Nguyen v Savage [1999] NSWCA 44

New South Wales Court of Appeal CITATION : Nguyen v Savage [1999] NSWCA 44 FILE NUMBER(S) : CA 40900/97 HEARING DATE(S) : 05/03/99 JUDGMENT DATE : 5 March 1999

PARTIES : Van Hanh Nguyen v Michael John Savage JUDGMENT OF : Beazley JA at 16; Fitzgerald JA at 1; Sheppard AJA at 10

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 8545/97 LOWER COURT JUDICIAL OFFICER : George ADCJ

COUNSEL : P Menzies QC (Appellant) M J Neil QC/G J Bellow (Respondent)) SOLICITORS : Gajic & Co (Appellant) I V Knight (Respondent) CATCHWORDS : Motor vehicle acccident; controlled intersection; trial judge entitled to find as he did. DECISION : Dismissed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40900/97 DC 8545/97 BEAZLEY JA FITZGERALD JA SHEPPARD AJA

Friday 5 March 1999

Van Hanh NGUYEN v Michael John SAVAGE

JUDGMENT

1 FITZGERALD JA: On 28 August 1992 at approximately 5 pm a collision occurred at the intersection of Watts Road and Western Road, Kemps Creek. Both roads continued through the intersection. The collision involved two vehicles, one driven by the appellant, the other by the respondent. 2 The appellant was travelling along Watts Road in a northerly direction. The respondent was travelling along Western Road in an easterly direction. At the point at which the roads intersected, the appellant's vehicle was on the right of the respondent's vehicle. 3 The appellant sued the respondent, but his action, in which he alleged that the respondent failed to give way to the vehicle on his right or to keep a proper lookout and was travelling at an excessive speed, was dismissed on 2 December 1997. 4 Effectively, the appellant's admitted negligence consisted of stopping at the intersection, moving forward, then accelerating with the respondent's vehicle clearly visible approaching the intersection and not perceptibly slowing down. Despite his clear opportunity to do so, the appellant's evidence was that he did not actually see the respondent's vehicle prior to the collision. 5 The respondent, who understood that there were signs and/or lines requiring the appellant to stop or give way, slowed down from 70 to about 60 kilometres per hour only by lifting his foot from the accelerator as he approached the intersection. He believed, correctly it seems, that the speed limit in the area was 80 kilometres per hour. 6 When the respondent was a short distance from the intersection, the appellant moved forward and accelerated and the collision occurred. The collision involved the front of the respondent's vehicle striking the side of the appellant's vehicle. 7 The appeal to this Court has been conducted by way of a challenge to the various findings upon which the trial judge held that the respondent had not been proved to be negligent by the appellant. 8 In my opinion the trial judge was entitled to find as he did and the challenge to his conclusions should not succeed. 9 There has been some doubt as to whether or not an extension of time was needed for this proceeding or whether leave to appeal was needed. If the appellant needed either an extension of time or leave to appeal I would grant those orders but dismiss the appeal with costs. 10 SHEPPARD AJA: I agree with the outcome proposed by my brother Fitzgerald. It seems to me that this is a case where his Honour clearly preferred the evidence of the respondent to that of the appellant. The respondent's evidence established in my opinion that the prevailing speed limit in the road on which he was travelling was 80 kilometres. There is not I think an express reference to that evidence by his Honour but clearly he was entitled to come to that conclusion. 11 The evidence about whether or not the intersection was controlled was confused simply because it ought to have been controlled but the give-way sign that was customarily there was not there and the line across the road was obscured because it had become faded, no doubt because of weather and other matters. 12 The critical question seems to me to be whether or not this collision which occurred at an open intersection with the vehicles in sight of each other could have happened without negligence on both their parts. That to me is the message which is to be found in the decision of the High Court in Sibley v Kais (19 ) CLR 424 at 427 but the problem in this case is that the appellant, having approached the intersection, stopped and this, on the evidence of the respondent, misled him as to what the appellant's intention was. 13 We were referred to evidence (again it is not referred to in the judgment but, as I say, his evidence was accepted) where the respondent said:- "I was heading south and as I've come in I've seen the plaintiff's car come out and I believe it stopped and then started rolling forward very slowly. At that point as I've come down probably within 100 metres I though - well, this bloke's had to have seen me - and he gave me every reason to believe that he was, as he should, going to stop to my mind and virtually about 20 metres he's just come straight across in front of me. I hit my brake and there's a lot of gravel on the road surface too and within - I'd say within probably a second, two seconds, I'd hit him." 14 That to me seems to explain how the accident happened and it indicates that the sole cause of the accident was the negligence of the appellant so that his Honour was well justified in reaching the conclusion which he did. 15 In those circumstances I agree that the appeal should be dismissed. 16 BEAZLEY JA: I agree with the reasons for judgment of both Fitzgerald JA and the additional comments of Sheppard AJA. 17 As has been indicated in the judgment of Fitzgerald JA, there is some uncertainty as to whether this is a matter in which leave to appeal was required although the Court is of the view that more likely than not leave was not required. However, as the matter was not fully argued before us, we consider that the preferable orders to make in the matter are these:- (1)The Court extends time in which to bring the application for leave to appeal. (2)Grant leave to appeal. (3)The appeal is dismissed with costs.