Braund v Henning

[1988] HCATrans 129

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B81 of 1987

B e t w e e n -

ROBERT MORRIS BRAUND

Appellant

and

EWALD HENNING

Respondent

WILSON J
BRENNAN J

DEANE J

TOOHEY J

GAUDRON J

Braund(2)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 27 JUNE 1988, AT 2.18 PM

Copyright in the High Court of Australia

BlT 1 / 1 /VH 1 27/6/88

MR D.F. JACKSON QC:  May it please the Court, I appear with

my learned friend, MR P.A. KEANE, for the appellant.

(instructed by Gayler Cleland & Dunstan)

MR R. HANSON, QC: If the Court pleases, I appear with my

learned friend, MR R. MYERS, for the respondent.

(instructed by MacDonnells)

MR JACKSON:  Your Honours, may I hand to the Court copies of

our outline of submissions?

WILSON J:  Yes, thank you. Yes, I think you could open,

Mr Jackson.

MR JACKSON:  Thank you, Your Honour. Your Honours, may I

commence by submitting thisJ that the appeal turns,

in our submission, ultimately upon the two issues

stated in the outline of submissions, namely, should

the Full Court have allowed the appeal on liability

and, secondly, if it did, what course should it have followed? May I turn immediately to those matters?

In our submission, the Full Court was in error. If

I could deal with the first issue, and I need to start,

if I may, with the findings of fact at first instance.

Your Honours will have seen that the collision

occurred on 12 February 1982 when the appellant's

motor cycle collided with the rear of the respondent's

utility. At the trime, both parties had been

travelling north along the Cook Highway north of

Cairns and the collision occurred at · a junction

where Reed Road entered it from the east. The

plaintiff and the defendant had given two quite

different versions of the way in which the accident

occurred. Could I go first to the non-contentious

parts and then indicate the two versions and the

findings upon them.

The non-contentious parts, Your Honours, appear

at page 139, line 40 ,in the paragraph commencing:

Both the defendant's utility - - -

and going through to page 140, line 2. The photographs

referred to are exhibits 15 and 16 in a pocket at

the rear of the volume; I do not intend to take

Your Honours to those at this point. The defendant's

version - if I could come, then, to the two versions which were given - the defendant's version was that

he had seen no motor cycle behind him; that he gave

adequate warning of his intention to turn right - - -

WILSON J:	He had seen nothing behind him.
MR JACKSON:	Yes, Your Honour, he saw nothing behind him.

Sorry, Your Honuur.

WILSON J:  Yes, he had seen nothing.

BlTl/2/VH	2	27/6/88
Braund(2)

MR JACKSON:  That he gave adequate warning of his intention to

turn right and that with no prior warning, the
motor cycle ran into the back of the utility. That
appears, Your Honours, again at page 140, the third

line on the page, going through to the next page,

page 141, line 10. That was the respondent defendant's

version of what occurred.	The judge did not believe
him.	The plaintiff's version was, in short, that

the defendant's vehicle had overtaken him some two

kilometres before. The reference to two kilometres

appears at page 13, line 20 -I shall not go to the

actual passage, but that is where it is to be found -

that they continued along with about three car lengths

between them and that the defendant gave no indication

that he had any intention to turn into Reed Road,

but suddenly slowed dramatically at the intersection

with the plaintifr being unable to avoid a collision
with the-rear left corner of the utility.

Your Honours, the plaintiff's version

commences at page 141, line 11,and it goes through to

page 142, line 1. Those were essentially the

competing contentions as to the events which occurred. the evidence and he set out his reasoning at page 145,

line 7, through to page 147,line 40.	The reference
is 145 ,line 7,through to 147, line 40.	Having done

that, he then proceeded to his ultimate findings of

fact which appear at page 147, line 42,through to

page 148,line 35. I am sorry to have taken a little

time in getting to this point, but may I, having done
that, say this: the result was as that passage

indicates, that His Honour found the defendant, the

present respondent, entirely to blame. That finding was reversed in the Full Court and the factors which

appear to have weighed with the court on appeal were

two in number.

They were, first, the evidence of the witness, Trinder,and,secondly, evidence as to the answers

given by the plaintiff when interviewed by a police

officer in hospital some six weeks after the accident.

May I deal with those matters in that order.

