YOUNG and ANOR v SAUNDERS [1996] NSWCA 575

YOUNG and ANOR v SAUNDERS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and COLE JJA 27 June 1996, 27 June 1996

[1996] NSWCA 575

Negligence — factual findings — appeal court not to interfere with findings which are based on trial judge's assessment of the credibility of witnesses

Clarke JA In a residential part of Broken Hill there is a T-intersection between Knox Street which forms the cross-bar of the T and Tuart Street. There is no evidence, we are told, of the direction in which those streets run, but for ease of understanding of my reasons, I will proceed upon the basis that Tuart Street runs north into Knox Street and that accordingly Knox Street runs from east to west.

The respondent was injured in Tuart Street near the mouth of the intersection sometime after midnight on 25 February 1989 when he was struck by a vehicle driven in a southerly direction by the appellant. He asserted that the appellant had been negligent and sued. The trial judge agreed and found a verdict in his favour for $105,000. It is agreed between the parties that the amount of the verdict is wrong as it involved an incorrect method of calculation. The correct figure of the verdict is $98,452 and if the appeal is unsuccessful, that figure should be substituted for the amount of His Honour's judgment.

There were in the notice of appeal which was filed two grounds related to damages but they have not been pursued. The only grounds with which this Court is concerned are whether His Honour was correct in finding that the appellant was negligent and whether His Honour was correct in finding there was no contributory negligence.

The sequence of events on that night were remarkable. They did not show up many of the actors in a good light; they certainly did not show up the respondent in a good light. It is, however, unnecessary to review those facts which are described adequately in the judgment under appeal.

It is sufficient for my purposes to say that the respondent and a friend drove into Knox Street and parked on the northern side of Knox Street, somewhere near a house which was situated on the south eastern corner of the intersection. At the time that vehicle became stationary, there were parked on the other side of the road two vehicles. There was a truck parked on the southern side of Knox Street, very close to the intersection and almost directly outside the house I have mentioned. Behind that there was a vehicle which was subsequently driven by the appellant and which was an orange vehicle.

According to the evidence, four persons, including the respondent's sister, emerged from the house, got into the orange vehicle and the driver then commenced to move out into Knox Street to travel in a westerly direction away from the scene. At that time the person who was with the respondent came across the road with a baseball bat and started striking the orange car and eventually broke the windscreen so that it became crazed. The respondent, according to his evidence, had not followed his friend but had travelled south across Knox Street and then down Tuart Street on its western side for a short distance and then he started to cross Tuart Street from west to east. At about the time he was doing

2 UNREPORTED JUDGMENTS

this, the driver of the orange vehicle who said she was terrified and was trying to get away, swung left into Tuart Street, drove a few yards and struck the respondent when, as he said, he was travelling from her right hand side, that is, from west to east. Only one other witness gave evidence as to the respondent's direction of travel prior to the impact. That was a Mr Edwards who would not appear to have been in the respondent's camp and who was a passenger in the front seat of the orange vehicle. He said, and I record here what appears in His Honour's judgment, that although he only caught a glimpse of the respondent, he saw him coming from the right. Accordingly, the only two persons who gave oral evidence concerning the direction of the respondent's travel prior to the accident, were the respondent himself and Mr Edwards. There was no oral evidence contradicting that version of the facts and unsurprisingly, His Honour accepted it. Not only that but His Honour accepted the evidence of the respondent himself. This likewise, I do not find surprising because the respondent's evidence was corroborated by the only witness who spoke of his direction of travel.

The appellant submits that His Honour was mistaken in accepting that version of the facts. The appellant point to two pieces of documentary evidence. The first, a sketch plan apparently prepared by the respondent shortly after the accident in which he drew a diagram with an arrow pointing across Tuart Street from east to west. If that arrow was meant to indicate his direction of travel, it was contradictory to his oral evidence. There are some problems of interpretation of the sketch arising from the symbols at the side which required that the pedestrian respondent indicate his position with a circle and an arrow. It may well be, as His Honour thought, that the preferable view is that the arrow would indicate the direction of travel followed by the respondent immediately before the accident but that is not the only view. Another view is that the respondent was simply indicating at the end of the arrow, where he was at the time of the impact, the circle being simply indicative of a pedestrian. I frankly am not quite sure that anything can be drawn from the sketch plan but I do record that His Honour thought that the appellant's view that it was contradictory to the respondent's oral evidence was preferable.

There was also a written statement by the respondent given to an investigator which was said also to be contradictory to his oral evidence. In that statement, he spoke of his friend striking the other vehicle for no apparent reason and then he went on to say:

"While this was occurring, I had gone into Tuart Street and was standing on the lawn and also on the kerb of Tuart Street, I was not standing on the road. Whilst standing there. I was calling out to my sister, Angela. I was given little or no warning when I saw the orange vehicle heading towards me; it had its lights on. The vehicle hit me with the left hand front mudguard and bumper bar." That version suggests that he was standing off the road and was stationary immediately prior to being struck and was, as counsel submitted, not consistent with his oral evidence. Counsel submits that there are other differences between that statement and his oral evidence, particularly insofar as he said in his oral evidence that he didn't see the activities of his friend. What counsel said is that his Honour should have found in the light of that statement, that the more probable version of events was that the respondent crossed Tuart Street from west to east, became stationary on its eastern side and then, because of his position after the impact, he must have proceeded back onto the roadway from the driver's left hand side. As I understand the judgment, this type of submission was put to the trial judge who rejected it saying that he accepted both the plaintiff and Mr Edwards, each of

URJ YOUNG and ANOR v SAUNDERS (Cole JA) 3

whom gave oral evidence, to the effect that the respondent was travelling from the west to the east immediately prior to the accident.

As it seems to me, this is a clear case in which the decisions in Abalos (Abalos v Australian Postal Commission (1990) 171 CLR 167) and De Vries (Devries v Australian National Railways Commission (1993) 177 CLR 472) apply and there is no basis upon which this Court can interfere with the judge's conclusion, based as it was on, in part at least, on his assessment of the credibility of the witnesses. Certainly the version given by Mr Edwards and the respondent could not be said to be glaringly improbable; nor could it be said that it was contrary to uncontroverted objective evidence. The fact of the matter is that in a strongly contested trial the judge accepted the corroborated evidence of the respondent and in my opinion this Court cannot interfere with the finding. It is also clear, once that finding is accepted, then the conclusion that the appellant was negligent follows clearly. It was also submitted that the respondent was guilty of contributory negligence in failing to take evasive action and in running across the road.

I find no error in the manner which His Honour dealt with this issue, given the facts accepted by His Honour, it would seem to me that the orange vehicle turned suddenly and quickly into Tuart Street and was accelerating at the time that it struck the respondent. In those circumstances the view of the trial judge, must prevail.

In my opinion the appeal should be dismissed with costs. I have already indicated that the judgment below should be set aside and in lieu thereof, judgment should be entered in the respondent's favour in the sum of $98,452 to date from the date of the judgment at first instance.

Handley JA I agree

Cole JA I also agree. Clarke JA: The orders will be as I just indicated.

Appeal dismissed with costs. Judgment set below be set aside and in lieu thereof, judgment should be entered in the respondent's favour in the sum of $98,452 to date from the date of the judgment at first instance.

Counsel for the appellant: R Sutherland Solicitors for the appellant: GM Meadows Counsel for the respondent: C Hickey

Solicitors for the respondent: Fitzpatrick Swift, Broken Hill