MCPHERSON v GIO OF NSW SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY, BEAZLEY and STEIN JJA 16 April 1997, 16 April 1997 [1997] NSWCA 199 NEGLIGENCE — Motor Vehicle Collision — Failure to keep a proper lookout — Sibley v Kais (1967) 118 CLR 424 distinguished. APPEAL AND NEW TRIAL — Findings of credit by trial judge — No failure to use advantage as trial judge or findings contrary to evidence — Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways (1993) 177 CLR 472 applied. Beazley JA This is an appeal from a decision of Judge Downs in the District Court dismissing a claim for damages arising from a motor vehicle accident which occurred on Friday 17 August 1984 in Broken Hill. The appellant and two companions had driven from Adelaide to Broken Hill for a billiard competition, arriving in Broken Hill at approximately 6.45 pm. The appellant did not drive the car until they were just outside of Broken Hill. Her evidence at trial was that she had been travelling west along Oxide Street, Broken Hill at a speed of approximately 40 kilometres per hour looking for the motel they were to stay in. Upon reaching the intersection of Oxide Street and Wyman Streets they realised that they had passed the motel. The appellant intended to cross Wyman Street, make a u-turn and return down Oxide Street. The appellant said that before entering the intersection she looked to her right down Wyman Street and did not see any other car. She said she did not see it until she was in the middle of the intersection and "had nowhere to go". The other car, driven by a Mr Clark collided with the appellant's vehicle on the driver's side at about the centre pillar. The impact caused the car the appellant was driving to jump the kerb and smash into the front brick fence of a house on Wyman Street. The appellant was trapped in the vehicle for sometime and sustained a fractured right hip as a result of which she was hospitalised for more than two months and was incapable of weight bearing for more than six months. The only other evidence given at trial was by Constable Hannon who attended the scene of the accident about ten to fifteen minutes after it occurred and who had taken a statement from the appellant whilst she was in hospital and had also interviewed the driver of the other car. Neither of the two occupants of the other car were called by the respondent because the driver, Mr Clark, was by the date of trial suffering from advanced senile dementia and cerebral arteriosclerosis and was bedridden and his wife had died since the accident. The appellant did not call either of the two occupants of the car driven by her. The trial judge did not accept the reasons given by the appellant for her failure to call one of those witnesses. There was no explanation as to the failure to call the other witness. His Honour thus drew a Jones v Dunkel (1959) 101 CLR 298 inference against the appellant's case. He was justified in so doing. There was an issue at the trial as to the accuracy of the appellant's version of the accident given during the course of her evidence. That evidence differed in important respects from the statement given by the appellant to Constable Hannon a day after the accident. It is not necessary to refer to all discrepancies. 2 UNREPORTED JUDGMENTS The two most important differences were, first, at trial the appellant said that as she had entered the intersection, she slowed from 40 kilometres per hour to 5 kilometres per hour. In her statement to Constable Hannon she made no reference to slowing down. Secondly, in evidence she said that she did not see the other vehicle until she was approximately in the middle of the intersection when she suddenly saw the lights of a vehicle on her right. In her statement to the police the appellant had said that she did not see the other vehicle at all prior to the collision. Another relevant factor in his Honour's overall assessment of the matter and his ultimate determination was that the appellant did not see the give-way sign at the intersection and his Honour did not accept her explanation that it was obscured by trees, preferring the evidence of Constable Hannon that there was a clear view of the give-way sign. Indeed, his Honour considered that the appellant's attention was distracted because she was looking for the hotel at which she and her travelling companions were to stay. The appellant sought to explain the discrepancies between her evidence and her statement to the police officer by the fact that she was hospitalised with a severe injury, recovering from an operation the previous day and was in shock. The trial judge rejected this explanation. The trial judge held that the appellant had been the sole cause of the accident. He was satisfied that Mr Clark had little opportunity to see the plaintiffs vehicle before impact. He considered the evidence of Constable Hannon to be more reliable than that of the appellant primarily because he had made contemporaneous notes which conflicted with the appellant's version of events in several significant respects. As the circumstances of the occurrence of the accident depended upon findings of credit this Court is bound to accept those findings unless it is of the view that the trial judge failed to use, or palpably misused his