New South Wales Court of Appeal CITATION : Crisp v. Burridge [2004] NSWCA 245 HEARING DATE(S) : 16 June 2004 JUDGMENT DATE : 21 July 2004 JUDGMENT OF : Sheller JA at 1; Hodgson JA at 2; Santow JA at 46 DECISION : 1. Appeal allowed. 2. Respondent to pay appellant's costs of the appeal, and to have a Suitors' Fund Certificate if otherwise eligible. 3. Orders below set aside. 4. Written submissions to be provided as to further orders to be made, by the appellant within 7 days and by the respondent within a further 7 days. CATCHWORDS : APPEAL - Question of fact - Whether findings vitiated by errors - TORT - Negligence - Motor accident - Standard of care required of drivers. Cook v. Hawes [2002] NSWCA 79 CASES CITED : Fox v. Percy (2003) 197 ALR 201 Mifsud v. Campbell (1991) 21 NSWLR 725 Pledge v. Roads & Traffic Authority (2004) 78 ALJR 572 PARTIES : Cheree-Ann Crisp - appellant Brett Michael Burridge - respondent FILE NUMBER(S) : CA 41135/03 COUNSEL : Mr. P. R. Arden SC for appellant Mr. T.E.F. Hughes QC with Mr. T.D.F. Hughes for respondent SOLICITORS : Ferguson Lawyers, Sydney for appellant G.H. Healey & Co. Mascot for respondent LOWER COURT District Court JURISDICTION : LOWER COURT DC1856/01 FILE NUMBER(S) : LOWER COURT Karpin DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41135/03 DC 1856/01 SHELLER JA HODGSON JA SANTOW JA Wednesday 21 July 2004 CRISP V. BURRIDGE Judgment 1 SHELLER JA: I agree with Hodgson JA. 2 HODGSON JA: On 7 November 2003, Karpin DCJ gave judgment in the sum of $322,501.92 in favour of the respondent in motor accident proceedings brought by the respondent against the appellant, and made costs orders generally in favour of the respondent. The appellant appeals from that decision. CIRCUMSTANCES 3 The proceedings arose out of a motor accident which occurred at about 9.30pm on 18 May 1999. 4 The respondent was walking in a northerly direction in Lakeview Drive, Terrigal, proceeding from Ocean View Drive towards the intersection with Minell Close. The road at this point was not kerbed and guttered, and there was no formed footpath: grass extended from house frontages to a gravel verge, and then there was a bitumen roadway about 8 metres wide. The respondent was walking either on his right side of the road, or on the grass or gravel verge on that side of the road. The appellant was driving in a southerly direction on the same stretch of road, initially at about 50-60kph. Her vehicle struck the respondent causing him substantial injuries. 5 As stated by the primary judge, the central issue at the trial was the position of the respondent at the time of the impact. The respondent said that he was not on the bitumen roadway; and the appellant said that he was. 6 Evidence concerning the circumstances of the accident was given by the respondent, the appellant, a passenger in the appellant's car (Mr. Dybing), the driver of another car (Mrs. Hurst), and two police officers who attended after the accident (Senior Constable King and Probationary Constable Collins). 7 The respondent, the appellant, Mrs. Hurst and the two police officers identified three vehicles present at the time of the accident: the appellant's vehicle, Mrs. Hurst's vehicle being driven in Lakeview Drive in the opposite direction, and a white van parked on the east side of Lakeview Drive, that is, the same side as that on which the respondent was walking. 8 None of these witnesses placed the white van to the south of the point of impact. Both the respondent and Mrs. Hurst identified its position as being next to a section of road which was kerbed and guttered (see Black 23 OQ, Black 106S-107Q, and Blue 349), well to the north of the point of impact. The police officers placed the van 40 metres north from the start of the skid marks on the road. The appellant's evidence was to the effect that she passed the van and saw the respondent "stumble out onto the road in front of me". 9 The two police officers observed skid marks that they said were on the bitumen road, about 10 metres long, and they observed some debris about half-way along these skid marks, at a point where the easterly skid mark was about one and a half metres in from the edge of the bitumen. They identified this as the point of impact. The general direction of the skid marks was parallel to the edge of the bitumen, except that near the centre point they deviated a little towards the other side of the road, though not taking the easterly skid mark more than about one and half metres from the edge of the bitumen. 10 The police officers took a statement at the scene from the appellant, in a notebook, which was signed by the appellant. That statement was as follows: On 18.5.99 at about 9.30pm I was driving my vehicle LYW 767 south along Lake View Drive, Terrigal at about 50km/hr. I saw a car travelling in the opposite direction and the lights were shining in my eyes. I [passed] a van parked on the side of road. As I did I saw a person on the road. I braked then I hit the person on the road. If the car was not coming in the opposite direction I would have been able to swerve on the other side of the road. The car carried this person for about 5 metres. I then turned the car around and checked to see if the male was alright. Then the ambulance arrived. 