New South Wales Court of Appeal CITATION: John Evans v Hudson Building Supplies Pty Ltd [2008] NSWCA 359 HEARING DATE(S): 19 December 2008 JUDGMENT OF: Giles JA at 1, 16, 18; Macfarlan JA at 17; Gyles AJA at 2 EX TEMPORE JUDGMENT DATE: 19 December 2008 1. The appeal be allowed. 2. The judgment below be set aside. DECISION: 3. The matter be remitted to the District Court for re-hearing on the issue of liability only. 4. The respondents pay the costs of the appellants and the respondents, if otherwise qualified, have a certificate under the Suitors' Fund Act 1951. 5. The costs of the first trial be left to the disposition of the judge hearing the re-trial. CATCHWORDS: TORTS - negligence - motor vehicle accidents - where two consecutive rear-end collisions involving three vehicles in total - where appellant driver of first vehicle - assessment of appellant's contribution to damage to second vehicle at 60 per cent - whether finding of liability and contribution assessment supported by evidence at trial as to operation and activation of appellant's vehicle's tail lights, brake lights and indicator lights and vehicles' respective braking patterns - matter remitted for re-hearing as to liability LEGISLATION CITED: Suitors' Fund Act 1951 CATEGORY: Principal judgment John Evans - First Appellant PARTIES: Gregory Nunn - Second Appellant Hudson Building Supplies Pty Ltd - First Respondent Stephen Dye - Second Respondent FILE NUMBER(S): CA 40105/08 K Rewell SC and PJ Nolan - First and Second Appellants COUNSEL: L King SC and R Harrington - First Respondent GJ Bellew SC and PR Sternberg - Second Respondent TL Lawyers - First and Second Appellants SOLICITORS: Goldbergs - First Respondent Moray & Agnew - Second Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 4647/05 LOWER COURT JUDICIAL OFFICER: Goldring DCJ LOWER COURT DATE OF DECISION: 13 February 2008 LOWER COURT MEDIUM NEUTRAL CITATION: Hudson Building Supplies Pty Ltd v John Evans & Ors [2008] NSWDC 37 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40105/08 GILES JA MACFARLAN JA GYLES AJA Friday, 19 December 2008 JOHN EVANS & 1 ORS v HUDSON BUILDING SUPPLIES PTY LIMITED & 1 ORS Judgment 1 GILES JA: Justice Gyles will deliver the first judgment. 2 GYLES AJA: This is an appeal from a judgment of the District Court in a claim by an employer, Hudson Building Supplies Pty Limited (the first respondent) to recover amounts of workers' compensation paid to a worker, Christian Forth, who was injured in a motor car accident on 11 March 2003. Shortly after 6 am on that day Mr Forth was driving the first respondent's 4-tonne Hino truck from his home at Lawson to Rouse Hill south-east along Richmond Road, Berkshire Park approaching the intersection with St Mary's Road. He collided with the rear of a 10-tonne International truck owned by John Evans (the first appellant) and driven by Gregory Nunn (the second appellant). At the same time, or within a fraction of a second later, a Holden Rodeo utility owned and driven by the second respondent, Stephen Dye, ran into the rear of the Hino. Mr Forth was seriously injured. There is no issue as to the assessment of his damages. 3 It was held that the major cause of the collision was the failure of Mr Nunn, who was driving the International truck, to indicate either at all or in time that he was slowing down preparing to turn right. Mr Forth and Mr Dye were each held negligent in driving too closely behind the vehicle in front to stop in time to avoid the collision. Responsibility for the injuries was apportioned as follows: Mr Nunn 60%, Mr Forth 20% and Mr Dye 20%. 4 In my opinion those findings cannot stand. A critical finding was that Mr Nunn had not given an indication of an intention to turn right. There is some ambiguity in the findings by his Honour as to whether he was assessing on the basis that either Mr Nunn did not indicate at all or had indicated too late. However, for my part there is a significant difference between the two and in order to arrive at the apportionment he did it seems to me likely that his Honour was taking the most serious of those possibilities as the basis for the apportionment. 5 Mr Nunn said that he had activated his right turn indicator before the intersection. There was no reason for him not to do so. There was no suggestion that he had made a sudden decision to turn into St Mary's Road. Mr Forth has no memory of the circumstances leading up to the collision. Mr Dye did not claim to have any ability to observe the International truck in any relevant way as it was obscured by the Hino truck. There was no evidence of skid marks caused by any sudden braking of the International truck. Mr Nunn was not cross-examined to suggest that he had not activated his right hand turn indicator. 