O'HARA v QBE INSURANCE (AUST) LIMITED [2004] NSWCA 392

New South Wales Court of Appeal

CITATION : O'HARA v QBE INSURANCE (AUST) LIMITED [2004] NSWCA 392 HEARING DATE(S) : 18, 19 October 2004 JUDGMENT DATE : 19 October 2004

JUDGMENT OF : Mason P at 1; Giles JA at 84; McColl JA at 85 DECISION : Appeal dismissed with costs.

CATCHWORDS : Negligence - car accident - credibility of appellant's version of accident - whether physical evidence inconsistent - contradictory witness testimony - no appealable error demonstrated. (D) PARTIES : Sheila Margaret O'HARA QBE INSURANCE (AUST) LIMITED FILE NUMBER(S) : CA 40597/03 COUNSEL : Appellant: R McIlwaine SC/ M Maxwell Respondent: P Deakin QC/ S Loughnan SOLICITORS : Appellant: Stacks/Goudkamp Respondent: Abbott Tout

LOWER COURT District Court JURISDICTION : LOWER COURT DC 696/2002 FILE NUMBER(S) : LOWER COURT McGuire DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40597/03

MASON P GILES JA McCOLL JA

Tuesday 19 October 2004 Sheila Margaret O'HARA v QBE INSURANCE (AUSTRALIA) LIMITED JUDGMENT

1 MASON P: Mr McIlwaine has argued this appeal skillfully and in detail, but for the reasons that follow, the difficulties in his path were insuperable. 2 The appellant was seriously injured in a car accident that occurred at about 12:30am on 6 March 1999. The accident happened on the Princes Highway, about five kilometres north of Eden. The appellant was the driver of a vehicle involved in a head-on collision with a vehicle being driven by Mr Raymond Ward. Mr Ward was killed in the accident. The respondent is his Compulsory Third Party insurer. 3 McGuire DCJ found the verdict for the defendant from which the appellant now appeals. 4 The appellant is a young Irish National. She held a provisional licence and had about 18 months experience as a driver. She was in Australia on a working holiday. 5 She set off to Melbourne with two friends in a rented Toyota Corolla motor vehicle. This was the first time she had driven in Australia. The three young women left Sydney at about 5pm. The appellant's companion, Christine Mannion, drove as far as Wollongong, where the group stopped to have a meal. The appellant's second companion, Catherine Morrissey, then took over and she drove as far as Bega. The appellant rested and slept during this leg of the journey. 6 The group stopped for petrol at Bega at about midnight. The appellant then took over the driving and her friends went to sleep. She drove with the air-conditioning on and the car windows raised as she listened to music from a cassette. As she approached the accident scene she was within a 100 km per hour zone and was travelling just under that speed. 7 The deceased, who lived at Pambula, had collected his adult daughter, Mrs King, at the railway station at Moe in Victoria at about a 8pm. It was about four hours drive from Moe to Eden. The deceased was driving a Holden Statesman. 8 The accident occurred at a point where the Princes Highway ran approximately north/south. At the point of the collision the carriageway consisted of a single lane running each way, divided by double unbroken separation lines painted white. The outer edge of each lane was bounded by a single, white, unbroken fog line. The area was in a bushland setting, with no street or other lighting to illuminate the Highway. Traffic was sparse and the weather was fine. It was very dark. 9 The appellant had negotiated a slight right-hand bend and was proceeding southwards up a modest grade as she approached the scene of the collision. The deceased was travelling slightly downhill, rounding a gentle left-hand turn that was still straightening 50 metres south of the point of impact. 10 It is common ground that the appellant's vehicle crossed completely onto its incorrect side of the road and came into head-on collision with the oncoming vehicle driven by the deceased. Tyre and gouge marks establish the point of impact as being on or immediately adjacent to the white fog line on the western side of the northbound lane in which the deceased was travelling. 11 The appellant's evidence was that she had rounded the left-hand bend and was proceeding up a rising section of the highway just prior to the accident. As she came around the bend and towards the straight, she could see the lights of an oncoming vehicle in the distance. Near the top of the hill the oncoming vehicle came into her vision. The evidence showed that was at a distance of some 171m from the point of impact. This distance equates to 3.42 seconds on the assumption that each driver was going at 95 kilometres per hour. 12 The trial judge records that the parties accepted the calculation that the point where the appellant could first observe the wheels of the deceased's Holden in relation to the centre lines was some 101.34 metres away. This equates to 1.94 (say 2) seconds on the above-mentioned assumptions as to speeds. That would have been the appellant's first opportunity to detect any untoward or wayward driving by the deceased, so far as it involved crossing the unbroken centre line. 13 It was the appellant's case that the oncoming vehicle proceeded to drift gradually over the centre line, causing her to take evasive action to avoid a head-on collision. To this end she swerved to the right into the opposite lane, thereby explaining why the collision occurred where it did. 14 In describing the accident the appellant stated (Black 61-65): Q. Well, now could you please tell His Honour what you recall happening from the point where you come around that, for you, left-hand bend, onto that rising straight section of road, right up to the time of the accident? A. As I came around, and coming up the stretch, I could see lights in the distance. … A. As I came around the bend, and coming up towards the straight, I could see lights in the distance. And I was coming up, as the hill gradually comes up, as I was coming up near the top of it, the car came into my vision. … A. As I was coming up towards the – going up the hill, near the top if it, the car came into my better vision. And as I was approaching near the top of the hill, I could see the car and [it] started to gradually drift over the centre line. Q. All right. And are you able to say how far the vehicle drifted over the centre line? A. About half of the width of the car came over. Q. And when that happened, what did you do? A. I just had to get out of the way. I had to escape. I swerved to the right. … Q. You have already told us half of the vehicle was across the centre line? A. Yes. Q. What would have happened if the vehicle had continued to drift across the centre line - A. We - Q. -- or kept on going? A. We would have had a head-on collision. Q. What would have happened if it had stayed where it was, that is, half the width of the vehicle across the centre line? A. We would have had a head-on collision. Q. All right. So you told us you swerved to the right? A. The right. Q. And onto what part of the road? A. Onto the opposite lane that I should have been on. Q. All right. And what happened? A. I had a head-on collision. … Q. What did the vehicle appear to you to be likely to do when you saw it drifting across the road? A. It looked like it was going to continue drifting. Q. And now, do you remember what is the next thing you remember after swerving to the right? A. Waking up in the car with the police[man] beside me.