Johnson v Savage [2003] NSWCA 244

New South Wales Court of Appeal

CITATION : Johnson v Savage [2003] NSWCA 244 HEARING DATE(S) : 28 August 2003 JUDGMENT DATE : 28 August 2003

JUDGMENT OF : Handley JA at 1, 17; Tobias JA at 15; Gzell J at 16 DECISION : Appeal dismissed with costs.

CATCHWORDS : NEGLIGENCE - road accident - challenge to findings of trial judge - no question of principle PARTIES : William Johnson (Appellant) Nichole Savage (Respondent) FILE NUMBER(S) : CA 41108/02 COUNSEL : J D Hislop QC/ M Ward (Appellant) J Conomos (Respondent) SOLICITORS : McLachlan Chilton (Appellant) Constantine G Pavlis & Co (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT DC 6559/00 FILE NUMBER(S) : LOWER COURT Gibson DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 41108 of 2002

HANDLEY JA TOBIAS JA GZELL J

28 AUGUST 2003 WILLIAM JOHNSON v NICHOLE SAVAGE Judgment 1 HANDLEY JA: This is an appeal by the defendant from a judgment of Gibson DCJ given on 14 November 2002 in which her Honour entered judgment for the plaintiff for damages to be assessed. This of course was an interlocutory judgment from which no appeal lay as of right, but only by leave. The point was overlooked by the legal advisers for the appellant. No point was taken by the legal advisers for the respondent and the Court failed to detect the incompetence of the appeal without leave. The case is a substantial one and at this stage there is no reason for the Court to do other than deal with the appeal on its merits. 2 The proceedings arise out of a motor vehicle collision which occurred on 11 March 1999 at the Allen's Creek bridge on the North bank of the Hawkesbury River not far from Wisemans Ferry. The vehicle being driven by the defendant, a Toyota Camry, was coming from the west and driving east. The plaintiff's vehicle, a Mitsubishi Galant, was coming from the east and driving to the west. The collision occurred close to the eastern end of the bridge. Evidence in the plaintiff's case was given by the plaintiff and her sister-in-law who was in the passenger front seat of the plaintiff's vehicle. Evidence was also given by Mr Prince, an independent witness, and by Senior Constable Broadley who attended the scene of the accident and prepared a summary report known, for some reason, as the COPS report. The plaintiff also tendered an expert's report by a Mr Joy. Evidence in the defendant's case was given by the defendant and his wife, and by an expert, a Mr Stuart Smith, who gave oral evidence. 3 The judge found for the plaintiff and rejected a defence of contributory negligence. She analysed the experts' reports at some length but decided to act on the lay evidence, in particular the evidence of Miss Savage, the plaintiff's sister-in-law, and Mr Prince, the independent witness who had been driving in the same direction as the defendant. She found that it was possible to reconstruct the accident, having regard to the evidence of Christine Savage, the sister-in-law, and the evidence of Mr Prince. She concluded that the defendant, who was in his eighties, had been in a hurry to reach his destination after many hours of travel that day, and had been tailgating Mr Prince for some distance as they were driving towards the bridge. 4 There had been some rain and the surface of the roadway was wet. Her Honour found that the structure of the bridge, particularly for vehicles travelling east, with its curved entry and exits was something of an invitation to a vehicle coming from the west to cut the corner. As an eastbound vehicle exited the bridge the camber of the road, as well as the right hand bend, would both encourage, and facilitate the cutting of the corner. These would require a lower speed and greater control than normal to avoid crossing on to the incorrect side of the road. 5 Her Honour concluded that the plaintiff had discharged the onus of proof by establishing that the defendant was driving at an excessive speed in the circumstances and had crossed on to his incorrect side of the road at the eastern exit from the bridge causing the collision with the plaintiff's vehicle which was on its correct side. 6 Mr Hislop QC, for the appellant, offered a number of criticisms of the lay evidence that her Honour had accepted. Her Honour found that Miss Savage's evidence was consistent with the COPS report which Constable Broadley based on information obtained from Miss Savage. The Judge went onto say: "She has consistently told the same story at all times." 7 Counsel for the plaintiff at the trial had declined to produce the three statements Miss Savage had given to his instructing solicitors so there was only a meagre basis for her Honour's finding that Miss Savage had consistently told the same story at all times. All she could properly say was that her evidence in the trial was consistent and consistent with the contents of the COPS report. 8 Mr Hislop submitted that there were inconsistencies between Miss Savage's evidence and the COPS report relating to the position of the defendant's vehicle, which at one point she described as totally on its incorrect side, and the statement that the defendant endeavoured to get back on to his correct side of the road. 9 Her Honour's over-statement of the position with regard to earlier consistent statements by Miss Savage cannot invalidate her decision to accept the evidence of this witness in the light of her presentation in the witness box and the substantial content of her evidence in Court. The so-called inconsistencies between her evidence and the COPS report are little more than debating points. In my judgment this Court is not entitled to disturb her Honour's finding that Miss Savage was a persuasive witness whose evidence should be accepted. 10 Mr Prince gave evidence that he had been tailgated by the defendant for some distance and that he decided to pull over on to his incorrect side of the road to allow the defendant to pass. He then got back on to his correct side and followed, but the defendant drew ahead out of sight. Some two or three kilometres further on Mr Prince came across the scene of the accident at the bridge. He was not cross-examined but the defendant denied the conduct deposed to by this witness. 11 Her Honour was entitled to accept the evidence of this independent witness and it was an important element in the case. It demonstrated that the defendant had been driving in an impatient manner behind Mr Prince who was travelling at sixty kilometres an hour, and once Mr Prince pulled over the defendant was able to pass and draw ahead out of sight. The speed at which the defendant drew away from Mr Prince and the obvious impatience he demonstrated beforehand, enabled her Honour, on the presumption of continuance, and in accordance with authority, to draw inferences as to the defendant's driving and the speed of his driving after he had passed out of Mr Prince's sight. I can see no error in the way in which her Honour dealt with the evidence of Mr Prince and no basis for disturbing her acceptance of it. 12 The expert evidence in report form, and orally, given by Mr Stuart Smith, was an important part of the defendant's case. He concluded that the point of impact must have been on the defendant's correct side of the road and gave apparently persuasive reasons for that conclusion. However there was very little hard evidence to provide a basis for expert evidence in this case. There was some evidence of the presence of debris on the road in a plan prepared by the plaintiff's father-in-law, which was tendered in evidence by the defendant. That showed debris on the plaintiff's correct side of the road. However Constable Broadley said in his COPS report that there was no evidence to indicate where the point of impact had occurred. In this state of affairs there is either no objective evidence of the point of impact in relation to an imaginary centre-line or if there is, the evidence supports the plaintiff. 13 In the end, the only indisputable evidence supporting Mr Stuart Smith's opinions consisted of the physical configuration of the road surface, bridge, steel barriers and the like, at the scene of the accident, the resting places of the vehicles established by the evidence of Constable Broadley and Miss Savage, and the damage to the vehicles. In my judgment this is a totally inadequate objective basis for expert's findings about the behaviour of motor vehicles involved in a head-on collision at the off-side front corners of each vehicle in a dynamic situation. This report by Stuart Smith, and his oral evidence, do not provide indisputable material which is inconsistent with the judge's findings based on the lay evidence. 14 In my judgment, therefore, the appeal fails and should be dismissed with costs. 15 TOBIAS JA: I agree. 16 GZELL J: I agree with the reasons given by the presiding judge. 17 HANDLEY JA: The order of the Court, therefore is appeal dismissed with costs. **********