6 In my respectful opinion his Honour's conclusion on this issue was speculation. It was based upon the trial judge's unfavourable impression of Mr Nunn as a witness. Even if that was soundly based it would provide no basis for the finding that was made. 7 In any event, there are some difficulties with the reasoning. His Honour, when he introduced his findings upon this topic, said: "I am not satisfied, on the balance of probabilities, that [Mr Nunn] indicated his intention to turn right at all, but if he did, it was not until he was 20 - 30 metres from the intersection." That inverts the onus of proof. It was not for Mr Nunn to satisfy the judge of anything except on an evidentiary basis. Furthermore, in the course of that passage of his judgment, his Honour referred to a statement by Mr Nunn that he had told the police that he was level with a tree when he activated the indicator, and said, "This statement does not appear in any of the police records." That was incorrect. It appears in the police notebook of Senior Constable Gauci. 8 It is true that the trial judge did express the view that if Mr Nunn had indicated his intention at all he had only done so at 20 to 30 metres from the intersection, which was too late to warn the vehicles behind him of his impending turn to the right. That may have provided a basis for a finding of negligence, depending upon the overall circumstances, but it is not the basis upon which the apportionment was made. I will come back to that in due course. 9 The other significant problem with the trial judge's decision is the question as to whether the brake lights on the International truck were operating. In the course of his judgment his Honour found that immediately before the collision the tail and other rear lights on the International truck were not illuminated. That, perhaps, is equivocal as to whether his Honour meant brake lights or not, but that question becomes a little clearer, as his Honour says that he accepted that as the driver of a heavy vehicle Mr Nunn would have slowed the vehicle by changing gears and activating the brake lights if they had been working. His Honour went on to say: "While the absence of tail and brake lights does amount to a breach of duty towards other users of the road, it was, in my opinion, not as significant, as a causal factor in the accident, as the failure to indicate the right hand turn." 10 It is accepted on all sides that there is simply no evidence that the brake lights were not operating. No witness, including Mr Dye, said that. There is no reason to think the brake lights were not working and, although it is not crystal clear, the evidence of the police officer as to the tests that were done at the scene with RTA officers would lead to a natural conclusion that that obvious test was done. 11 Thus, in two critical respects – first as to his Honour's finding that there was no indication by right hand indicator of an intention to turn and, second, his Honour's error as to the absence of brake lights – the judgment below cannot stand. 12 The issue arises as to whether this Court should itself make a decision about the question of apportionment or, indeed, liability. As I have earlier indicated, the evidence given by Mr Nunn that he had applied the indicators at a point which somebody has estimated, perhaps the police, to be 30 metres from the turn, might provide some evidence of negligence. That assessment would have to be made in the light of all the circumstances of the case. Counsel for the appellant submits that when the realities are observed it is almost certain that the estimates given by Mr Nunn were serious underestimates and that in order to bring the vehicle to a reasonable halt, even a quick halt, would have required more space than 30 metres. 13 An assessment of apportionment and liability by this Court has a very insecure foundation in this case because the very trenchant criticism by the trial judge of Mr Nunn cannot but have affected his overall view of the matter. Amongst other things he said: "I do not regard him as a reliable witness at all. The impression he made on me was that he was fabricating evidence to place himself in the best possible light and to exculpate himself from any blame." 14 This is a matter in which the police officers concerned were called and cross-examined. Two of the drivers were called and cross-examined and two experts were called and cross-examined. It seems to me that the time at which and the place at which the indicator was activated and the brakes were operated is critical to making any decision, first as to whether there was liability at all and, second, if so, what the relative apportionment should be. In my opinion, as unfortunate as it is, this Court is no position to make that assessment. 15 It is, thus, my proposal that the appeal be allowed, the judgment below set aside and the matter remitted to the District Court for re-hearing on the issue of liability only. In that event I would propose that the respondents pay the costs of the appellants and that the respondents, if otherwise qualified, have the benefit of a certificate under the Suitors' Fund Act 1951. The costs of the first trial should be left to the disposition of the judge hearing the second trial notwithstanding the fact that it is not a complete re-trial. 16 GILES JA: I agree. 17 MACFARLAN JA: I also agree. [Counsel were invited to put submissions as to the proposed costs order. No submissions put.] 18 GILES JA: The orders as proposed by Justice Gyles will be the orders of the Court. ********** 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.