Your Honours, Trinder was an independent witness who

had been travelling in a car in the opposite direction

- that is, travelling south at the time of the accident -

and he was approaching the intersection. His evidence

was in conflict with that of the appellant on one
point, that point being that the plaintiff had said
that he believed that there was a vehicle in front of

Trinder, also travelling south, which turned to its

left into Reed Road. His evidence on this point is

at - I need to refer to it because a question arises

about what it meant - his evidence is at page 18,

line 17,through to page 1~ line 5. Your Honours

wil'i ::;ee d1c1 t:: a i eI:er e11ce to the vehicle coming in

the opposite direction.

BlTl/3/VH	3	27/6/88
Braund(2)

WILSON J:  What does it mean, at line 29:

It would have been turning in before he

approached the turning.

MR JACKSON:  Your Honour, it seems to mean that it would

have been turning into the Reed Road, turning to

its left.

WILSON J:  before he approached the turning -

being the respondent?

MR JACKSON:	The respondent, yes.
WILSON J:	Yes.

MR JACKSON:  The other passage in relation to that other vehicle appears at page 29 - cross-examination -

line 5 to the end of the page. The point of referring

to that evidence is this·, that there is nothing in the evidence to indicate that the appellant placed

any significance upon the presence of that vehicle

in relation to the stopping movement of the

respondent's vehicle. He referred to the existence

of that vehicle coming the other way but he did not

place any significance on it in his evidence. But

I mention that, Your Honours, because the primary

where, speaking of it in a passage which goes from	judge referred to this evidence at page 141, line 30,
line 30 to line 48, His Honour suggests that the
sudden slowing was, it was suggested, apparently on
account of that vehicle.

Now, Your-Honours, the appellant had not suggested

that the presence of the car was a factor. That

appears from the pages to which I referred. But

His Honour did not accept the plaintiff's evidence that

there was such a vehicle but preferred Trinder's

evidence that there was not. That appears at pages 147,

lines 10 to 20, and at page 144, lines 11 to 50.

WILSON J:	144?
MR JACKSON:	144, Your Honour, lines 11 to 50.
WILSON J:	144, oh, you have taken us back.
MR JACKSON:	Now, Your Honours, I have taken a moment in

dealing with that because it is the foundation of the

Full Court's view that Trinder's evidence was

accepted by His Honour, except in one respect, which

he also should have accepted, and the Full Court

then worked on from there, as it were. C0~:d I cu~s,

then, to the critically important part of the primary

judge's findings in relation·toTrinder's evidence.

That. appears at page 144, line 50, going to over to

line 3 on page 145. Your Honours will see that

on page 144, about line 47, he said:

BlTl/4/VH	4	27/6/88
Braund(2)

In particular, I am satisfied that there

was no vehicle ahead of him turning left
in Reed Road at any material time and,

accordingly, I do not accept the plaintiff's

evidence that there was. Trinder's evidence

does satisfy me that the collision between

the two vehicles occurred at or about the

same time as the utility commenced its turn

to the right. It does not assist me,

however, in finding where on the road in

relation to the right turning lane and the

through lane the defendant was driving when

he commenced to turn right.

Now, Yom: Honours, the principal judgment in the

Full Court was that of Mr Justice Dowsett, which

commences at page 159 and at page 160 point 6 he

refers to the evidence concerning the othervehicle

and then at page 161 comes to Trinder's evidence,

the relevant passage commencing at point 6 on

page 161. His Honour said:

His Honour accepted Trinder's evidence,

and so it follows that in a material

particular the respondent's evidence is

contradicted, namely, the presence of

another motor vehicle in the intersection

approaching from the north and turning left.

The whole rationale for the conduct alleged against the appellant by the respondent disappears.

Your Honours, may I come back to that passage in just

a moment? His Honour then quotes the passage to

which I have just referred, from the primary judge,

and goes on to say:

With all respect to His Honour, this seems to

overlook a significant portion of the evidence

of Trinder. At page 70 of the record, line 11,

14-20, this passage appears:- "What I would like you to do, if you could,

tell us if you can recall the position of the

utility on the roadway when you first observed

it?" : :.. -

and he said -

"It was very vivid in my mind. I would say

that vehicle was turning and it was very

close to the centre, the normal position where

it would be. At the time, it appeared quite

clear. The only difference was this thing

f al.lin.g out cf th2 b:· ~1~ 4 "-

The thing being the plaintiff falling from his motor

vehi.cle.

