anything else. The lane, that is the kerbside lane to his left, was then free of any vehicles and he swung left in as tight a turn as he could make and straightened up in that lane. 2 UNREPORTED JUDGMENTS According to the substance of his evidence, he did not protrude into the middle lane or, if he did, only very slightly in the early part of his turn. In any event, according to his case, he straightened up and pulled up against the kerb or near the kerb and became stationary. After he had been stationary for a very short while, he felt a bump in his right-hand rear corner and that was, of course, the bump indicating the accident. His Honour rejected the appellant's version and accepted in substance the respondent's version, including the fact that he had not protruded in any significant way into the middle lane and that he had straightened up into the vacant kerb side lane and become stationary near the kerb. His Honour was unable to say whether the car was parked completely parallel to the kerb and that its rear might not have been sticking out slightly. But it is true to say that the substance of his Honour's judgment was that the vehicle was wholly within the kerb side lane. I should add that the appellant said that he was riding his bicycle in the middle lane, an arm's length from the parked cars. The appellant challenges his Honour's rejection of his case and he challenges the finding that, even upon the accepted factual case, there should be a verdict for the respondents. The grounds of appeal, in respect of which an application to amend was made, were originally seven in number. The first four of these did not attract any oral submissions from counsel, except in response to questions from the Bench, and they seem to me to be bordering on the specious. The first two grounds were that his Honour erred in failing to specify which parts of the evidence of the appellant and the first respondent respectively he accepted and which parts he rejected. It is in my opinion quite clear that he accepted the substance of the first respondent's account of the accident and this ground is without any substance at all. The next ground is that his Honour failed to give proper and sufficient reasons for his judgment. Again there is no substance in this ground. The fourth ground is that his Honour was in error in finding that the appellant's version of the accident was virtually a complete reconstruction. Given the great deal of evidence concerning the late stage at which the appellant saw the respondents' vehicle, it is not surprising that his Honour held that he did not see it until the very last moment. In those circumstances his evidence and his statement to the police as to what the driver of the other vehicle had done prior to that time could have amounted to nothing more than a complete reconstruction. The next ground is that his Honour's finding that the appellant did not see the first respondent's vehicle come out of the car yard was against the weight of the evidence and contrary to it. I do not propose to go through each of the passages of evidence in which this subject was traversed but I think it is fair to say that the great weight of that evidence is that neither the appellant nor the respondent saw the other vehicle until it was far too late to do anything. I do not believe there is any substance in this submission either. Ground six is a matter of more substance and I will come to that in a moment. Ground seven asserts that his Honour failed to find or specify the position of the first respondent's vehicle and the appellant's cycle on impact. I have already said that his Honour concluded that the first respondent's vehicle pulled up beside the kerb and became stationary and that his Honour could not say upon the evidence whether it was precisely parallel to the kerb or not. I do not think there is any substance in ground seven. URJ LOCKHORST v AARON and ANOR (Clarke JA) 3 Ground eight is the ground which the appellant has sought leave to add. When the application was made the Court reserved that leave in order to consider the question during the course of the hearing. The ground reads that his Honour erred in concluding that once the first respondent had come to this parked position and had stopped, any obligation to the appellant had ceased. In my opinion it is appropriate to grant leave for the appellant to rely on the ground and I will deal with it in a moment. As I see the thrust of the appellant's case, it has two legs. The first is the leg supported by ground eight. That ground seeks to support an order that the judgment be set aside upon the basis that his Honour said that on the balance of probabilities at the time of the impact the first respondent had come to this parked position and had stopped and at this stage any obligation to the plaintiff had ceased. Counsel argues that it is not correct to say that because a driver brings his vehicle to a halt that his obligation to other road users ceases. Speaking generally, there is nothing wrong with this proposition. But, of course, the submission and his Honour's statement have to be understood in the context of the judgment as a whole. While I tend to the view that his Honour was putting it a little too highly in saying that any obligation to the plaintiff ceased once the vehicle became stationary, I am firmly of the opinion that that statement played no operative part in the reasoning process which led to the conclusion that there should be a verdict for the defendant. The real strength, if I can put it that way, of the appellant's case was that, even accepting the evidence of the first respondent, the correct verdict was one for the appellant, albeit reduced because of contributory negligence. It is that case which counsel for the appellant has sought to advance in his submissions or perhaps, to put it more clearly, has placed most weight on in his submissions. Ground six, which adverts to his Honour's alleged failure to give sufficient weight to the failure of the first respondent to see the appellant before entering the highway, directly raises the point. It is true that the first respondent was, immediately prior to the collision, entering a roadway upon which there was traffic flowing south and that he was obliged to exercise due care in doing so. It was put that, if he had been exercising due care, he would or should have seen the bicycle travelling south close to the parked vehicles. That submission is a little difficult to evaluate given the limited evidence and the very real possibility that the rider, proceeding with his body bent forward with his face up, was obscured for all material purposes to a vehicle stationary in the driveway at all relevant times. In any event, the driver was proceeding to his left into a laneway which was not occupied by any vehicles but which was filled on his right by stationary vehicles. No doubt he could not entirely disregard the prospect that a vehicle might drive south towards the intersection in the middle lane and veer into the kerb side lane. But, as I understand his evidence, he realised the need to move very slowly into that lane in order to ensure he did not come into collision with a vehicle which did that. As it transpired, he made his turn with complete safety either in or substantially in the kerb side lane and travelled some distance forward before becoming stationary and it was only then, when he was stationary in that lane, that he was struck. In those circumstances his Honour concluded that he was unable to find that his conduct departed from the conduct expected of a driver exercising reasonable care. 4 UNREPORTED JUDGMENTS Thave listened to the argument and the constant reminders that the Court must use commonsense in determining questions such as those confronting this Court, but at the end of the day I remain totally unpersuaded that his Honour's decision was not the correct one. As it seems to me, if the rider of the bicycle had maintained his position, there would have been no accident. The only inference open from the facts as found was that he himself was not keeping a proper lookout and, because he had not seen the vehicle pulling up in the kerb side lane, he veered into that lane and struck it on its extreme right-hand side at the rear. I am not satisfied that it has been shown that his Honour made any error and I would propose that the appeal be dismissed with costs. Handley JA I agree. Sheller JA I also agree. The appeal will be dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: PCB Semmler QC Solicitors for the appellant: Booth Mather Blackmore Counsel for the respondent: DGT Nock SC Solicitors for the respondent: Abbott Tout