11 The police took a statement from the respondent in hospital on 27 May 1999. Again, this statement was in a notebook, and it was signed by the respondent. This statement was as follows: About 9.30pm to 10pm Tuesday 18th May 1999, I was walking along Lakeview Drive, Terrigal. I was heading up to my place in Bundarra Road, Terrigal. I saw a van parked up head (sic) on the right hand side of the road. I stepped out to go around the van and I saw some lights from a car coming the other way. I moved across to get out of the way because I could see it was going to hit me. I can remember the impact of getting hit. I sort of remember going through the air and I definitely remember hitting the deck. I tried to get up. I heard a lady telling me not to get up. I can remember feeling a lot of pain in my legs. I was shaking. I remember someone [wrapping] me in blankets. Q. Which side of the van did you walk on? A. I was walking parallel with where the edge of the van was parked. 12 On 4 August 1999, the respondent signed a motor accidents claim form, one page of which is annexed to this judgment. 13 At the trial, the respondent asserted that at no time did he leave the grass and gravel verge of the road and go on to the bitumen; and he said that the wording in the statement that he made on 27 May 1999 concerning stepping out to go around the van had been "misconstrued". However, he was not cross-examined on the page reproduced from the motor accidents claim form. 14 The appellant's evidence was that at no time did she drive off the bitumen. Her evidence was that she saw the lights of the other car coming towards her, saw the respondent at the edge of the road, did not immediately brake but then saw the respondent stumble onto the road, and that she had then braked so that the car had slowed before the impact. The passenger Mr. Dybing said that the appellant did not brake before the impact. 15 Mrs. Hurst gave the following evidence (Black 101 UX): I turned into Lakeview Drive and started driving up the road and on the other side of the road there was a car coming and it started coming towards me and the lights were shining in my eyes and I thought, "What's this car doing on my side of the road", and I just moved quickly off the road to avoid it because it just kept coming … 16 Later, at Black 115 D-H, Mrs. Hurst was asked whether she saw the other car "at any time travel from the bitumen onto the grass area either wholly or partly" on the side of the road where the respondent was hit, to which she said "No". She also gave evidence that she did not hear braking and did not notice the appellant's car slow down. 17 The respondent gave evidence that he had been at a hotel between about 6.30pm and 9pm, and had consumed 8 or 9 schooners of beer. His blood alcohol reading at 11pm was 0.205g%, giving rise to an estimate of 0.224g% at the time of the accident. The respondent had incorrectly stated in his claim form that he consumed 4 schooners of VB in the 12 hours before the accident. DECISION OF PRIMARY JUDGE 18 In her judgment, the primary judge referred as follows to the respondent's evidence: The Plaintiff's evidence is that as he walked in a northerly direction he passed a white van parked on the eastern side of Lakeview Road. This van was parked on the bitumen rather than on the verge. This appears to be the only vehicle parked on the eastern side of the road and was later observed by Mrs Hurst and Constable King. The Plaintiff said that he went around that vehicle remaining on the verge. He denied that he had walked into the road to go around this vehicle. I am persuaded, having regard to all the evidence, that the Plaintiff's recollection of the route that he took is to be relied upon and I accept his evidence that he passed the vehicle on the near-side rather than on the off-side, that is he remained on the grass gravel verge whilst he walked past this vehicle. 19 The primary judge made the following comments on the police evidence: Whilst the investigating police officers, who certainly could not be qualified as experts in assessing an accident scene, came to the view that the impact occurred halfway along the skid marks, that is not borne out by any of the evidence of those present at the scene of the accident. An assumption that debris lying on the road pinpoints the point of impact is clearly unreliable when quite possibly, the impact occurs when the vehicle is travelling between 50-60 kmh and the victim is struck, thrown onto the bonnet with part of his body impacting and smashing the front windscreen, before he falls to the side of the road. Commonsense dictates that the debris would have been subjected to forces which have not been taken into account but which would necessarily not cause it to fall to the ground at point of impact. A point of impact determined in these circumstances by evidence of debris on the road is highly unreliable. In this case, it does not accord with any of the evidence apart from perhaps, that of the Defendant that she applied the brakes prior to the point of impact. 