Braund v Henning

[1988] HCA 36

HIGH COURT OF AUSTRALIA

Wilson, Brennan, Deane, Toohey and Gaudron JJ.

ROBERT MORRIS BRAUND v. EWALD HENNING F.C. 88/031

1 July 1988

Decision

WILSON, BRENNAN, DEANE, TOOHEY AND GAUDRON JJ: This is an appeal from a unanimous decision of the Full Court of the Supreme Court of Queensland whereby the Court set aside a judgment in favour of the appellant for damages he suffered when his motor cycle came into collision with a utility motor vehicle driven by the respondent at the intersection of Cook Highway and Reed Road, north of Cairns. The circumstances surrounding the collision fall within a small compass but unfortunately the evidence raises questions of fact upon which the learned trial judge and the Full Court have disagreed.

2. The collision occurred when both the respondent's utility and the appellant's motor cycle were travelling north along Cook Highway approaching the intersection with Reed Road. For vehicles travelling north the highway consisted of a single bituminized lane in good condition, but from a point about 200 metres south of the intersection the road surface had been widened to provide a second lane so as to allow vehicles continuing north past the intersection to pass to the left of vehicles which had slowed down in order to make a right hand turn into Reed Road. After the intersection the highway narrowed again to a single lane. The left-hand lane was marked with an arrow pointing straight ahead while the principal lane was marked by an arrow pointing to the right in the direction of Reed road. The photographs of the highway in the vicinity suggest that the surface of the left-hand lane was not in as good a condition as the principal lane. The two lanes were divided by a broken white line with a continuous line dividing the north-bound lanes from the south-bound side of the highway. At the trial the appellant's case was that the respondent's utility had overtaken him some two kilometres prior to the intersection and that the two vehicles had then continued separated by a distance of about three car lengths and travelling at approximately the same speed. He said that as the utility approached the intersection it was travelling mostly in the right-hand turning lane but straddled the broken white line and it occupied about half a metre of the left-hand lane. The utility slowed suddenly just before reaching the intersection, apparently because of a vehicle which was travelling south along the highway and turning left into Reed Road. The appellant said that he did not see any indication from the utility or its driver that a right-hand turn was intended. The appellant attempted to clear the rear of the utility by swinging to his left but the right-hand handle bar of the motor cycle struck the left-hand rear of the utility causing him and the motor cycle to fall to the highway. The appellant suffered serious injuries in the accident.

3. The respondent's version of the accident was that he had approached the intersection at a speed of 80 to 85 kilometres per hour and that when he was approximately 250 metres from it he looked in his rear-vision mirrors, saw no following vehicles, activated the right-hand indicator and commenced to slow down. He was then driving wholly within the boundaries of the right-hand turning lane. He changed to second gear and was travelling at a speed which did not exceed 20 kilometres per hour when he commenced to turn right. There was no traffic coming from the opposite direction in the immediate vicinity and just as he commenced to turn right he felt and heard the impact, at the left-hand rear of his utility, between his vehicle and the appellant's motor cycle. He completed the turn into Reed Road and stopped the utility on the left-hand side of the road. He returned to the intersection where he saw the injured appellant and his motor cycle lying on the highway.

4. The respondent had a passenger in his utility who gave evidence which in all material respects corresponded with that of the respondent. There was another witness named Trinder who had been driving a vehicle south on Cook Highway towards the intersection. He said that his vehicle was about 400 metres at least to the north of the intersection when he saw the respondent's utility commence the turn into Reed Road. He noticed what he first believed to be a garbage bag falling to the left-hand side of the utility as it turned right. In fact, what he thought to be a garbage bag was the appellant. He made no mention of any vehicle travelling south ahead of him between his vehicle and Reed Road and this led the learned trial judge to reject that portion of the appellant's evidence in which he had said that there had been such a vehicle about to turn left from Cook Highway into Reed Road.

5. The trial judge made some important findings with respect to the credibility of the witnesses. He was impressed by the appellant as a generally truthful witness subject to the non-acceptance of his evidence of another vehicle turning left into Reed Road. On the other hand, the respondent did not make a favourable impression on the trial judge who regarded him as an unsatisfactory witness. Nor did the trial judge accept the evidence of the passenger in the respondent's utility. Since no question had been asked of Mr Trinder about whether there was another vehicle travelling south, his Honour's rejection of the appellant's evidence that there was such a vehicle is susceptible, in the light of his findings as to credibility, of possible criticism. The appellant did not, however, challenge his Honour's finding in that regard and we do not pursue that aspect of the matter.

