New South Wales Court of Appeal CITATION : PAGONIS v McKENZIE & ANOR [1999] NSWCA 78 FILE NUMBER(S) : CA 40192/98 HEARING DATE(S) : 25 March 1999 JUDGMENT DATE : 25 March 1999 PARTIES : Elpiniki Pagonis v John McKenzie and K & S Freighters Pty Limited JUDGMENT OF : Priestley JA at 1; Giles JA at 48; Fitzgerald JA at 49 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 3100/95 LOWER COURT JUDICIAL OFFICER : His Honour Judge Mahoney COUNSEL : Appellant - Dr A. Morrison SC / J. Keesing Respondents - L. King SC SOLICITORS : Appellant - Milicevic Solicitors Respondents - Ferguson Holz CATCHWORDS : Motor vehicle accident; Personal injury; verdict for defendant; liability. DECISION : New trial ordered. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40192/98 DC 3100/95 PRIESTLEY JA GILES JA FITZGERALD JA Thursday, 25 March 1999 PAGONIS v McKENZIE 1 PRIESTLEY JA: The appellant was the unsuccessful plaintiff in a District Court action against the driver, the first defendant, and the owner, the second defendant, of a semi-trailer which collided with the rear of the small Mazda car she was driving in Parramatta Road Sydney on 2 June 1993. The trial of the action was before his Honour Judge Mahoney. 2 The plaintiff's case was that immediately before the collision she had been driving west in Parramatta Road in the kerbside lane of three lanes going west and called in the trial, lane 1; she came over a rise, which in the evidence was indicated as a fairly small rise, and began to descend towards an intersection, which the evidence revealed was a street called John Street at which there were traffic lights and before which there was a minor road coming into Parramatta Road on the left of drivers going west and forming a T-intersection with Parramatta Road. In her evidence she described what happened next: "Q. Did you become aware of something on the roadway? A. Yes there was signs saying that the lane that I was in was actually ending and to start merging to the middle lane in Parramatta Road and there were witches hats and so forth going all the way up Parramatta Road and you can see that coming down the decline on Parramatta Road there. Q. When you became aware of those signs and those witches hats did you do anything with respect to the controls of your vehicle? A. Well I indicated that I was going to change lanes and yeah I proceeded to - I looked in my rear view mirror and looked behind my shoulder on my right hand side and changed lanes into my middle lane. Q. At about the time that you changed lanes what speed were you going? A. It was probably, it wasn't fast because everything was slowing down so probably twenty to thirty ks. Q. Before you changed lanes when you looked around and looked in your rear vision mirror did you see any vehicles in lane 2? A. Yeah. There was a semi-trailer in lane 2 which was about twenty to thirty metres behind me at the time. Q. Are you very good at distances? A. Not really. " 3 A little later the plaintiff was asked: "Q. After you changed into the middle lane what happened? A. I changed into the middle lane and I was in the middle lane for about twenty metres driving along and the traffic was-- Q. What speed were you driving? A. About thirty, twenty to thirty. Q. What was the traffic conditions in front of you? A. All the cars were slowing down because of the lane change. There wasn't anyone directly in front of me, but they were slowing down. Q. Well was it heavy traffic at that point? A. It was getting that way, yes. Q. After you changed into lane 2 about what speed were you doing? A. It was probably twenty ks by then. Q. After you changed into lane 2 were you maintaining a constant speed, accelerating or decelerating? A. Decelerating. Q. You've said that you travelled about twenty metres in lane 2? A. Mm. Q. What happened? A. Well the next thing I knew there was this big bang behind me and I turned around and I'd been hit by this semi-trailer and all I could see were the bull bars and he hit me and I just put my brakes on as an automatic thing. I thought he'd stop. He hit me and I got pushed up a little bit and then he hit me again and that happened a number of times; it happened three times all up and then he pushed approximately sixty, seventy metres up the road, up near the intersection where Frances Street was and then because I was getting pushed up the car turned around and hit the side of my car as well and that's when he stopped. Q. When you say 'pushed up' do you mean that his semi-trailer was in constant contact with your vehicle? A. After the third hit it was in constant contact. " 4 A little later in her evidence she described what happened after she and the first defendant got out of their vehicles. She mentioned that there were some RTA employees working near where the vehicles had come to a stop, one of whom came up to her. "Did you have a conversation with him?" she was asked. She said yes. She was then allowed to tell of the conversation: "Q. What happened next? A. The truck driver came out and spoke to me and said he never saw me all the way that he was hitting me. He claimed he never saw me and then Colin Wilson, who was one of the gangers, who was the leader of the gangers there on the road came up and gave me a card and said that he saw what had happened and if I needed some help or a witness that to give him a call and he put his home number and his work number on there for me." 5 That was the material part of the plaintiff's evidence in chief concerning the accident. There was considerable evidence given about her injuries and their development and progress after the accident. 