advantage as trial judge or the findings of fact were contrary to incontrovertible evidence: see Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472. This case involved unexceptional findings of fact by the trial judge and therefore are not susceptible to interference by this Court. This Appeal This appeal is brought on the sole ground that his Honour erred in finding that the appellant was the sole cause of the collision, such finding being against the weight of the evidence. Counsel for the appellant relied upon the High Court decision in Sibley v Kais (1967) 118 CLR 424. In Sibley the applicant and the respondent had collided in an intersection in circumstances where the respondent failed to give way to his right, as required by a road traffic regulation. In a joint judgment dismissing an application for special leave the Court observed that: "The common law duty to act reasonably in all the circumstances is paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give-way vehicle of his obligations under the regulations." The court concluded: "The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to reasonable care is of course a question of fact, but to our mind, generally speaking, reasonable care requires each driver URJ MCPHERSON v GIO OF NSW (Beazley JA) 3 as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact should he find another vehicle approaching from this right or his left in such a fashion that if both vehicles continue a collision may reasonably be expected." In this case, although conceding that the appellant had failed to keep a proper lookout, counsel for the appellant submitted that in all the circumstances the driver of the other vehicle also failed to keep a proper lookout, and this failure caused or materially contributed to the appellant's injuries. The same submission was put at trial. A number of matters were relied upon in support of the submission. It was submitted that Mr Clark had failed to see the appellant's vehicle notwithstanding the fluorescent lighting and that his observation to the police constable that all he had seen was a flash of lights and was then hit by the other car was evidence that he had failed to keep a proper lookout. Reliance was also placed upon the comparatively low speed of each of the vehicles and the relationship that speed had to the opportunity for each to observe the other. Subject to a matter to which I will refer shortly, it is undoubtedly true that if both vehicles were travelling at a low speed their opportunities to see the other were enhanced. Counsel further relied upon the fact that the intersection was a crossroad so that a reasonable driver would perceive the possibility of traffic converging from three different directions-and thus would have to take care to keep a proper lookout. This, it was submitted, the driver of the other vehicle had failed to do, as was apparent from the absence of any tyre marks on the road indicating that he had taken some sort of evasive action. In my opinion, however, the fact that there were no tyre marks on the road was consistent with the finding of the trial judge that Mr Clark had little opportunity to see the appellant's vehicle before impact. It was also submitted that the intersection was apparently in a built-up area and that there was a clear view each way, again providing maximum circumstances for the driver of the other vehicle to see the appellant's vehicle. Of these matters, probably the most important relied upon was the fact that there was a clear view of the intersection each way. It was submitted that given this clear view Mr Clark could not have been keeping a proper lookout, as if he had, he would have been able to see the appellant. This submission fails to take into account, however, the findings of the trial judge that although there was no evidence that Mr Clark had taken evasive action and therefore must not have seen the appellant's vehicle, his statement to Constable Hannon indicated that he did not have time to take evasive action. This conclusion, as his Honour found, was supported by Constable Hannon's sketch of the accident, which showed the position of the vehicles at the point of impact. The sketch had the rear of the appellant's vehicle still located in Oxide Street such that at the point of collision, it had only just entered the intersection. In those circumstances, given the point of impact as depicted by Constable Hannon in the traffic accident report, his Honour's conclusion that he had no opportunity to avoid the accident was clearly open to him and this case does not fall within the principles enunciated by the court in Sibley v Kais. It was simply a case properly determined on its facts whereby the appellant entered the intersection at such a point that the driver of the other vehicle was not able to avoid the collision. In my opinion no appealable error has been shown and the appeal should be dismissed with costs. 4 UNREPORTED JUDGMENTS Handley JA I agree. Stein JA I also agree. HANDLEY JA: The orders of the court are as announced by Justice Beazley. 5 Appeal dismissed with costs. Counsel for the Appellant: J C Stewart Solicitors for the Appellant: Andrew Fegent & CoCounsel for the Respondent: G Laughton/J Conway Solicitors for the Respondent: R J Walters203040