6. It should be mentioned that evidence was also given by a police constable who saw the appellant whilst he was in hospital about six weeks after the accident. The constable said that the appellant's account of the accident as then given to him was as follows:

"I was going back to work after holidays, and as I come to the intersection I was just riding along, and all of a sudden the car in front of me stopped, and I hit him, and here I am."

The appellant also told the constable in the course of that interview that he had been riding his motor cycle in the lane nearest the centre of the highway. The trial judge was not prepared to proceed on the basis that what the appellant had said to the constable accurately described the relevant events. The judge concluded that the appellant at the time of the interview:

"was in the course of a very painful convalescence and whilst well enough to be interviewed, was ... poorly placed to give an accurate and detailed account of himself and of what he did at the time of the accident.... There was real scope for a mistake and/or a misunderstanding on the part of both the plaintiff and Constable Pearson during the course of this very brief encounter at the hospital".

In that context, his Honour made his findings about the accident on the basis of his assessment of the effect and reliability of the direct evidence which was before him.

7. The trial judge summed up his findings in the following terms:

"I find that the defendant as he approached

the intersection was not driving wholly in the right-hand turning lane but that his vehicle was driven partly in both lanes. I find that the defendant did not gradually reduce speed as he approached the intersection but reduced speed suddenly, whether on account of inadvertence or because his speed on the approach was in excess of what was a safe speed for a turning movement either generally or because of the toolboxes in the rear or because of some other factor. I find that his speed and manner of driving was such as to reasonably lead following traffic to the belief that he intended to drive through the intersection. I find that he suddenly and without any adequate warning or indication of his intention so to do turned right toward Reed Road."

His Honour went on to conclude that the collision and the plaintiff's injuries were caused by the negligence of the respondent and that there was no contributory negligence on the part of the appellant.

8. The principal judgment in the Full Court was given by Dowsett J. with whom Matthews J. and Ryan J. agreed. Their Honours came to the conclusion that after making due allowance for the findings of the trial judge with respect to the credibility of the witnesses, there nevertheless were some very material aspects of the evidence of the appellant which should have been rejected by the trial judge.

9. Dowsett J. referred specifically to the evidence of Mr Trinder as to where the respondent's utility was when he first saw it. The witness had said that the utility had commenced to turn and it was very close to the centre where one would expect it to be. Dowsett J. concluded that the trial judge, who regarded Mr Trinder as a "truthful witness", must have overlooked this evidence and consequently have been mistaken when he found as a fact that the respondent's utility was straddling the broken line before commencing the turn into Reed Road. However, in cross-examination Mr Trinder had agreed that because of the distance his vehicle was from the intersection and the curve in the highway he could not positively say where the utility was when it commenced the turn. In our view it was clearly right for the trial judge to say that Mr Trinder's evidence did not assist him in determining the position of the respondent's utility on the highway when the respondent commenced the turn to the right. Mr Trinder's vehicle was at least 400 metres north of the intersection at the time when he first saw the utility and it had already commenced to turn. The respondent's utility would need only to have travelled a few metres into the turn before it could well give the appearance and position described by Mr Trinder even if it had commenced the turn suddenly from its position on the highway as found by the trial judge. It follows therefore that the trial judge's acceptance of Mr Trinder's evidence is not inconsistent with his finding in favour of the appellant as to the position of the respondent's utility on the highway before it commenced the turn. Reference was made in the evidence to the presence of two small tyre marks approximately half a metre long on the highway within the turning lane which may have been left by the respondent's utility at about the point of impact. But, as Dowsett J. recognized, it would be difficult to draw any inference from these tyre marks. In any event, if (as the police constable who gave evidence about them suggested) those marks were made at the moment of impact, they were in no way inconsistent with a finding that, a fraction of a second before the impact, the respondent's utility was straddling the broken white line.

