KERR v KRSTEVSKI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COLE, BEAZLEY and STEIN JJA 1 September 1997, 1 September 1997 [1997] NSWCA 175 Motor Vehicle Accident — damages for negligence — no eye witnesses — no other vehicles in close proximity — adverse finding of credibility of evidence Stein JA These are two appeals arising out of a single motor vehicle accident. The actions were determined by Nash DCJ on 12 November 1996 in the District Court. The appellant (Mr Kerr) was the plaintiff in one action suing the respondent (Mr Krstevski) for damages for negligence. In the other case, Mr Krstevski sued Mr Kerr for negligence. The matters were heard together. The trial judge found in favour of Mr Krstevski and, in his action, awarded the respondent $178,383 in damages. In the other action brought by the appellant, his Honour entered a verdict for the defendant. The appeals challenge the factual findings by the judge. The facts are in a narrow compass. At around 3.30 pm on 19 November 1993 the respondent was driving his motor vehicle east along Mowbray Road, Lane Cove. The appellant was driving in a generally westerly direction along the same road. As the vehicles were negotiating a relatively sharp bend they collided, more or less head-on. The surface of the roadway had unbroken double lines prohibiting vehicles in either direction from crossing onto the incorrect side. Each driver gave evidence maintaining that he was on the correct side and that the other driver crossed over the unbroken lines onto the incorrect side of the road. In addition to the conflict between the respective drivers the task of the tribunal of fact was made more difficult because there was no passenger in either vehicle and no eye witness to the accident. No other vehicles were being driven in close proximity. A police officer visited the accident scene but his inquiries shed no direct light on how the accident had occurred or the point of impact. Although there were no witnesses to the collision, three people working in nearby premises heard the collision. They gave evidence but none of them could assist as to where on the road surface the collision occurred. His Honour found, and in my opinion was entitled to find, that no weight should be given to the final positions of the vehicles after the accident. I will return to this matter shortly. Each driver had an uninterrupted view of the road ahead, as far as could be seen around the sharp curve. The evidence of the respondent was that as he neared the curve he saw the appellant's vehicle coming down the hill close to the curve. It came across the double lines in front of his vehicle and about 2m into his lane. The vehicle collided with his vehicle on the right front. Except in a fairly mild way, his credit was not challenged. It was however put to him that he had intended crossing over the double lines and driving into a service station opposite to the bend. He denied this. 2 UNREPORTED JUDGMENTS The appellant gave evidence that as he approached the bend he noticed a car travelling in the opposite direction. He proceeded to negotiate the curve and the other vehicle turned towards the garage into his car. The accident occurred in front of the eastern driveway of the service station. The collision occurred on his side of the roadway. In cross-examination his evidence was challenged, partly on the basis of an inconsistent statement made to the investigating police officer. Photographs of the damaged vehicles tendered in evidence reveal that both vehicles were extensively damaged to their fronts with no damage to their nearsides. The appellant had given a statement to police at the hospital after the accident. The statement was to the effect that as he rounded the bend the other vehicle went to turn across in front of his vehicle and as it crossed the centre line he could not stop and collided with the front passenger side of that vehicle. In cross-examination he agreed that the collision was not with the passenger side and that he should have changed his statement. He agreed that the statement he had made was read to him at the hospital. With hindsight he agreed that it did not describe the accident as it happened and in fact the front of his vehicle did not collide with the passenger side of the other vehicle. His explanation for the incorrect statement and failure to correct it, was that he was in hospital, badly injured and on morphine. Having summarised the evidence the trial judge noted that quite obviously both vehicles could not have been on their correct side of the road. He acknowledged that each driver honestly believed he was on his correct side of the road and that a difficult question of fact arose because of the absence of any independent evidence. His Honour turned to the credibility of the appellant's evidence in relation to the version of the accident he had given to the police. The judge observed that the account was straightforward, simple and, coherent and that when it was read to the appellant at a later point of time, he made no complaint as to its correctness. His Honour stated: I consider that the version given by Kerr to the police officer was a reconstruction from the position of the vehicles