Rich v Warburton [1999] NSWCA 174

New South Wales Court of Appeal CITATION : Rich v Warburton [1999] NSWCA 174 FILE NUMBER(S) : CA 40027/98 HEARING DATE(S) : 23 March 1999 JUDGMENT DATE : 10 June 1999

PARTIES : Vickie Michelle RICH v Malcolm WARBURTON JUDGMENT OF : Meagher JA at 1; Handley JA at 17; Beazley JA at 18

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 430/94 at Penrith LOWER COURT JUDICIAL OFFICER : Delaney ADCJ

COUNSEL : Appellant: C.E. O'Connor QC/E. Romanuik Respondent: D. S. Timmins SOLICITORS : Appellant: A O Ellison & Co Respondent: Timmins & Partners CATCHWORDS : Negligence - motor vehicle accident - finding below inconsistent with facts incontrovertibly established by objective evidence. CASES CITED: Devries v Australian National Railway Commission (1993) 177 CLR 472. DECISION : Appeal allowed; Orders and verdict below set aside; In lieu thereof, judgment and verdict for the defendant; Order respondent to pay appellant's costs and to have an order under the Suitors Fund Act if otherwise entitled.

- 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA: 40027/98 DC: 430/94

MEAGHER JA HANDLEY JA BEAZLEY JA

Thursday, 10 June 1999. Vickie Michelle RICH v Malcolm WARBURTON JUDGMENT

1 MEAGHER JA: On 11 July 1993 the plaintiff, Mr Warburton, was travelling north down a hill going towards Wiseman's Ferry. He was riding a motor bike. The appellant/defendant, Mrs Rich, was travelling in the opposite direction driving her utility. The two vehicles collided. The plaintiff (the present respondent) sued the appellant, and obtained from Delaney ADCJ a verdict of $55,696.28. As might be surmised his Honour expressed a belief in the plaintiff's story, and that belief was founded, at least partially, on the plaintiff's credibility. The defendant appeals. 2 At first blush, one would have thought the appeal was hopeless. Yet Mr O'Connor QC, learned senior counsel for the appellant, recognizing the difficulties in his path, submitted that his Honour's finding was "inconsistent with facts incontrovertibly established" by objective evidence: Devries v Australian National Railway Commission (1993) 177 CLR 472 at 479. 3 His Honour said: "The plaintiff gave evidence that he was riding his motorcycle approaching a right hand bend of the road when he saw a wheel coming towards him from the opposite side of the road. A collision occurred between the Plaintiff's motorcycle and the Defendant's utility whose wheel it was that the Plaintiff had first seen. During the course of this cross examination the Plaintiff said, and I accept as a fact, that he believed that he saw the utility come onto the incorrect side of the road at the relevant time immediately before the collision, although to a minor degree." 4 His Honour said: "The defendant gave evidence that she was at all material times immediately before the collision adjacent to a white lane line which was painted adjacent to the gutter on the left hand side of the road, that is at the near side of her vehicle, and that she was never close to the middle of the road or the middle line at any stage. Mr Finnane referred me to the objective evidence, being photographs, which were taken of the scene and the marks placed thereon by various witnesses during the course of the trial which showed an area of alleged petrol leakage which Mr Finnane submitted was indicative of the fact that at the time of the collision the motorcycle was on its incorrect side of the roadway. At the risk of repeating myself there is no doubt that the evidence of the Defendant, whereby she maintained that her position on the roadway was adjacent to the left hand side of the road rather than near the centre line, is not only inconsistent and at odds with the evidence of the Plaintiff but is also in my opinion at odds with and inconsistent with the physical evidence set out in the photographs which became exhibits in this case." 5 His Honour said: "However, having regard to the evidence to which I have referred to previously I am satisfied on the balance of probabilities the Defendant failed to keep a proper look out as to where her vehicle was on the roadway and in fact did as the Plaintiff suggested, in his evidence in answer to Mr Finnane, come onto the incorrect side of the roadway with her off side front wheel of her vehicle. I am satisfied that seeing this occurring the Plaintiff took evasive action which of course then resulted in the collision occurring. After considering the evidence where the Defendant's version of the accident conflicts with that of the Plaintiff's reject the Defendant's evidence as to the position on the roadway. I find that her recollection of the accident is faulty and I formed the impression during the course of her evidence that she was endeavouring to reconstruct the incident to indicate her position on the roadway which was different to that which in reality was on the day of the accident." 6 His Honour said: I accept the evidence of the Plaintiff as to the position of the two vehicles at the time of impact, namely the Defendant was on the incorrect side of the roadway. Having made that finding and the finding that I have about the evidence of the Defendant, I find that the Defendant was negligent in the way in which she drove her vehicle in that she failed to steer the vehicle properly to keep it within her own lane and failed to keep a proper look out for other vehicles on the roadway to be able to avoid them when she had so failed to properly steer her vehicle. There will be a verdict on liability for the Plaintiff." 7 In summary, his Honour held that the defendant's evidence was inconsistent with the physical evidence, and was therefore a reconstruction. 8 The "physical" or "objective" evidence consisted mainly of photographs taken very closely to the time of the collision. They show a single skid mark created by the respondent's motorcycle protruding across the centre line onto his incorrect side of the lane. Significantly, there appears to be no issue that the skid mark "terminated about one foot over the centre". The skid mark was about four metres in length and terminated near the debris of the motorcycle (which had not been removed or tampered with before the photographs were taken). 9 In these circumstances I cannot see how on the balance of probabilities one can conclude otherwise than that the collision occurred on the plaintiff's wrong side of the road. 10 The respondent did not really dispute any of this. He submitted it was irrelevant on which side of the road the collision occurred. He submitted that the critical matter was really not where the skid mark ended, but where it began. He said that the plaintiff's version was that the defendant came over to her wrong side of the road, which frightened him, even though she went back to her correct side; and that in his fright he went into an uncontrollable skid, ending up on his wrong side. 11 However, the difficulty with accepting this submission, attractive as it may be, is that it is not the case which the plaintiff presented to the Court. It was never put to the defendant in cross-examination. It did not concern his Honour, who was clearly under the impression that all which mattered was where the collision occurred. 12 In my view, therefore, the appropriate orders are: 13 Appeal allowed; 14 Orders and verdict below set aside; 15 In lieu thereof, judgment and verdict for the defendant; 16 Order in respondent to pay the appellant's costs and to have an order under the Suitor's Fund Act if otherwise entitled. 17 HANDLEY JA: I agree with Meagher JA. 18 BEAZLEY JA: I agree with Meagher JA.