SKIPPER v. BOERTIEN [1999] NSWCA 220

New South Wales Court of Appeal CITATION : SKIPPER v. BOERTIEN [1999] NSWCA 220 FILE NUMBER(S) : CA 40563/97 HEARING DATE(S) : 6 November 1998 JUDGMENT DATE : 30 August 1999

PARTIES : GREGORY STEPHEN SKIPPER (Appellant) FREDERICK BOERTIEN (Respondent) JUDGMENT OF : Handley JA at 1; Powell JA at 2; Beazley JA at 45

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : CLD 11971/93 LOWER COURT JUDICIAL OFFICER : Newman J

COUNSEL : B. J. Gross QC and L.T. Grey (Appellant) D.F. Rofe QC and M.B. Williams (Respondent) SOLICITORS : Carroll & O'Dea (Appellant) Malcolm Johns & Company (Respondent) CATCHWORDS : NEGLIGENCE - Motor vehicle accident - Collision with cyclist - Whether cyclist on wrong side of carriageway or riding from footpath into path of oncoming car - Whether driver of car keeping proper look-out - No question of principle involved DECISION : Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40563/97 CLD 11971/93

HANDLEY JA POWELL JA BEAZLEY JA

30 August 1999

SKIPPER v. BOERTIEN

JUDGMENT

1 HANDLEY JA: I agree with Powell JA.

2 POWELL JA: This is an appeal from a Judgment delivered, and orders made, by Newman J on 7 August 1997 when he dismissed with costs the proceedings which had been brought by the Appellant seeking to recover damages for personal injuries suffered by him when the bicycle which he was riding came into collision with a motor vehicle then being driven by the Respondent on 5 August 1992. 3 As will appear from what follows in the course of this Judgment, the principal question for determination on the appeal is whether this is one of those rare cases in which, although it is clear that the conclusion to which Newman J came upon the question of liability depended in no small measure upon the view which he took as to the credibility, on the one hand, of the principal witness called on behalf of the Appellant, and, on the other, the view which he took as to the credibility of the Respondent as a witness, this Court should, in the circumstances and, after considering the probabilities as to such facts as may be in issue, differ from the conclusion reached by Newman J. 4 As the authorities - most recently Abalos v. Australian Postal Commission (1990) 171 CLR 167 and Devries v. Australian National Railways Commission (1992-1993) 177 CLR 472 - make clear, while - the appeal to this Court being by way of re-hearing - it is the duty of this Court to set aside a challenged finding of fact which is shown to be wrong - to determine which this Court must weigh conflicting evidence and draw its own inferences and conclusions - as a general rule, findings of fact by a trial judge, based upon the credibility of witnesses, must stand unless it can be shown that the trial judge has failed to use, or has palpably misused, his advantage, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable. This is particularly so in a case in which either story told in the witness box might be true, in which the probabilities and possibilities are fairly evenly balanced and in which the personal motives of the parties and their witnesses might well affect their testimony. 5 At the time of the accident in August 1992, the Appellant was some two months short of his sixteenth birthday. At the time he was living with his sister and brother-in-law at their home in South Windsor, his parents being then separated and, perhaps, divorced. The Appellant had left school in May 1992 - seemingly because he was a poor student and had learning difficulties - and, one assumes, without having obtained the School Certificate. When he left school, the Appellant worked for a time for his brother-in-law, who then had a pizza parlour, known as "Ronnies Pizza House" which was situated in George Street, South Windsor. It would, however, seem that, at some time prior to the beginning of August 1992, the Appellant and his brother-in-law had a disagreement and the Appellant ceased to work at the pizza parlour. Thereafter, so it seems, the Appellant worked for a short time in a furniture factory in South Windsor but, as it seems, at the time of the accident he was unemployed. 6 The accident from which the Appellant sustained his injuries occurred in George Street, Windsor. George Street, which is the main commercial street in Windsor, runs from North-East to South-West to South Windsor. George Street is 20.32 metres (66 feet) wide, the carriageway being 12.8 metres (42 feet) in width and the footpath area on each side 3.66 metres (12 feet) in width. At the South-Western end of the main shopping centre George Street is crossed by Richmond Road which runs from Macquarie Street - which is to the East of George Street and parallel with George Street, Richmond Road proceeding in a West-North-Westerly direction past the Hawkesbury Showground and Race Course, which is to the South, and the Richmond RAAF Base, which is to the North, to the town of Richmond. At the intersection of Richmond Road and George Street traffic lights had been installed to control traffic. 7 To the South-West of the intersection of George Street and Richmond Road the development is mixed, there being both commercial and residential properties. 8 Commencing at the South-Western corner of the intersection with Richmond Road, the Western side of George Street for a distance of approximately 120 metres (396 feet) is occupied, first, by a motor repair workshop and car sales yard known as "Kev John Motors", which appears to have a frontage to George Street of approximately 80 metres (264 feet), then by a brick cottage, No. 397 and two weatherboard cottages Nos. 399 and 401, each of which appears to have a frontage of about 13.4 metres (44 feet) to George Street, the three cottages thus having a total frontage to George Street of approximately 40 metres (132 feet). 