BlTl/5/VH	5	27/6/88
Braund(2)

MR JACKSON·(continuing):  Now, Your Honours, His Honour

then goes on to say:

Elsewhere in his evidence Trinder

asserted that the incident occurred as

the vehicle was turning. In particular,

at p.73, in cross-examination the witness

was positive that the vehi~le was very

early in the turning process when he saw

it. It inevitably follows therefore that

on the evidence of Trinder, which was accepted

by the learned trial Judge, the vehicle

was close to the centre line in the position

in which one would expect it to be if it

were performing a right-hand turn. I consider

that this Court would be justified in taking
the view that His Honour accepted Trinder

generally, rather than that he rejected

this part of his evidence. I think it

more likely than not that his Honour overlooked

this aspect of the evidence rather than

that he rejected it.

Your Honours, in our submission, in taking that
view His Honour must have overlooked that part

of the evidence. Your Honours have seen that

the primary judge said that Trinder's evidence
did not assist him in finding where on the road

the respondent's vehicle was at the time it commenced

its turn. The Full Court said that that overlooked

that part of the evidence quoted by Justice Dowsett

and pages 161 and 162. That evidence was evidence

which was in the examination in-chief of Trinder

but he was cross-examined. He was cross-examined

on the point and the evidence on the point appears

in-chief at pa~e 76 line 12, and the evidence in

cross-eKamination appears at page 79 and in particular

at about line 20 where he was asked:

Because of the distance and the curve -

the.slight curve in the road, you cannot

positively say where the vehicle was turning

from, can you?----Yeah, that would be correct.

Your Honours, the distance to which he refers

is the fact that he was approximately some 400 yards

back from the intersection. The curve refers

to the fact.that as he came south the road curved

away to his right. Your Honours will see the

location in exhibit 18 - a photograph taken in

the direction in which he was travelling - in

the pockets at the back of the record.

WILSON J:  I tbi.nk he says, "At least 400 metres", does

he not?

BIT2/l/SDL	6	27/6/88
Braund(2)

MR JACKSON:  Yes, Your Honour. He is a considerable distance away.

DEANE J: Mr Jackson, in that exhibit 18 is the break in the

centre line what you can just see around the

curve?

MR JACKSON:  Yes, Your Honour. Your Honour will see that

the telegraph posts have white paint on the base

of them. They are the posts indicating the intersection

and, if Your Honour looks at the other two exhibits,

15 and 16, but 16 more particularly, it seems

likely that those are the posts which are on

the two corners of the intersection. There is

one on the other side of the road as well.

DEANE J: So, you could see the bag falling off the left-hand

side even if the utility was really going straight

ahead?

MR JACKSON:  Yes.

BRENNAN J: Mr Jackson, looking at exhibit 16, that is

the direction in which the plaintiff and the

defendant were both travelling?

MR JACKSON:	Yes, Your Honour.
BRENNAN J:	Does the left-hand lane, which is the straight

ahead lane, peter out after the intersection?

MR JACKSON:  Yes, it does, Your Honour. Looking at it

in terms of exhibit 18, which is going the other

way, it has petered out by that stage.

BRENNAN J: It looks as though it is the original tarmac

surface which is the right-hand lane, is that

correct?

MR JACKSON: Yes,. Your Honour.

BRENNAN J:  And what has happened is that they have broadened the tarmac on to what used to be the shoulder

and made that a straight-ahead lane and then

that new section peters out?

MR JACKSON:  Yes. And, Your Honour, I was going to say

two things to which I will come shortly .. One

is that if one looks particula~ly at exhibit 15,

one sees that a vehicle which continued, really,

in its original direction of travel, north, would

be going in the right-hand lane or in both.

It would require a conscious effort, in effect,

to move into the left lane with the newer tarmac

on. The second thing is that that left lane,

on the evidence·, wab ~i.1 .:;orne :..c:tsp<2ct.s ro)Jgh and

more difficult for a motor cycle rider to be on.

7

BIT2/2/SDL	27/6/88
Braund(2)

WILSON J:. 15 is proceeding north?

MR JACKSON:  Yes, Your Honour; 15 and 16 are proceeding north,

18 south. Your Honours, perhaps I might say

one thing: it was entirely a matter for the

primary judge, of course, to determine whether
he accepted any and what part of Trinder's evidence

and the relative weight to be given to it. But,

in the light of the passage at page 79 in cross-

examination, it is hardly surprising that the

finding which the primary judge in fact made

was that to which I referred Your Honours earlier,
which appears at the bottom of page 144 and goes

to the top of page 145, that he did not think

Trinder's evidence assisted him in finding where

on the road, in relation to the right-turn lane and the through lane, the defendant was driving

when he commenced to turn right. With respect

to Their Honours in the Full Court, to say that

His Honour overlooked that evidence really cannot

be correct~ The finding which he made is entirely

consistent with that evidence and seems, with

respect to His Honour, the proper.finding to

have made in the light of it.

