TKACIK v LEIGH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY and HANDLEY JJA and GROVE AJA 17 April 1997 [1997] NSWCA 320 NEGLIGENCE — Motor vehicle collision — conflicting versions — no preference of Trial Judge for either party on witness credibility assessment — examination of objective facts skid marks and damage to determine probable events Grove AJA The appellant sought damages for personal injuries sustained in a motor collision which occurred at about 8.30 am on Tuesday 2 March 1993. The trial judge, her Honour Judge Tupman, found a verdict for the defendant and this appeal challenges that judgment. The accident occurred in the Grand Parade, Dolls Point which is a main arterial road in the area carrying two lanes of traffic in either direction. In the relevant vicinity it runs from north to south. Although peak traffic might be expected at about that time the evidence was limited to the presence of the motor cars being driven by the appellant and the respondent respectively. Neither car was carrying a passenger and no witnesses to the accident were called. A police officer who later attended the scene conveyed statements which he took from the respective drivers. The versions of the appellant and the respondent involved a little more complication than is usually encountered in road traffic cases and the most convenient way to sketch the contest is to relate those versions. The appellant was unfamiliar with the area. She was employed by a home care service and was seeking the address 311 Grand Parade. She approached along it in a southerly direction and observed that the relevant house would be located with the odd numbers on the western side of the street. She went past 311 and turned into an intersecting street (Sandringham Street) to the south of it. She followed that street until at a convenient place in a street intersecting with it she was able to turn and retrace her path thus entering Grand Parade and travelling north towards 311. Upon arrival at what she took to be that address she made a left turn into the driveway. She discovered that she had in fact turned into the driveway of 313. She brought her vehicle entirely onto the footpath and verge adjacent to the traffic carriageway in order not to impede the city bound traffic moving north. She perceived that she was unable to move along the verge from 313 to the driveway of 311 because of the existence of the obstacles of a tree and pole. This was discovered when she moved forward to near the tree and then reversed to the driveway upon which she had entered and then forwardly re-entered the Grand Parade travelling north in the kerbside lane and made her way to the driveway of 311 and negotiated her vehicle into it slowly. When, what she estimated to be two thirds of her car was within the driveway, she suddenly felt an impact on the rear passenger's side of her car. The respondent was travelling north in Grand Parade having entered it coincidentally from Sandringham Street. She was travelling in the kerbside lane. As she approached the vicinity where numbers 313 and 311 Grand Parade were located she noticed the appellant's vehicle in front of her. It was reversing from 2 UNREPORTED JUDGMENTS a driveway near a house on the western side of the road. She saw it move across the kerbside lane in which she was travelling and wholly into the adjacent northbound traffic lane. The appellant's vehicle came to a halt and thereafter its reversing lights (which the respondent had observed) became extinguished. She concluded that the appellant had changed from reverse into a forward gear and was intending to proceed north in the northbound lane in which that vehicle was located. The respondent's vehicle continued to move northwards in the kerbside lane. When she was a short distance from the rear of the appellant's vehicle it fumed to its left towards a driveway on the western side of the carriageway proceeding across the kerbside lane in which the respondent was travelling. The respondent made an emergency application of the brakes but was unable to avoid collision. Impact occurred between the front right hand section of her vehicle and the passenger doors of the appellant's vehicle. The learned trial judge delivered a lengthy and detailed judgment. She concluded that neither party was seeking to be deliberately untruthful, although obviously the two versions could not stand together and her verdict was found upon an assessment of what she considered to be the objective evidence rather than any credit preference for either the appellant or the respondent. Specifically her Honour had available photographs showing the damage to the appellant's car which she assessed as inconsistent with a collision occurring when the appellant's car was two thirds of the way into the driveway but consistent with the respondent's version that her vehicle had collided with the passenger's side doors when the appellant's vehicle was moving across her path. In addition, skid marks left by the respondent's vehicle were found to be inconsistent with a tum by the appellant's vehicle into the driveway from the kerbside lane. The elaborations in the judgment speak for themselves. Some eight grounds of appeal were filed and sought to be extended to be thirteen, but the essential thrust of the appellant's argument entirely related to a finding of fact attributed to her Honour the consequence of which was alleged to be a tainting of her finding concerning the credibility of the respondent, at least to the extent that she treated it as equivalent to that of the appellant. There had apparently been proceedings in Sutherland Local Court and the respondent was called as a witness. Her attention was drawn to evidence given in December 1993.