20 The primary judge drew the following conclusion on the issue of liability: An analysis of Mrs Hurst's evidence together with that of the Plaintiff and Mr Dybing and the physical evidence relating to the damage to the Defendant's motor vehicle, leads to the following scenario: the Plaintiff was at all relevant times walking on the grass gravel verge, albeit in close proximity to the bitumen surface. The Defendant observed the Plaintiff when she was approximately 40 metres from him. She did not reduce her speed because she saw no necessity to do so as in her view he did not represent a hazard. Thereafter, the Defendant observed the lights of Mrs Hursts vehicle which were shining in her eyes, and for whatever reason veered towards the edge of the road striking the Plaintiff before swerving back across the road into the path of Mrs Hurst's car, the latter being obliged to drive off the road in order to avoid a collision. At no time prior to the accident did the Defendant brake or otherwise reduce her speed although she applied the brakes immediately after impact with the plaintiff, allowing for usual reaction time, and when her car was fully on the sealed surface. 21 The primary judge did not explicitly state whether she found the respondent to be a reliable witness. She did say that the appellant's evidence was inconsistent, and that the appellant was not a reliable witness. She said that Mrs. Hurst's evidence could be accepted in toto. GROUNDS OF APPEAL 1. Her Honour erred in that she failed to have proper regard to the opinions advanced by the appellant and failed to enter into, and engage with, evidence presented on behalf of the appellant when assessing the following issues directly relevant to liability. 2. Her Honour erred in her finding of the route taken by the respondent leading to the accident and the position of the respondent at the moment of impact. 3. Her Honour erred in finding that the appellant's car swerved toward the respondent. 4. Her Honour erred in finding that the appellant veered toward the edge of the road and struck the plaintiff before swerving back across the road into the path of Mrs Hurst's car. 5. Her Honour erred in finding by implication that the appellant's car struck the respondent when the respondent was not on the bitumen surface. 6. Her Honour erred in finding that the appellant's vehicle veered on to Mrs Hurst's side of the road. 7. Her Honour erred in rejecting the incontrovertible evidence of the police officers relating to the point of impact and the position of the skid marks on the bitumen surface and the roadway. 8. Her Honour's conclusions regarding the paths taken by the appellant and respondent leading to the point of impact when considering the whole of the evidence are contrary to compelling inferences, if not glaringly improbable. 9. The amount awarded to the plaintiff by her Honour was for non-economic loss was demonstrably too large in the circumstances. SUBMISSIONS 22 Although the appellant's written submissions covered wider ground, Mr. Arden SC for the appellant in oral submissions relied essentially on three alleged errors by the primary judge: 1. A plainly incorrect finding by the primary judge that the respondent walked past the parked van on the near side, in circumstances where it was clear on the evidence that the respondent was hit by the appellant's vehicle before he reached the van (within ground 8). 2. Error in failing to enter into and engage with the signed statement of the respondent that he stepped out to go around the van, recorded in the police notebook, and material to similar effect in the motor accidents claim form (within ground 1). 3. Adoption of a scenario which was glaringly improbable having regard to the skid marks and Mrs. Hurst's evidence to the effect that the appellant's vehicle did not veer onto the grass verge (within ground 8) and failure to enter into and engage with that evidence in relation to the scenario (within ground 1). 23 Mr. Hughes QC for the respondent accepted that the primary judge was in error in her statement that the respondent walked past the parked van on the near side, because it was clear that the respondent was hit before he reached the van; but submitted that this was immaterial in the overall context of the case, and did not vitiate the judgment. 