Your Honours, could I return to a matter to

which I said I would return a moment ago. That

appears at page 161 point 8, where His Honour

said:

The whole rationale for the conduct alleged against the appellant by the respondent disappears.

The rationale being, so it would seem, the presence
of another vehicle turning left. Your Honours,
the evidence did not suggest in any way that

the presence of that vehicle played any causative

role. The appellant's case was that for whatever

reason, be it inattention, miscalculation of

the location of the turn, the making of a late

decision to turn, or simply want of skill or

competence as a driver, the respondent braked

suddenly and severely and without warning.

Your Honours, may I move then to the

second specific matter with which we take issue

in relation to Their Honours' decision and that

was that the Full Court relied on the evidence

of a police officer, Pearson, who had interviewed

the plaintiff while he was in hospital. Your Honours,

the police officer's evidence on the point is

very short. It appears at page 82, line 15,

and it goes through to page 83, line 8. The

substance of the conversation is in the long

paragraph on page 82 and may I direct Your Honours'

attention to two parts of it which were treated

as significant by the Full Court.

BIT2/3/SDL	8	27/6/88
Braund(2)

One of them is at about line 54 where the plaintiff

said:

"Yes. I was going back to work after

holidays, and as I come to the intersection

I was just riding along, all of a sudden

the car in front of me stopped and I hit

him, and here I am."

Their Honours treated the word "stopping" as

of importance. The second passage is the passage

at the top of the third line of page 83:

"In what lane were you travelling?" "In

the one nearest the centre of the roadway."

Your Honours, that evidence was considered by

the primary judge and his finding upon it is

at page 143, line 48, going through to page 144,

line 10. Your Honours will see that he accepted the

evidence as to the conversations but said he

was:

not prepared to act on the basis that what

was said there accurately and in all material

respects describes the relevant events.

The plaintiff was in the course of a very

painful convalescence and whilst well enough

to be interviewed,was, in my view, poorly

placed to give an accurate and detailed
account of himself and of what he did at

the time of the accident -

et cetera. He goes on to the end of that paragraph.

Your Honours, I shall come to the evidence on

I should have said, did not recall the conversation. the point in just a moment but the plaintiff, recall what took place in the conversation.

His Honour's finding, in our submission,

was perfectly open in two respects:  namely,

as to the plaintiff's condition and as to the

content of the statements but the Full Court

took the view that His Honour was wrong in adopting

that course. The passages in the judgments in

the Full Court appear in the judgment of

Mr Justice Dowsett, that is page 163, point 3

to point 6, which is a recitation of the evidence;

at page 164 point 8 to page 165 point 1 -

Your Honours, I will be coming in just a moment

to the evidence upon which the observation in
the last two full sentences on page 164 is based. _

It dnps not, with respect, quite do justice to

the plaintiff's evidence - and at page 166 point 7

throughto page 168 point 1. Mr Justice Matthews,

BIT2/4/SDL	9	27/6/88
Braund(2)

the other member of the Court

who delivered reasons for judgment, had dealt with

the issues - - -

BRENNAN J: Before you leave that, Mr Jackson, is there

any passage in which the judgment of Mr Justice Dowsett

treats the admission made to the police officer

as evidence of the truth of the facts stated?

MR JACKSON: It does not appear to, Your Honour, although

it was perfectly open to do because it was evidence
of a statement made by a party against his interests,

one might have thought. But His Honour treats

it only as going to the question of credit so

far as one can tell.

Your Honour, I should also say Mr Justice Matthews

dealt with the matter at page 157B point 4 through

to page 157C point 7.

(Continued on page 11)

BIT2/5/SDL	10	27/6/88
Braund(2)

MR.JACKSON (continuing): Now, Your Honours, the substance

of the matter in just a moment, if I may, but

may I deal with one matter in passing in relation

to the observations made by Mr Justice Matthews

at the top of page 157C. Your Honours will,

there, observe that His Honour supported his

view by saying that:

In the statement of claim ..... it is alleged that the vehicle "came to a halt".

Now, Your Honours, the statement of claim appears

at page (iii)and the reference is to paragraph 3.

