New South Wales Court of Appeal CITATION : Chamberlain v Callaghan & Ors [2004] NSWCA 44 HEARING DATE(S) : 25 February 2004 JUDGMENT DATE : 25 February 2004 JUDGMENT OF : Handley JA at 1; Beazley JA at 28; Tobias JA at 29 DECISION : Appeal dismissed with costs. CATCHWORDS : Appeal - findings of fact - credit - no basis for appellate intervention - no question of principle CASES CITED : March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Scott Chamberlain (Appellant) PARTIES : Rod Callaghan (First Respondent) Ian Reginald Knox (Second Respondent) Pioneer Concrete (NSW) Pty Ltd (Third Respondent) FILE NUMBER(S) : CA 40315/03 S Norton SC (Appellant) COUNSEL : W S Reynolds (First Respondent) K P Rewell SC (Second and Third Respondents) Brydens Law Office (Appellant) SOLICITORS : CKB Partners (First Respondent) Creagh & Creagh (Second and Third Respondents) LOWER COURT District Court JURISDICTION : LOWER COURT DC 1886/00 FILE NUMBER(S) : LOWER COURT Gibson DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40315/03 DC 1886/00 HANDLEY JA BEAZLEY JA TOBIAS JA 25 February 2004 SCOTT CHAMBERLAIN v ROD CALLAGHAN & 2 ORS Judgment 1 HANDLEY JA: The plaintiff has appealed from the judgment of Gibson DCJ who dismissed his action against the driver of a Ford Falcon motor vehicle and the driver and owner of a prime mover and dog trailer which were involved in his accident on 19 March 1997. 2 The plaintiff was riding a motorcycle west on the M4 near Prospect in the near side lane close to the shoulder or breakdown lane. It was about 3 o'clock in the afternoon on a weekday, the weather was fine and sunny, and the traffic was moderately heavy but flowing. 3 The first defendant's vehicle had been left parked as far to the left as possible off the M4 in the breakdown lane or shoulder. The breakdown lane or shoulder at this point was quite narrow and the Ford Falcon intruded onto lane one for some three centimetres and its offside rear vision mirror for some 200 centimetres. Lane one itself was three metres wide at this point. 4 The second defendant's truck was being driven west in lane one and as it approached the stationary Falcon it veered somewhat to the right into lane two to safely pass. Mr Knox, the driver, said he did this because he was concerned that someone in the stationary vehicle might have opened the door to get out and he wanted to leave a margin to allow for that situation. His truck was 2.6 metres wide and since lane one was only three metres wide, he would naturally have moved to the right in any event. 5 The plaintiff, riding his motorcycle behind Mr Knox's truck, decided that he could proceed through the gap between the parked vehicle and the truck and pass the truck on its near side. In the process, he came to disaster, hence these proceedings. 6 It is not clear whether the plaintiff's motorcycle first struck the parked car or whether it first made contact with the prime mover being driven by Mr Knox. There was no damage to the dog trailer at the rear of Mr Knox's prime mover. 7 The first defendant did not go into the witness box. He parked his vehicle as far to the left as possible, close to the metal barrier. Indeed, he probably could not have opened the near side doors. The first defendant told Constable Keene that his car stopped because it had run out of petrol. 8 The second defendant, Mr Knox, did give evidence which the trial judge accepted in preference to that given by the plaintiff. The trial judge was not satisfied that the first or second defendants had been negligent. 9 Miss Norton, who did not appear at the trial and made the very best of a difficult case, challenged the findings of the trial judge in a number of respects. The Court was taken to the evidence given by Mr Knox in chief and in cross-examination and in his statement to the police. We were also taken to photographs of the scene of the accident showing the stationary vehicle, where the motorcycle had come to rest, where the plaintiff's body had come to rest and where the second defendant's truck had stopped in the near side lane. 10 The photographs show skid marks which the defendant's expert, Mr Joy, said were made by the second defendant's truck and this evidence was not challenged at the trial. The photographs, the dimensions of the site, the dimensions of the two large vehicles, and the damage to the motorcycle and the truck constitute the only indisputable evidence. Much of Miss Norton's argument was appropriately directed to the inferences that could be drawn from it. 11 There is no evidence of the width of the motorcycle but there are photographs. The handlebars are the widest part but appear to be angled back. The Court cannot speculate as to the precise width of the motorcycle. 