after the collision. I am quite satisfied the vehicles were in positions at least fairly close to the evidence given by Messrs Glen and Russell Taylor and Mr Iddison, as well as by Mr Kerr. I am not satisfied that, in the circumstances, Kerr observed the direction of travel of the Laser before the collision, and that, having observed the vehicle in front of his Torana after the collision, he assumed that it must have turned from the Laser's correct side of the road onto the incorrect side of the road, across the path of the Torana, and in that motion the collision must have been with the passenger side of the Laser. At some time since he gave and late confirmed his version to Constable Trigg, perhaps after seeing Mr Glen Taylor's sketch that not only indicated the positions of the vehicles, but positions of the damage, he realised that there was no impact damage on the passenger side of the Laser, and that therefore the collision must have been head-on with the front offside of the Laser, which of course is what in fact happened. In the circumstances I consider that there is force in the submission relating to his credibility. (AB385E-W) It will be seen from the last sentence quoted above that his Honour made an adverse finding of the appellant's credibility. He did not accept the appellant's account of how and where on the roadway the accident occurred. His Honour specifically found that the respondent did not intend to, nor in fact, turn or veer right towards the entrance of the service station. The judge concluded that the URJ KERR v KRSTEVSKI (Beazley JA) 3 appellant's vehicle cut the bend by partially crossing the double lines, not having observed the approaching vehicle until it was too late, and that the front offside of each vehicle came into collision on the appellant's incorrect side of the road. This was a finding open on the evidence and one based, in part, on the judge's assessment of the credibility of the witnesses. The appellant's attack on the judgment is threefold: (1) that his Honour placed undue reliance on the statement made to the police officer having regard to the circumstances in which it was made; (2) that he erred in failing to give any weight to the final position of the vehicles on the road after the accident; and (3) that he erred in inferring that on the probabilities the appellant cut the bend by partly crossing the double lines. As to the first argument, it seems to me that in the absence of any independent evidence his Honour was entitled to place reliance on the inconsistent statement. His Honour acknowledged the circumstances under which it was made but noted that the statement was 'straight forward, simple and coherent' and that the appellant did not complain about its accuracy when it was read to him at a later point in time. In all of the circumstances no undue reliance was placed upon the statement, nor did the judge misuse his advantage. The second submission concerns the following passage in the judgment: As I have already adverted to, it is well-known that the position of vehicles at rest after a violent collision is, generally speaking, of little of no assistance to a Court to determine where vehicles were on the road at the time of collision. The positions of the vehicles is entirely consistent with what Kerr said in cross-examination, namely that, immediately after the impact, the Laser bounced back, stopped, and the driver's side turned slightly askew, pointing towards the service station. One would expect that a head-on collision of this magnitude would result in movement of both vehicles, not just one or the other. The positions of the vehicles do not assist me in determining on which side of the double lines the collision occurred. It would be an exceptionally strange manoeuvre for Krstevski to drive around this curve on the incorrect side of the lines. The probabilities are opposed to this, particularly as there is no suggestion of excessive speed. If so minded, or without even thinking, Kerr could cut this bend by partially crossing the double lines. I am satisfied that Krstevski did not intend to, or in fact, turn or veer right towards the entrance to the service station and the garden centre. (AB385 Y-386Q) The trial judge's finding that the positions of the vehicles on the roadway after the accident did not assist him in ascertaining the point of impact was consistent with the evidence, and, if I may say, common sense. The final submission is that the trial judge was not entitled to draw the inference that the appellant cut the bend. Having rejected the version given by the appellant as a reconstruction (and that the respondent's vehicle did not turn across his path towards the service station) it was perfectly open for the Court to find that the appellant's vehicle partly crossed over to its incorrect side of the road within the curve coming into a head-on collision with the respondent. Both appeals should be dismissed with costs. Cole JA I agree Beazley JA I agree Both appeals dismissed with costs. UNREPORTED JUDGMENTS Counsel for appellant: D F Rofe QC, K P Rewell Solicitors for appellant: Gibson Robinson Counsel for respondent: B M Watson, K Ryan Solicitors for respondent: Smallwood Cathcart