Your Honours, the statement of claim is not verified; pleadings in the Supreme Court not being required to

be verified. The pleading is drawn by counsel, as

Your Honours will see at the end of it, on page (v)

and, and perhaps most importantly, the contents of

that paragraph were never put to the plaintiff. If

it were to be suggested that, in some way - well,

the particular words used in the pleading were

to be held against him, then the content of it should

have been put to him and, Your Honours, there was no

evidence to show that the plaintiff ever knew that those

words were in the statement of claim. Your Honours,

I mention that in passing. May I return, then, to

the substance of the matter.

Our submission is that on the evidence the

primary judge was perfectly entitled to make the

findings which he did, that involves consideration

of two aspects: the first is the evidence as to the

plaintiff's condition at the relevant time; t'he

second is as to the meaning of those statements

and,Your Honours, could I turn, then, to the first

of those matters. Did the evidence as to the
plaintiff's condition at the time of his making

the statement support the view which the primary

judge took as to his condition?

In that reeard, could I take Your Honours~

first to the appellant's evidence at page 30'. In

cross-examination, at about line 34, he was asked:

So, you would have had a clear recollection

of what occurred when you were talking to

Constable Pearson?--No, I even asked my

own wife and my father and my friends whether

I am making sense when I was talking. I

was under drugs for the first four weeks. I wa~ in pain constantly. I didn't know where I was.

That goes through, Your Honours, from that passage

to the bottom of the page and to page 31, about line 15.

BlT3/l/SH	11
Braund(2)	27/6/88

He said, in the fourth and fifth line:

I was still on drugs every four hours.

I remember that he did come.

Your Honours, could I refer also to two pages

further on, on page 33, lines 5 to 17. He gave

evidence that he could not recall the conversation

in detail. The extent of his injuries appears at

page 90 in the hospital report and, as appears from

the bottom of page 90, the:

Initial post operative course was stormy.

Your Honours will see that he was still being treated and a further operation on 26 February -

that appears at page 91. - At page 101, in the

report of the orthopaedic surgeon who treated him,

it was said, in the second paragraph on that page:

Mr Braund is making a good recovery from

severe and multiple injuries.

At page 107, in the report of the clinical

psychologist, in the third paragraph, she refers

to the conversation she had with him and then, at

page 109, gave her own views and Your Honours

will see in the first four lines on page 109, said

that he:

Is a man of average intelligence whose skills

are somewhat above average in performance
areas but somewhat below average in verbal

or clerical areas.

At page 118, in an exhibit which was a quantum

statement which set out his pain and suffering

and other matters, Your Honours will see at the

end of the first new paragraph on page 118, he

said:	I suffered great discomfort being innnobilised
in bed. It -

and by that, it seems clear enough he means from

the opening words of the paragraph, pain -

It was my constant companion.

And, finally, Your Honours, at page 83, in the

cross-examination of the police officer, lines 25

to 30, he said:

·" '.It was obvious that -

BlT3/2/SH	12	27/6/88
Braund(2)

he -

was still in some pain from the injuries

he had received.

And, that:

He was unable to move on the bed.	He had
several weights on his legs.

He said:

I presume he would be in pain, yes.

Your Honours, in those circumstances, there is

no reason, in our submission, why the primary judge,
again, having seen and heard the witnesses, and
especially the plaintiff's evidence at the passages
to which I have referred, was not entitled to say

what he did at pages 143 to 144 and, Your Honours, there is no particular reason why he was not right

in thinking that the plaintiff, trussed up like a

bird in his hospital bed, was not poorly placed to

give an accurate and detailed account of himself

and so on.

Your Honours, if I could turn from that to the

meaning of what was said by the plaintiff in that

statement to the police officer - that statement

was made in the shortest form - I have taken

Your Honours to what it was. He used the word

"stopped" but, in our submission, Your Honours,

in ordinary parlance, the use of the word "stopped"

is not inapposite to describe a collision caused

when one vehicle runs into the back of another. It

does not require a close examination of the question

whether the first vehicle has or has not actually

come to a half.

Your Honours, the second matter in relation to the meaning of what was said,and this is the point

emphasized by Mr Justice Dowsett, related to the

location of the plaintiff's motor cycle in connection

with the lanes - that appears at page 167 in

His Honour's judgment and in the last paragraph on

the page, he said he:

Can see no basis for the assertion that

there was "real scope for a mistake and/or

misunderstanding". The question asked and

answered was a very simple one:

Q.: - "In what lane were you travelling?"

And he said:

A.: - "In the one nearest the centre of the roadway".