24 Turning to the second point, Mr. Hughes submitted that the statement in the police notebook had to be read having regard to the circumstance that the police were dealing with a young man, with limited education, still being treated in hospital. He referred to the cross-examination of one of the police officers, in which the police officer conceded that none of the material in the notebook statement placed the respondent on the bitumen surface of the road; and accepted that the reference to walking parallel with where the edge of the van was parked could be referring to the kerb side of the van. Mr. Hughes pointed to the comment made by the primary judge to the cross-examiner "I think you have covered it". He also referred to oral evidence by the respondent, referring to marks made by him on a photograph, to the effect that just before the impact he straightened up to walk along the side of the road; so that the "stepping out" referred to in the statement could mean stepping out in a northerly direction, not stepping out onto the road itself. Mr. Hughes submitted that the respondent had not been cross-examined on the claim form, so that the claim form could not fairly be used to assist in interpreting what was in the statement in the notebook; and also submitted that no submission had been made to the primary judge based on this part of the claim form. (This last submission was accepted as correct by Mr. Arden.) 25 Mr. Hughes also referred to a statement recorded as having been made to a doctor, by inference on 8 June 1999, that the respondent was "on the side of the road when he was hit". 26 Finally, on this point, Mr. Hughes submitted that it was not to be assumed that, because the primary judge did not deal specifically with the statement to the police, she overlooked it, particularly having regard to the observation she made during cross-examination, referred to above. Mr. Hughes referred particularly to Abalos v. Australian Postal Commission (1990) 171 CLR 167 at 178; Fox v. Percy (2003) 197 ALR 201; and Pledge v. Roads & Traffic Authority (2004) 78 ALJR 572. 27 Turning to the third point, Mr. Hughes submitted that the scenario adopted by the primary judge was supported by her acceptance of the respondent's evidence as to where he was hit; her rejection of police evidence as to the point of impact; her acceptance of Mr. Dybing's evidence that there was no braking until after impact; the appellant's evidence that she veered towards the wrong side of the road; and acceptance of Mrs. Hurst's evidence that the appellant veered towards her. Mr. Hughes submitted that the skid marks did not exclude the appellant's vehicle having gone off the surface of the road and hit the respondent, after which the appellant's vehicle came back onto the road before commencing to skid. Mr. Hughes submitted that the scenario was further supported by glaring inconsistencies in the appellant's evidence, and the implausibility of her evidence that required that the respondent suddenly move from a metre off the bitumen to a position one and a half metres within the bitumen, in virtually a single step. 28 Mr. Hughes also submitted that, in so far as the appellant relied on evidence of intoxication, it was open to the primary judge to accept that the respondent was not so affected as to impair his ability to walk and assess risks. DECISION 29 In my opinion, the combination of the three matters relied on by the appellant does mean that the primary judge's finding on liability in this case must be set aside. 30 The finding that the respondent walked past the parked van cannot, in my opinion, be dismissed as being immaterial in the overall context of the case. It shows that the primary judge did not have a clear and correct understanding of the evidence in the case, or of the basic physical circumstances in which this accident occurred. Furthermore, an understanding of the general position of the van in relation to the accident was highly relevant to an assessment of the significance of contemporary statements made by the respondent. 31 As regards the second matter, in my opinion the cross-examination referred to by Mr. Hughes did not throw any relevant light on the interpretation to be given to the statement. It was not suggested that the statement did not fairly record what it was that the respondent said at the time, or that the respondent was under any misapprehension as to what it was he put his signature to. When one has regard to the circumstance that, in this statement, the respondent is placing himself as walking towards the van parked up ahead on the right-hand side of the road, and then says "I stepped out to go around the van and I saw some lights from a car coming the other way", there is in my opinion no vagueness or ambiguity in what is being asserted. The respondent is asserting an intention to go around the van on the road-side and not the kerb-side of the van. The answer to the subsequent question, "I was walking parallel with where the edge of the van was parked" must in those circumstances