6 In cross-examination she was asked a number of questions about her account of the way the accident happened, none of which caused her to vary from her account. It was put to her by cross-examining counsel: "What really happened isn't it is that you came upon these witches hats suddenly and changed lanes suddenly and without warning? A. No it happened as I said it." 7 The cross-examiner had thus made it plain that the defendants' case was that the plaintiff's account was incorrect and the accident was caused by a sudden move by her from the first lane into the second lane. 8 The next witness called was Mr Wilson, who had been the ganger who spoke to the plaintiff and gave her his card. He was the man who was in charge of the group of workmen who were working in the area of the intersection of Frances Street with Parramatta Road. It was his responsibility to set up the signs which would divert traffic from lane 1 and make certain that workmen in his charge would be safe in their work at and about lane 1 on the corner of Frances Street and Parramatta Road. 9 He said that in order to make conditions for his workers safe, before work began he had to take steps and did take steps to block part of Parramatta Road. He did it and supervised his workers doing it. First, 1,000 metres from the job they put up a sign "road works ahead"; he was speaking about 1,000 metres to the east of the job, which was on the corner of Frances Street and Parramatta Road, that sign was facing the west bound traffic, which included the plaintiff's car and the defendants' semi-trailer. 10 Then the next sign that went up was "workmen ahead", approximately 800 metres from the job. After that, there was a sign, "flagman ahead" and then a sign, "prepare to stop". 11 Then within 150 to 200 metres of the work place he said he started a taper which is more or less self-explanatory, but was also explained by the evidence he subsequently gave. The taper began 200 to 150 metres from the actual work site. At the beginning of the taper, a sign was erected saying "lane closed, merge right". Then there were barrier boards with chevrons directing the traffic to the right hand side of the road. Further along was another sign saying "merge right" and then about ten metres from the beginning of the job area the complete lane 1 was blocked off so that the work could proceed. Then on the western side of the site of the work, there was a sign mounted on a truck, "end of road works", and then the traffic went back to three lanes. 12 He also said that in marking out the taper, witches hats were used and also what were called, in this particular trade, candy sticks. These were tall tubes or cylinders, red in colour, with white reflectors on their top and reflective tape around the cone. 13 After he described the signage arrangements, Mr Wilson then said he had seen events related to the collision between the plaintiff's car and the semi-trailer. "Q. What did you see? A. What appeared to me as a semi-trailer pushing a small red car along the centre carriageway," and he said that was about sixty to 100 metres away from him when he first saw it. A little later he was asked where the vehicles were in relation to the taper when he first saw them and he said about halfway along the taper. He also said that when he first saw the vehicles the Mazda, which he thought was being pushed by the semi-trailer, was wholly within lane 2, not at any angle to lane 2, but directly in lane 2. He said that the two vehicles came up level with the gang truck which was at the end of the job as earlier described and which would have been twenty metres on the western side of Frances Street in lane 1. The two vehicles went past him there and then he was asked: " Q. Were you able to see the two vehicles as they went past you? A. Yes sir, yes. Q. What was the situation with respect to the front of the semi and the rear of the Mazda? A. The bumper bar of the semi was on the back, on the, level with the tail lights on the Mazda, just touching. " 14 Then he said after they had gone past him the vehicles both stopped. He was asked about a conversation with the truck driver and his answer was that the truck driver "said to me that the lady cut in front of her." (The transcript contains a note by the court reporter that " her " is the word the witness used.) " Q. And what did you say? A. I said, 'No, she was in front of you all the time'. " 15 In cross-examination he agreed that he would not have been able to see from where he was standing as the vehicles were approaching him whether they were in contact or whether there was some distance such as a third or half a metre between them. This was an answer he gave after he had repeated to the cross-examiner that it had appeared to him that the small vehicle was being pushed by the big vehicle. 