BlT3/3/SH 13 27/6/88

Braund(2)

Now, Your Honours, the plaintiff's evide~ 2

at the trial was that the defendant's ve: .le straddled the lanes once the road widenec. ;:or the turning lant· and that he, himself, was in the left lane but very near the line dividing the lanes. That appears, Your Honours, from

page 16, lines 30-40 of the examination-in-chief.

It appears in cross-examination, at page 28,

lines 10 to 20. I would refer Your Honours,

particularly, in passing to the question and

answer commencing at line 20 on page 28. It

appears also at page 33, line 50 and, going

through to page 34, line 10 where he described

where he was;- page 35, lines 9 to 25 and,

finally, Your Honours, in re-examination at

page 44, lines 15 to 37. Your Honours will see,

particularly at about line 22, h~ said he was

very close to the white line.

Now, Your Honours, that was the evidence on

the point and reference was made by

Mr Justice Dowsett at page 1~7 and page 168 to

the effect of the difference between that evidence

and the short statement to the police officer on

the plaintiff's credi4 and that is the passage

to which, I think, Your Honour Justice Brennan

was referring a little earlier,and His Honour

there said:

Although the facts of this case differ

from those discussed by the High Court in

JOVANOVIC V ROSSI (1985) 58 ALR 519,

nonetheless I consider that the prior

inconsistent statement can only be·"seen

as seriously affecting the plaintiff's

credit.

Your Honours, could I say simply this: that

case demonstrates that the question that there was

nothing, if I might say so, nothing at all to

prevent the judge making the finding which he

did and could I hand Your Honours copies of that

decision if Your Honours do not have it already

and simply refer to - - -

WILSON J:	I think we have JOVAflJVIC.:
MR JACKSON:	I was not certain whether Your Honours did or

not.

WILSON J: Yes, we have it. I do not think we need another

copy.

MR TACKS(n,1'.	r,,...,,1 rl I 8:irnply refer Your Honours to page 525 and, in particular, to about line 5 where the
Court said, referring to the fact that different

BlT3/4/SH	14	27/6/88
Braund(2)

versions have been given at different times:

The unexplained and fundamental conflict

between the respondent's evidence and

his earlier accounts did not preclude

acceptance of what the respondent said in

his evidence.

Now, Your Honours, nothing new about that, of course, but what it simply demonstrates is really that it was a matter for

the primary judge to determine and what the Court

said at page 525, in that case, of course, reading

on, the next sentence was that:

It did however, in the circumstances, at

least raise considerations relating to his

credibility to which the learned trial judge

appears not to have adverted.

Your Honours, here the trial judge did and he

considered the evidence and what weight he would

give to it and what evidence, in the end, he would
accept.

Now, Your Honours, if we are correct in that the approach taken by the Full Court on the two issues

to which we have referred was erroneous, in our

submission, it seems clear enough that those errors

flowed through to the ulti~ate conclusions of the
members of the Full Court, although it is true, also,

to say that the Full Court appears to have said, even

on the version -whatever it quite might have been -

even on the version given by the appellant, the
appellant had to fail and so, Your Honours, I do

need to go further into the case to seek to

demonstrate,as briefly as I may, that on any view

of the matter there was evidence of negligence on

the part of the respondent.

(Continued on page 16 )

BlT3/5/SH	15	27/6/88
Braund.(2)

MR JACKSON (continuing):  Your Honours, they commence at

page 169, the paragraph commencing about the middle

of the page. The first sentence of that depends

on the view taken by Their Honours as to Trinder's

evidence and the first submission which we made.

In our submission that was wrong. Your Honours,

the second sentence which goes to the other half
of the case, even on the respondent's case, the

intrusion into the left-hand lane was only l½ to 2

feet and one would think, in our submission, that

for a vehicle to go over into the left lane would

be an indication that it was not turning right

rather than an indication that it was.

Your Honours, one appreciates that at odd and

particular intersections such as, I think, the middle

of Melbourne, people are obliged to turn left to

make way for trams but, generally speaking, if one

saw a vehicle going straight ahead without any break

in speed and one that had not gone into the right-

hand turning lane, the indication would be it was

going forward. The third matter raised by His Honour

is in the next sentence:

The finding that the appellant did not

gradually reduce speed may have been open

to his Honour, but it is probably irretevant

in view of the fact that Trinder's evidence

was that the vehicle was turning right from

near the centre of the road at a speed not

inconsistent with that which one would expect

of a turning vehicle and that it was at this

time that the collision occurred.