refer to walking level with the road-side edge of the van. 32 In my opinion, that was an important piece of evidence in favour of the appellant, when it was clear that the side of the van nearest to the road was well onto the bitumen of the road, albeit some 40 metres away and probably at a point where the bitumen extended to a formed gutter. In my opinion, the primary judge's failure to consider this piece of evidence, and the respondent's denial of its import, amounted to a deficiency of reasons. I do not think that the comment made by the judge during cross-examination, a cross-examination which had at best marginal relevance to the interpretation of the document, dispensed with the need to address this particular piece of evidence. Having regard to the other deficiencies that I identify, I do not need to determine whether this alone would have been sufficient to justify appellate intervention on the basis discussed in Misfud v. Campbell (1991) 21 NSWLR 725. 33 If there were any ambiguity in the statement in the police notebook, that ambiguity would be removed when that statement is considered together with the account of the accident given in the accident claim form. Mr. Hughes attempted to dismiss this as being, not the respondent's account of the accident, but his understanding of the appellant's account. In my opinion, that idea is fanciful. The configuration of the pedestrian and the three vehicles shown on the diagram, and the expression "walking just on the road past parked cars on the side of the road" make it crystal clear that the respondent's account of the accident at that time was to the effect that he was proceeding towards walking around the parked van on the road-side of the van. I accept that this document could not be used as a necessary step in demonstrating error by the primary judge, because of the lack of cross-examination and the failure to refer to it in submissions before the primary judge; but it does in my opinion give confirmation to the view I take as to the meaning of the statement recorded in the police notebook. 34 Turning to the third point, the scenario adopted by the primary judge involves a finding that the appellant's car first veered to its left and went off the bitumen, then veered back to the right and proceeded onto the wrong side of the road before coming to a stop. In submissions, Mr. Hughes substantially conceded that that view could not be reconciled with the skid marks; and submitted that the primary judge's scenario should be read as meaning that the appellant's car veered off the bitumen, struck the respondent, and then returned to the bitumen and followed the course indicated by the skid marks; so that the car never actually went to the wrong side of the road, but gave the appearance of being about to do so at the point where the skid marks indicate some movement towards the centre of the road. This approach has two difficulties: first, it is inconsistent with the primary judge's explicit finding that the appellant's car swerved back across the road into the path of Mrs. Hurst's car; and second, it does not explain why the skid marks from the start point directly along the road, approximately parallel with the edge of the bitumen, rather than giving some indication of commencing with a movement of the car from the edge of the bitumen towards the centre of the road. Furthermore, like the primary judge's scenario, it disregards Mrs. Hurst's evidence that she saw the appellant's car coming and then coming towards her, and did not see it travel onto the grass area where the respondent said he was hit. 35 That is, the respondent in substance accepted that the primary judge's scenario could not be supported, and attempted to rescue it with a modified scenario, which itself has significant difficulties. 36 The respondent also placed substantial reliance on the primary judge's finding that the respondent was not significantly affected by alcohol, and also on what the respondent submitted to be glaring inconsistencies in the appellant's evidence. 37 I accept that it was open to the primary judge to find that the respondent was not significantly affected by alcohol; although I would consider it an unsatisfactory approach to make this decision independently of a decision concerning all of the circumstances of the case. In my opinion, the appropriate course would have been to have regard to the evidence concerning affectation by alcohol, and take that into account in arriving at a final decision; rather than making a finding that the respondent was not significantly affected by alcohol, independently of consideration of all of the circumstances. However, I would not have regarded that approach as an error which of itself would justify appellate intervention. 