(The District Court trial took place in June 1996). The respondent said she did not recall much about that day but said it was obvious that she gave evidence included in a portion of transcript which was read to her. There is no need to reproduce the whole of the question incorporating the transcript, but the substance was to propose to her that when she first saw the appellant's vehicle it was already in the easterly of the two northbound lanes and her evidence also included a statement that the vehicle was stationary with its reversing lights showing. The essential difference between that material and her testimony was that it omitted her visualization of the appellant's vehicle moving across the carriageway until it assumed its stationary position in the second lane with its reversing lights. As observed, the respondent said that she did not recall what she had said at Sutherland Local Court and she said that on that day she was very nervous. In testimony she affirmed a positive recollection that she saw the appellant's vehicle reversing across the kerbside lane and into the next. Her Honour Judge Tupman referred to this material in her judgment. She said: "Tt was put to the defendant by counsel for the plaintiff, evidence that she gave to the Sutherland Local Court on an earlier occasion in 1993 in some context which the evidence does not allow me to understand. A section of the transcript URJ TKACIK v LEIGH (Priestley JA) 3 was put to her in which she agreed with the question put by the police prosecutor in which a somewhat different version of what she first saw when she rounded the corner at Sandringham Street was given on that occasion. She agreed with questions put by the prosecutor that, when she rounded the comer at Sandringham Street, the plaintiffs vehicle was stationary in lane 2, which is obviously different to the version she gave in evidence yesterday. It is suggested by the plaintiff that this inconsistency should be seen by me as affecting the defendant's credit as a witness. I do not accept that submission. The defendant's explanation for this difference, which she accepted, was that when giving evidence at Sutherland Local Court the evidence was being led from her from the police prosecutor in circumstances where she felt very nervous." Her Honour then went on to observe the leading nature of the questions that had been extracted from the transcript of the Local Court hearing. The error of fact asserted was the assumption by her Honour that the questions were then being put by a police prosecutor. There was nothing before the Court to indicate directly by whom the questions were addressed to the respondent. It is said that - given the nature of the questions - it would have been most unlikely to have been examination-in-chief, although I would point out, there appears to be no evidence as to what status the respondent had before the Local Court. The appellant's submission would suggest that she was a prosecution witness. T agree that the evidence does not demonstrate who asked the questions which were incorporated in the cross examination, but her Honour's observations about the police prosecutor seemed to me to be matters which could not have affected the judgment she reached. It is true that she made reference to the police prosecutor in connection with the respondent's nervousness on the occasion at Sutherland and the respondent's evidence was simply that she was nervous. I reject the submission that these extraneous references denote error on the part of the trial judge. The argument was developed to observe that the thrust of the cross examination about the earlier version was intended to draw a contrast between the detail recorded in the police officer's notebook as a statement from the respondent and what she said in that court, rather than between what was said in Sutherland and what was said in the District Court. The notebook entry made by the constable was in evidence. It was conventionally brief. The respondent said she saw the appellant's vehicle reverse out of a driveway into the second lane and later to pull back into lane one. I observe that this could not have been achieved without that vehicle coming to a halt. The asserted discrepancies do not relate to anything of significance. Her Honour was alert to circumstances to be acknowledged when looking at the content of short notebook statements and, indeed, in the appellant's favour she overlooked an apparent inconsistency in her statement on the basis that she must have made a mistake when speaking to the police officer. She was at hospital shocked and had received some sedation at the time. What had been recorded by the policeman was that the appellant had reversed her vehicle along the verge some two or three house blocks before entering Grand Parade and her Honour thought this so improbable that she was prepared to conclude that the inconsistency between the statement and evidence should be attributed to a mistake and should not affect the appellant's credit. The immaterial error concerning the identity of the questioner at Sutherland Local Court has been examined. I am unable to detect any material error in her Honour's approach or assessment calling for intervention by this Court. The appeal should be dismissed with costs I so propose. Priestley JA I agree. 4 UNREPORTED JUDGMENTS Handley JA I also agree. Priestley JA: The court's order is that the appeal is dismissed with costs.