Again, Your Honours, that depends on Trinder's evidence but also to say that:

the finding that the appellant did not

gradually reduce speed may have been open to

his Honour -

really pays not account to the evidence given by
the plaintiff and accepted by His Honour.	The evidence

appearing at page 17, line 8, through to page 18,

line 18, that he described a severe and sudden braking

movement, there being no prior indication that it
might happen -

TOOHEY J:  Mr Jackson, I notice that His Honour did not make

any finding of braking on the part of the present respondent, at least I do not think he did, which

seems a little strange in the circumstances since

the picture which you are portraying at the moment

was of a very sudden movement on the part of the

respondent which one might have thought, A, would

involve heavy braking and, B, might well leave some

evidence of braking on the roadway. Was there any

BlT4/l/ND	16	27/6/88
Braund(2)

objective evidence that brakes had been applied or had not been applied?

MR JACKSON:  Your Honour, the only possible evidence on the

point was that there were two marks seen on the roadway

by a police officer, I think at some later point,

but it was difficult to draw any inference from them.

Their location appears in one of the exhibits which

is at page 138 and at page 163, even the Full Court,

as it were, at the top of the page said:

I think it would be difficult to draw any

inference from -

~nd the, evidence on the point was really very weak.

Your Honour as to the question of braking, I

must say, .Your ,Honour, I will have the particular

passage looked for but in any event His Honour's

acceptance of the evidence of the plaintiff would

seem to involve a finding to that effect.

TOOHEY J: Yes, except that the finding does not seem to be

couched in quite the dramatic terms that the plaintiff

described the incident. Though that may be just

a matter of style as it were but it does not seem

that His Honour found that dramatic reduction in

speed that would be consistent with the plaintiff's

account of what happened.

MR JACKSON:  Your Honour, perhaps I should have referred to

page 147, commencing at line 40, and in particular

about line 44, 45:

I find that the defendant did not gradually

reduce speed as he approached the intersection

but reduced speed suddenly-·

I suppose there are only two possible ways of doing

that, one, by lifting the foot from the accelerator

and the other, is by applying the brake.	Your Honour,
earlier on that page, at about line 10, except for	the degree of conflict with Trinder, where Trinder
was accepted, he said:

I was impressed by the plaintiff as generally

truthful -

and -

as generally a witness of truth when describing

the events immediately prior to the collision.

And, Your Honour. that would seem to take one back to those passages· at pages 17 and 18 which describe

the collision which occurred when the back of

BlT4/2/ND	17	27/6/88
Braund(2)

the utility came up which would be consistent really

only,one would think,with there being heavy braking.

Your Honour, I will see if there is a passage which

submission would be that that acceptance by	says it more specifically but I must say that our the one qualificaiton, would lead inevitably, with
respect, to the proposition that he had accepted
that there was a very sudden braking movement with the crabbing up o.f the back of the utility.

Your Honour, the passages - I am not certain

whether I had given Your Honours the reference to

page 33, line 50, going through to page 34, line 10,

to page 35, lines 9 to 25.	I am sorry, I have given
that reference earlier.	The passage I th~nk•I may

not have given was page 34, line 20~ through to

line 52. Those passages seem to indicate that something

was happening very suddenly.

Your Honours, I was in the course of dealing

with some observations by Mr Justice Dowsett, at

page 169. The next one to which I wish to refer

is that which commences about eight lines from the

bottom of the page:

As to the finding that the behaviour of the

appellant's vehicle was such as reasonably to

lead following traffic to the belief that the

appellant intended to drive through the

intersection, I find that inference difficult

to accept.

Your Honours, I have referred to the evidence on

the point. It seemed to indicate that the vehicle

was just going ahead at the same pace straddling

the lanes and giving no indication of any intention

to turn right when suddenly there was a braking at

a very late point.

Your Honours, from there, one goes then to

page 171 where the Full Court went on to say that,

in any event, the plaintiff could not have succeeded

and several reasons are given for that. At the

paragraph, Your Honours, commencing, "Even on the

respondent's case", at about point 2 on the page,

seems to be, in effect, introductory and then several

reasons are given. The first of them commences in

the last new paragraph on that page, at about point 7:

As to the first -

meaning by that, braking suddenly and without warning,

His Honour says:

it is the duty of a following driver to drive

at such distance and speed that he can bring

BlT4/3/ND	18	27/6/88
Braund(2)

his vehicle to a halt or slow it down should

the vehicle ahead brake suddenly ..... Whilst

that case -

KRUSE V WOODFIELD -

also seems to indicate that in some circumstances

to brake suddenly and without cause may itself

be negligent, that will not always be so.