9 Along the Western kerb of George Street over the distance of 120 metres to which I have referred, there are a number of vehicle crossings of which, for present purposes, one needs to note only two. At the Northern boundary of No. 397 George Street there is a single crossing which appears to be about 3.5 metres (12 feet) in width at the kerb's edge. At the common boundary between No. 399 and No. 401 George Street there is a double crossing which appears to be about 7 metres (24 feet) in width at the kerb edge. 10 Certain other features should also be noted. Immediately to the North of the Northern boundary of No. 397 George Street and on what might be called the footpath reserve outside the South-Western boundary of the car yard is what is has been described as an electricity box - possibly a "step down transformer". Opposite that electricity box and adjacent to the kerb and the vehicle crossing outside No. 397 George Street is an electricity and light pole. Adjoining the kerb and at the Southern edge of the vehicle crossing outside Nos. 399 and 401 George Street is an electricity pole. 11 The development on the Eastern side of George Street to the South-West of the intersection with Richmond Road is similarly mixed. Running South-West from the South-Eastern corner of the intersection for a distance of what appears to be about 80 metres (approximately 260 feet) is what has been described as "a small cemetery". Adjoining the South-Western boundary of the cemetery is a single storey brick building, which appears to have a frontage of about 9 metres (30 feet) to George Street which building houses, in the Northern part, a laundromat and, in the Southern part, a butchery - that building faces the Southern part of the car yard across the street. To the South-West of that building is a narrow passage which is joined on its South-Western side by a two storey building having a frontage of about 9 metres (30 feet) to George Street, which building houses, at the ground floor level, a general store and, on the upper level, a number of residential flats. That building faces the boundary between the car yard and No. 397 George Street across the street. To the South-West of that building is a somewhat wider passage to the South-West of which is a weatherboard cottage, "Dawnford", No. 396 George Street which has a frontage of about 18 metres (approximately 60 feet) to George Street. That cottage faces the Southern half of No. 397, and the cottage known as No. 399, George Street across the street. Adjoining the passage on its South-Western boundary and at the street frontage of "Dawnford" is what appears to be a stone pillar about a metre high (see Exhibit G Blue AB 11; Exhibit 17 photograph D1 Blue AB 100). 12 On the Western side of George Street to the South-West of No. 401 appear to be a number of cottages and several two-storey commercial buildings (see Exhibit 17, photographs D9, D15 Blue AB 108, 114) while on the Eastern side of George Street to the South West of "Dawnford" development appears for the most part to be residential cottages. 13 Further to the South West again, George Street passes under a bridge carrying the railway line to Windsor Railway Station which is nearby. Beyond the railway line there would appear to be a group of shops at South Windsor. The Appellant's sister's home appears to have been beyond those shops. 14 On the morning of 5 August 1992, the Appellant left his sister's home near the South Windsor shops to go to the Windsor office of the Department of Social Security ("the DSS") which is in George Street to the North of the intersection of George Street and Richmond Road, apparently to make inquiries as to "the young homeless allowance" (Black AB 4). When he did so he rode a bicycle which he had apparently borrowed from an uncle a day or two earlier. Although when he went to the DSS office the Appellant - so he said - was unaccompanied, while he was waiting to be attended to, he was joined by his friend, Jason Wilson, who appears also to have ridden a bicycle to the office. 15 The Appellant and Jason Wilson appear to have left the DSS office at about 12.30 p.m. intending to go to the Appellant's sister's home. After they left the office of the Department of Social Security the Appellant and Jason Wilson cycled down George Street - in this area George Street slopes downhill to the South West - in the direction of South Windsor, the Appellant travelling on the Western footpath but Mr. Wilson travelling on the Eastern side of the carriageway. 16 Since the Appellant has virtually no recollection of what occurred between the time when he crossed Richmond Road until he recovered consciousness after the accident and while being taken by ambulance to the hospital, the primary case in negligence which the Appellant sought to advance at trial depended almost entirely upon the acceptability of the evidence given by Mr. Wilson as to what then occurred. 17 Although it is not entirely clear that this was so, the Appellant's evidence (Black AB 5-6) would suggest that, when he reached the intersection of George Street and Richmond Road, he stopped his bicycle, dismounted and, after checking for traffic walked across the road pushing his bicycle, not mounting his bicycle until he reached the other side where he rode up onto the footpath on the Western side of George Street. The Appellant's evidence would also suggest that, after he had crossed Richmond Road, Jason Wilson rode his bicycle up onto the footpath on the Eastern side of George Street and proceeded South along that footpath. The Appellant's evidence also was that the last recollection he had was of Jason Wilson apparently seated on his bicycle leaning against the stone pillar at the boundary of the passage beyond the general store and "Dawnford". 18 Jason Wilson's evidence in chief (Black AB 43-48) was to the effect that he crossed Richmond Road ahead of the Appellant - and he did not see him cross-over - and having done so, cycled down the Eastern footpath of George Street - which at that point appears to have sloped slightly away to the South-West - until he reached the stone pillar on the boundary between the passage and "Dawnford" at which point he stopped his bicycle and, although remaining seated on it, lent against the pillar. When he did so, so Jason Wilson said, he looked over his shoulder to see where the Appellant was and saw the Appellant riding his bicycle from the footpath on a diagonal track across a driveway and onto the road. Shown a number of photographs which formed Exhibit B, Jason Wilson identified, by reference to Exhibit B2 (Blue AB 1), the driveway and vehicle crossing at the Northern boundary of No. 397 George Street. 19 Jason Wilson's evidence in chief then continued (Black AB 45-46): "Q. All right. Then, when Greg rode down onto the road, what did you see next? A. After he left the footpath he came diagonally to the road. At that point in time I seen him and out of the corner of my eye a red car, and Greg turning back off the road slightly swerving towards the road to avoid the red car and at that time I looked forward again. Q. And then what did you do? A. I started to proceed along the fence, hauled myself up with one hand and just pushing along. Q. What is the next thing that you heard or saw? A. At that point I heard an impact and I looked back, I rested against the fence again and looked back and saw Greg coming on the red car. He was there. Q. Before you heard an impact, or what sounded like an impact, did you hear any other noise at all? A. There was a squealing of tyres. Q. And when you looked across and saw Greg on the car, are you able to place where the car was? A. No, no."