16 The next witness to give direct evidence of how the accident happened was the first defendant. In examination in chief he described how he was travelling west in Parramatta Road and how, after going through a set of traffic lights, he could see traffic lights ahead which were turning red and changing with the traffic banking up, stopping and starting. (Those lights must have been the lights at the intersection of Parramatta Road and John Street.) Then, asked to give his account of the accident he said: "And roughly I'd say 100 metres back from John Street lights the red Mazda came in from the left hand lane and cut in front of me and that's when we collided. Q. Did you do something when you noticed the red Mazda changing lanes? A. Yes I was only moving slow but I applied all brakes and pulled up almost instantly. " 17 In cross-examination he agreed that his semi-trailer with its high cabin gave him excellent vision and that as he was going along Parramatta Road he had been able to see all lanes with clear vision. Then he was asked these questions and gave these answers: "Q. On this particular day after you left the lights and you started proceeding down the hill were you aware of any signs? A. No I wasn't aware of any signs. Q. On this particular day after you left the intersection with the traffic lights did you see any witches hats on the road? A. No I did not. Q. Did you see any cones? A. No. Q. Did you see lollipop sticks, did you see any of those on the road? A. No I did not. Q. Did you see any signs indicating that one lane was closed? A. No there was no such signs there to my knowledge. Q. You had a clear view, you say there were no signs is that the case? A. That's what I'm saying yes. Q. Do you say that lane 1 was not closed to traffic after the set of traffic lights? A. I seen no signs to that nature no. " 18 Again later in the cross-examination he was asked: "Q. Also what I am putting to you is this that to the east of that street lane 1 was blocked for west bound traffic? A. I never seen anything saying the lane was blocked." 19 A little later in the cross-examination counsel continued to pursue this theme and the first defendant answered again: "I never seen any witches hats there saying that. Q. The Mazda changed lanes from lane 1 to lane 2 while coming down that hill...what do you say to that? A. No. " 20 Then various aspects of the plaintiff's case were put to him and he denied each of them. One of the specific things put to him was that his truck had collided with the Mazda on a second occasion and he denied that. 21 The last witness called who gave direct evidence relevant to the collision was Mr Woodward. He had been driving a car in lane 3, slightly behind the first defendant's semi-trailer in lane 2, immediately before the collision. He did not see the first impact. He heard something and then he looked and his evidence proceeded: "Q. What was the first thing you noticed in relation to the accident? A. The semi-trailer beside me which was the middle of our three lanes and a crash hit a car, heard a noise and looked up, looked across and the truck was hitting a little red car." 22 I omit one question. Next question: "Q. What was it you saw when you looked? A. The semi-trailer was hitting the back of the small car." 23 He said the speed of the semi-trailer was thirty or so ks an hour. He was then asked: "Q. How many times did they come into collision? A. Once or twice it was, not very often, once I thought, once or twice." 24 That was the bulk of his evidence, except that in cross-examination he was asked a question which was not objected to. "Q. From what you were able to observe, the semi-trailer or driver of the semi-trailer caused the accident isn't that the case? A. Well he hit the back of the car, yes. Whether he caused it or not, I don't know." 25 Then he was asked what distance the semi trailer travelled from the time he heard the noise which caused him to look at the semi-trailer, to the point where the vehicle stopped. He replied that he thought it was twenty or thirty metres, something like that. He was then asked questions which had the effect of possibly unsettling that answer to some extent. 26 The foregoing summary of and extracts from the evidence are what seem to me to be the main material features of the evidence about how the accident happened. 27 When the trial judge came to give his reasons for judgment he summarised the evidence in much the same way I have done, although with less direct quotation and perhaps a little more briefly. Then he considered the damage to the Mazda which he said was minor and not consistent with a semi-trailer having pushed the Mazda for any appreciable distance along the road. 28 Having mentioned that, he then considered the plaintiff's evidence in general. He set out a number of features of it, concerning her injury and the treatment of her injury after the accident, which in his view indicated that she was exaggerating the consequences of what had happened to her in the accident. His conclusion was that she had been seeking to pitch her damages claim at an unrealistically high level and he thought that her credit was affected by the way in which she gave evidence on the medical side of her case. 29 He then referred again to his difficulty in accepting the Mazda had been pushed as far as the plaintiff had said. Had it been pushed that distance his view was that it would have been more significantly damaged than it had been. At that point in his reasons, he turned to the question of how the accident occurred. He began by saying that he did not accept that he had a reliable and unvarnished account of the accident from the plaintiff. Then he immediately went to a principal finding in the case. He said: "I am satisfied that the entry of the plaintiff's vehicle into the middle lane was sudden and caught the first defendant by surprise. I am satisfied that, as he began to brake to avoid the Mazda, the semi-trailer collided with some part of it and that, as they both slowed down, there were more impacts." 