12 As the plaintiff approached the stationary vehicle, he had a good view of it from several hundred metres back. The M4 is straight at this point and as I have said it was daylight and the weather was clear. The judge found that the traffic ahead of the second defendant's truck was veering to the right to pass safely around the stationary vehicle and in due course the second defendant's truck did the same. The plaintiff concluded from this manoeuvre that the truck was changing lanes and that it would be safe to pass the truck on the inside. He did not say in his evidence that he observed the trafficator lights on the back of the dog trailer flashing but he did observe the movement of the truck into the second lane. 13 There is no precise evidence, nor could there be, as to the distance the truck moved into lane two but the Court has available the photograph at p 47 of the blue appeal book, and the original in Ex 2. This shows the skid marks referred to, including those made by the offside wheels. The major braking force in this articulated vehicle is applied to the dog trailer. Mr Knox said that when he realised there had been an accident he locked his brakes and this no doubt caused the skid marks. These provide indisputable evidence of the general position of the truck when the brakes were applied. They show the truck moved only centimetres into lane two. 14 It is not clear whether the plaintiff's motorcycle collided with the stationary vehicle. There was damage to the stationary vehicle at the right offside rear but no damage to the left handlebar of the motorcycle. This motorcycle did not have bumper bars. The handlebar of the motorcycle was too high to cause the damage to the rear tail light and rear offside corner of the parked vehicle. However, at some stage, and perhaps as Mr Knox was starting to move his truck back into his correct lane the prime mover made contact with the motorcycle. This was a major contributing factor, if not the sole cause of the plaintiff losing control of his motorcycle and coming to grief. 15 The first question is whether there is any evidence that the first defendant was negligent in leaving his motor vehicle where he did. It was not suggested that he could have parked his vehicle any further to the left. The submission is that the vehicle ran out of petrol, this should have been clear to the driver, and he should have parked in the breakdown bay some thirty metres to the rear which was provided with an emergency telephone. If he had done this the accident would not have happened. 16 There is evidence that a vehicle running out of petrol does not stop suddenly after driving normally up to that point but that the lack of fuel is evident for some appreciable period beforehand and this should have alerted the first defendant to the coming emergency. 17 In these circumstances there was prima facie evidence that the first defendant was negligent. Since he did not go into the witness box and explain his actions a finding of negligence should be made. 18 I turn to the alleged negligence of the second defendant. Miss Norton offered some criticisms of Mr Knox's evidence, particularly where he spoke of the instant at which he first became aware that there had been an accident. In one part of his evidence he said he first saw the motorcycle when he looked in his rear vision mirror, without indicating what it was that caused him to do this. In other parts of his evidence he said that he heard a noise and that caused him to look in his rear vision mirror and see the motorcycle. 19 It is not clear whether the motorcycle, when he first saw it, was upright or had already fallen onto its left side and was skidding along the road. 20 In my judgment these criticisms do not provide an adequate basis for this Court interfering with her Honour's findings of fact. The photographs, the damage to the motorcycle and prime mover and the inferences from the skid marks provide a solid foundation for her Honour's findings in relation to the second defendant. He did no more than move to his right and take his truck slightly into the second lane. In doing so he followed the vehicles ahead that had been observed by the plaintiff doing the same. 21 In my judgment therefore the appeal as against the second and third defendants must fail. 22 My finding that there was negligence on the part of the first defendant requires me to consider the question of causation. 23 Miss Norton's submission that but for the negligence of the first defendant this accident would not have occurred may be accepted. However, as the High Court has made clear, that by itself does not establish causation. Other factors must also be considered. In the present case, the first defendant's stationary vehicle was obvious. It was seen by the plaintiff as he approached. Despite the presence of this vehicle he attempted to pass the truck on its inside in what on any view was an extremely narrow window of opportunity both in time and space. 24 He assumed that the second defendant was changing lanes but was not in a good position to judge this. He does not suggest that the trafficator lights on the second defendant's vehicle were flashing to signal an intention to change lanes. The truck can not have moved more than half a metre at the most from the middle of lane one until its offside wheels were some centimetres into lane two. 25 To attempt to pass between the truck and the stationary car was an extremely hazardous and foolhardy action. This action was taken with full knowledge of the position of the first defendant's vehicle and with all the time needed to make a considered judgment. 26 In those circumstances, I have not been persuaded that the static situation created by the negligence of the first defendant in leaving his vehicle protruding slightly into lane one was causative of this accident in the relevant sense: March v E & M H Stramare Pty Ltd (1991) 171 CLR 506. 27 I would therefore dismiss the appeal as against the first defendant. In the result, despite Miss Norton's valiant efforts, the appeal fails and should be dismissed with costs. 28 BEAZLEY JA: I agree. 29 TOBIAS JA: I also agree. ********** Last Modified: 03/01/2004 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.