38 As regards the inconsistencies in the appellant's evidence, I accept that it was open to the primary judge to find that there were inconsistencies and to regard the appellant as an unreliable witness because of them. However, I do not consider that the inconsistencies in the appellant's evidence were such as to lend powerful support to the respondent's case. In my opinion, it would have been equally open to the primary judge to regard the inconsistencies as flowing from the appellant's inability to make precise estimates in terms of distance in metres and times in seconds, in relation to things happening at a time of emergency; and to regard her evidence as a reasonably consistent account, having regard to all the circumstances. 39 In my opinion, the combined effect of the three matters relied on by the appellant requires that the finding on liability be set aside. The question then is, what course should this Court now take. 40 It seems to have been assumed during the hearing in this Court that, if the appeal was allowed, the only possible result was a new trial. Even if this Court were able to conclude that the point of impact was on the bitumen, a finding of negligence against the appellant would still be open; and if there was such a finding, a finding of contributory negligence would be likely and there would be a need to apportion responsibility. It would also be necessary then to assess damages, on the basis of the view of the respondent's credibility then taken by the Court. There is some question whether there could be a fully satisfactory resolution of these issues by this Court. 41 On the other hand, the alternative may be even less satisfactory. The hearing before the primary judge extended over seven days, there had previously been an arbitration, and there has now been an appeal to this Court, in a matter in which the damages were assessed at a little over $300,000.00. In those circumstances, it seems to me appropriate to express my tentative views as to findings and orders that I may, subject to submissions from the parties, be prepared to make. I would invite written submissions as to whether or not those findings and orders should be made, or whether there should be a new trial. The Court would then decide what order to make on the basis of those submissions. 42 My tentative views are: 1. The impact took place on the bitumen at some point between about where the left wheel skid marks started and the point identified by the police as the point of impact. 2. The appellant saw the respondent very close to the edge of the bitumen when she was about 40 metres away from him. She was then travelling at about 50-60kph, and the impact occurred about three seconds later. 3. The appellant did not then slow down, but tried to brake as soon as she saw the respondent step onto the bitumen, the respondent then being about 15-20 metres in front of her. Given a reaction time of about one second, there was little if any effective braking before impact. 4. Because of the proximity of the respondent to the edge of the bitumen when the appellant first saw him, and the impossibility of deviation to the other side of the road because of the on-coming car, the appellant should have started to slow as soon as she saw the respondent so close to her path. That may seem to be expecting perfection, but a car is a lethal weapon, and to drive with reasonable care, one should where reasonably possible leave a reasonable margin for error by oneself and others, especially where a pedestrian is seen unusually close to traffic lanes: cf. Cook v. Hawes [2002] NSWCA 79 at [15]-[16]. Had the appellant done so, the impact would have been avoided or at least much less severe. 5. For that reason, the appellant was negligent. The respondent was guilty of contributory negligence, for stepping onto the bitumen road in the path of the appellant's car. His negligence was much greater, and the appropriate apportionment is 15% to the appellant and 85% to the respondent. 6. The assessment of the respondent's damages is not significantly affected by outstanding credibility issues, so the respondent should have a verdict for 15% of the amount awarded, that is $48,375.29. 43 The orders I propose are: 1. Appeal allowed. 2. Respondent to pay appellant's costs of the appeal, and to have a Suitors' Fund Certificate if otherwise eligible. 3. Orders below set aside. 4. Written submissions to be provided as to further orders to be made, by the appellant within 7 days and by the respondent within a further 7 days. 44 At present, I would tentatively propose the following further order: 5. In lieu of orders below, judgment for the respondent in the sum of $48,375.29 and appellant to pay half the respondent's costs of the trial. 45 The alternative to this would be an order for a new trial, with costs of the first trial being in the discretion of the judge at the new trial. The Court could also order compulsory mediation. 46 SANTOW JA: I agree with Hodgson JA. ********** Last Modified: 01/19/2005 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.