30 He added that he was satisfied none of the impacts was severe. After considering the evidence of Mr Wilson and Mr Woodward, he concluded: "I find that the movement of the Mazda from the kerbside lane to the middle lane probably had been preceded by the plaintiff activating her right turn signal lights but that she failed to make the movement from the one lane to the other with safety. In short she barged into the middle lane when the tapering off of the kerbside lane no longer allowed her to travel in that lane. She had seen the semi-trailer before she operated her turning light. Although she claims she had room to change lanes safely in front of the truck, her estimate of its distance back, made with the aid of her rear vision mirror in the first place may have been incorrect. In any event, she changed lanes when it was not safe to do so. This was the first defendant's description to Mr Wilson at the scene and, after considering all of the evidence, I am satisfied that what he said at the time was quite correct. The plaintiff relied on the blinking of her rear offside turning indicator light to ensure her a right of free passage into the middle lane. She was not entitled to expect that traffic in the middle lane would or could yield right of passage to her when she made her move." 31 One aspect of the passage that I have just read is that the trial judge accepted that the defendant's description to Mr Wilson at the scene was quite correct. He did not refer to the fact that Mr Wilson had immediately contradicted the first defendant when he said that and indicated that his own view of what had happened was quite different. 32 There are two main aspects of the evidence that I will mention in considering whether the appeal should be upheld. The first is that although the trial judge generally accepted the first defendant's evidence, he did remark that he had been in error in regard to some matters. Presumably, one of these matters was the first defendant's statement that he had applied his brakes and pulled up almost instantly after hitting the Mazda and, according to his evidence, hitting the Mazda only once. 33 The plaintiff gave quite a different account of the length of time between the first collision and the eventual coming to rest of the two vehicles. The trial judge was not prepared to accept her account. However, Mr Wilson gave a substantially similar account and the trial judge said in dealing with Mr Wilson's evidence that it was fair and honest but in some respects in error. He said that the semi-trailer had not pushed the Mazda over the whole distance that Mr Wilson watched. However, he went on to say that when considering what Mr Woodward had said about the distance that had been taken up between the first collision and coming to rest, that he probably underestimated the distance and that the distance would have been closer to Mr Wilson's estimate. 34 Then Mr Woodward's evidence again was in a general sense corroborative of the accounts of the plaintiff and Mr Wilson. The main feature of those accounts is that the two vehicles proceeded for some significant distance after the first impact whereas the first defendant had said that he had stopped almost instantly. 35 The fact that the trial judge did not accept the plaintiff's version of this aspect of the case did not, in my opinion, excuse him from giving weight or considering what weight he should give to the matter of the distance travelled by the vehicles after the first collision. That is because two independent witnesses gave evidence which, at least to some extent, was to the same effect as the plaintiff's and perhaps more importantly quite significantly contradicted that of the first defendant. 36 This is a matter of some importance because if the Mazda had been pushed as far as the plaintiff said or as far as Mr Wilson thought or even as far as Mr Woodward had thought, that fact would have been strongly supportive of the plaintiff's initial statement immediately after the accident that the first defendant simply had not been watching what was happening in front of him, and, (here I am paraphrasing her to some extent) had not been aware for some time that his vehicle had been in contact with hers. This would support the case quite certainly of the first defendant not having kept a proper lookout immediately before the accident. 37 This feature of the case is, by itself, probably not enough to justify interference with his Honour's judgment but it adds weight to the other (and more important) matter that I said I would be dealing with, which in my view is of quite significant importance in the case. That is, the first defendant's evidence that he was unaware at any time before the accident of the signage, or the tapering, or the merge sign, in the first lane. In conditions such as those in Parramatta Road at the time of the accident, with traffic in all lanes, drivers for their own self-preservation and for the safety of other drivers near them, need to keep some sort of an eye on what is happening in the lanes adjacent to them. The first defendant had a clear vision, according to his own evidence, ahead. There was no reason at all why in the ordinary course of ordinarily reasonable driving he would not have become aware of the position concerning the first lane, that is, that it was going to run out and be blocked, and that there would be traffic wishing to move from lane 1 into lane 2. 