10. A second aspect of the evidence which moved the Full Court was that given by the police constable who interviewed the appellant in hospital. As we have seen, the appellant told the constable that the respondent's utility had suddenly stopped in front of him and that he had been riding his motor cycle in the lane nearest the centre of the road. Both Matthews and Dowsett JJ. expressed the view that this evidence of the police constable should have led to the rejection of the appellant's inconsistent evidence given at the trial. Reference was made also to an allegation made in the statement of claim that the respondent's utility stopped "suddenly and without warning". It is acknowledged, however, that the appellant was not cross-examined on the pleading. More importantly, the issue arising from the prior inconsistent statement of the appellant was a matter for the trial judge. There was evidence, confirmed by the police constable himself, of serious injuries suffered by the appellant and of the painful and difficult convalescence he was undergoing at the time of the interview. It is apparent that the trial judge was fully seized of the issue and in our view he was entitled to decline to accept that the account given by the appellant to the constable "accurately and in all material respects describes the relevant events".

11. Finally, the Full Court concluded that, even on the appellant's own case, there was insufficient evidence to justify an inference of negligence against the respondent. The evidence of braking suddenly and without warning, of turning to the right without any indication and of travelling astride the dividing line thus signalling an intention to continue travelling north along the highway, even if accepted, were not causative of the collision from which the appellant's injuries arose. Their Honours were of the view, in substance, that the collision occurred because the appellant was not keeping a proper look out, was travelling too close behind the respondent's utility and simply ran into the back of that vehicle.

12. We recognize the force of the observations in this regard of Matthews and Dowsett JJ. However, with respect, we cannot accept in their entirety their Honours' conclusions. Of course, it is well recognized that a finding of negligence in a particular case depends on the combination of circumstances of that case. The citation of other cases said to reflect analogous circumstances is of limited value. It is also recognized that in the case of conflicting evidence the trial judge is well placed to determine where the truth lies.

13. We have come to the conclusion that there was evidence to support the critical findings of fact made by the trial judge, which appear in the long passage quoted from his Honour's judgment earlier in these reasons. The conjunction of these findings coupled with the character of the highway in the locality of the intersection entitled the trial judge to conclude that the respondent was negligent and that his negligence was causative of the accident. The findings interact with each other; they do not stand alone. It was the fact that the respondent was driving partly in the left-hand lane, and thereby encouraged an expectation that he was continuing along the highway, that rendered the sudden braking and inadequate warning of intention to turn to the right significant in terms of causation.

14. The trial judge was not satisfied that the appellant was guilty of negligence which contributed to the collision and his consequential injuries. However, we have recognized the force of the criticism made of the appellant's conduct by their Honours in the Full Court. It is, in our view, plain that the appellant must bear some responsibility for failing to avoid the consequences of the respondent's negligence. We have considered whether the appropriate course is to order a new trial with respect to liability. The parties have not urged the Court to take such a course although the notice of appeal is wide enough to encompass such an order. We do not think it would be proper in this case to order a new trial because the circumstances of the collision are clearly established by the findings of primary fact which the trial judge made and which we have held he was entitled to make. Nor do we think it necessary to remit the matter to the Full Court for apportionment of liability as that course would merely expose the parties to additional costs. In the circumstances, we propose to make the apportionment. While we recognize that the driver of a following vehicle which collides with the vehicle which is proceeding ahead of it is usually held primarily liable for the consequences of the collision, we find that the circumstances of the present case, in the context of the construction of the highway in the vicinity of the intersection, dictate a different result. The north-bound lane nearest to the centre of the highway was for all practical purposes the principal lane for all traffic approaching and passing the intersection and this placed the driver of a vehicle intending to turn into Reed Road under a duty of care to following traffic to make his intention plain. We think the responsibility for the collision should be shared between the parties in the proportions of 60 per cent to the respondent and 40 per cent to the appellant.

15. The appeal should be allowed and judgment given accordingly.

Orders

Appeal allowed with costs.

Set aside the judgment of the Full Court of the Supreme Court of Queensland save in so far as it allows the appeal to that court and in lieu thereof order that the judgment entered by the trial judge in favour of the plaintiff be reduced by 40 per cent (leaving the order for costs of the trial undisturbed) and that the defendant's costs of the appeal to the Full Court be paid as to 40 per cent by the plaintiff.