38 To me it seems that on the evidence before the trial judge a very strong inference was open to be drawn by him from the evidence that the first defendant's not having been aware of the traffic conditions in the first lane indicated that he was not paying proper attention to traffic conditions around him, or in the conventional terms, not keeping a proper lookout as he was driving along in lane 2. 39 I would wish to make it clear that in what I am saying at the moment I am not myself making or intending to make any factual finding about the cause of the accident. The point of what I have been saying is that the question of the traffic conditions in the first lane and the first defendant's awareness or unawareness of them was a very material matter for the trial judge to consider in deciding what contributed to the happening of this accident. 40 The trial judge did not give it any consideration. As far as I can see he did not at any stage mention in his reasons the question whether the first defendant should have been aware of the conditions in lane 1 and the consequences if he had not been aware of them. In the first of the findings that I earlier read out from his reasons, he simply said: "I am satisfied that the entry of the plaintiff's vehicle into the middle lane was sudden and caught the first defendant by surprise." 41 I doubt whether this Court is in a position to substitute any finding of fact of its own for that finding of the trial judge but, in my opinion, that finding although helpful for the defendants does not conclude the case in their favour. It is quite consistent with the entry of the plaintiff's vehicle into lane 2 being sudden and catching the first defendant by surprise that his surprise arose from the fact that he was not keeping a proper lookout. Had that been considered and so found, the judge could well have found in favour of the plaintiff on the question of negligence, although he would then have had to consider very seriously the question of contributory negligence on the part of the plaintiff. However, he did not take that course of reasoning, at least in the reasons as expressed. 42 Then in the second of the passages that I read earlier from the trial judge's reasons, he found on the probabilities that the plaintiff had activated her right turn signal lights before she moved into lane 2. He then went on to say that she had done so without safety and that she was not entitled to expect that other vehicles would give way to her. But again, that does not necessarily end the case in favour of the defendants. Had the first defendant been keeping a proper lookout, then it would seem probable also that he would have noticed the plaintiff's right turn signal lights. It would then have been a real question for the Court to consider whether the first defendant, in not noticing them, and not noticing the plaintiff in her movement from lane 1 to lane 2, following upon the signage which would indicate that vehicles would be wishing to move from lane 1 to lane 2, was negligent. 43 It seems to me that it was incumbent upon the trial judge to consider the matters that I have been referring to relating to the traffic conditions in lane 1 and then to explain what his views were in regard to whether or not the first defendant had been keeping a proper lookout in the circumstances. I do not think it is sufficient in the present case for us to deduce from what the trial judge did say that the did consider these matters and formed a view adverse to the plaintiff and in favour of the defendants. 44 The weight of the evidence in the plaintiff's case, even if her own evidence is discounted because of his Honour's doubt about her reliability, was such that it was not sufficient to make a bald finding that the judge was satisfied that the entry of the plaintiff's vehicle into the middle lane was sudden and caught the first defendant by surprise, or to support the remarks that he made later in his reasons as previously set out. 45 It seems to me that in the circumstances the plaintiff's case was not fully and adequately dealt with in the trial judge's reasons and that the shortfall in those reasons is such that the judgment should be set aside. That will entail, in the circumstances of the case, a new trial. 46 We did not ask counsel before lunch whether, if a new trial were to be ordered, it should be a new trial limited to liability or a new trial on all grounds. My own present view is that it ought to a new trial on all grounds but if anybody wants to argue against that of course we would hear them. KING: I would support that proposition your Honour. It ought to be on all grounds. PRIESTLEY JA: You would want it on all grounds? KING: I would want it on all grounds. PRIESTLEY JA: I imagine the appellant does also. KEESING: Certainly. 47 PRIESTLEY JA: In my view then the judgment below should be set aside and a new trial on all grounds ordered and the appellant should have the costs of the appeal. The costs of the first trial should abide the order of the judge hearing the second trial. 48 GILES JA: I agree. 49 FITZGERALD JA: I agree. 50 PRIESTLEY JA: The Court's orders will be as I suggested. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.