And, Your Honours, one might accept every word.that

His Honour says but so much depends on the circumstances and if what is done is to slow suddenly and dramatically and without warning the likely

result is that there will be negligence.

Your Honours, the second aspect relied on appears

in the ffrst new paragraph on page 172 where, in

relation to speed, His Honour says:

This aspect of the case must be looked

at also in the light of the third point, namely

driving astride the dividing line.

Your Honours, I shall not read out the paragraph

but if a vehicle is stradling the line and proceeding

at a constant speed it is likely that it will give

rise to the inference to vehicles following that

it is not going to turn right.

Your Honours, as to the next paragraph, which

is the third reason, one would think,relied on by

His Honour, Your Honours will see that he did: not think it was open to -

the primary judge -

to find that no intention was indicated.	The
respondent said that he did not see any
indication, but the evidence is that he also
saw no brake lights although they must have
been in operation.

His Honour says in the sixth line in that paragraph:

Although there may have been insufficient

evidence for his Honour to have come to any

conclusion as to when the indicator was turned

on, I do not consider that there was evidence

sufficient to graund his finding that it had

not been turned on a sufficient distance in

advance of the turn. The only evidence to

ground this inference was that the respondent·

had not seen it, but for the reasons which I

have already canvassed, that was not convincing.

BlT4/4/ND	19	27/6/88
Braund(2)

The reason being, Your Honours, that he had not

seen the brake light go on. Your Honours, in

relation to that, could I simply refer Your Honours

to the passages in the evidence which demonstrate,

in our submission, that the primary judge was

perfectly entitled to find that the brake lights

had not gone on until just at the time when the stopping

commenced - I am sorry, the turning light, I should

say - the turning indicator.

The evidence appears at page 17. line 17, going to about line 25, page 32 line 12, page 34

lines 19 to 30, and page 34 lines 44 to 54.

Your Honours, that was the evidence on the point

and, in our submission, the finding which the primary

judge made in relation to it, which is at page 148,

was correct. His Honur said, about line 2:

I find that he suddenly and without any

adequate warning or indication of his intention

so to do turned right toward Reed Road. In

relation to this latter finding, I accept the

evidence of Constable Pearson that when he

arrived at the scene the right-hand indicator

was flashing. I was asked by counsel for the

plaintiff ....

that is, for our side -

to find that this was turned on by the defendant

after the collision had occurred. I am not

prepared to make that finding; I regard it as
more probable than not that the defendant
turned on the right-hand indicator either
immediately before or simultaneously with the
commencement of his right-hand turn, but in

any event at a time when the plaintiff was confronted by an emergency and intent upon

evasive action.

Your Honours, that seems a finding which is really

quite open on the evidence and it seems one that

more represents the evidence to which I have referred

than that to which Mr Justice Dowsett referred in

the Full Court. At page 172 he·did:

not consider that there was evidence sufficient

to ground his findin~ that .it had not been
turned on a sufficient distance in advance of

the turn.

That was the plaintiff's evidence.	Why was not the
primary judge entitled to believe it?

. (.Co"' t 1· ,·:11 , .• -:1 -. r. r- "'" 6 --r"" , ? 1 ) ·

i..:.- 1::. ......... U' ..•• .t-'- ~:... ~ .• ,

BlT4/5/ND	20	27/6/88
Braund(2)

MR JACKSON (continuing):  Your Honours, the penultimate matter

in this regard to which I wish to refer appears

at page 173 in the paragraph commencing about

point 4 where His Honour said:

Further, I do not think that it was fairly

open on the evidence to find that the appellant's

vehicle was straddling the dividing line.

He then refers to the Trinder evidence, if I can

call it, to which I have earlier referred but

Your Honours will see that that is in the course

of a discussion of whether the plaintiff's case
could succeed on the plaintiff's evidence but then

the Trinder evidence is added to it or the court's

view of the Trinder evidence is added to it and

that really was a departure from the point. But,

Your Honours, His Honour then goes on, about half-way

through that paragraph, to say:

In any event, I do not think that it would

really matter. If the respondent was aware

that the appellant's vehicle was turning right,

or ought to have been so aware, it would not

matter that he was turning from a position

which slightly impinged -

a foot and a half -

into the left-hand lane. The movement of

the appellant's vehicle was away from the
path of travel of the respondent and not into

it. In truth, it was the sudden slowing

which was complained of and there was not

sufficient evidence of the extent of the slowing

to justify an inference of negligence against

the appellant.

I have referred Your Honours to the evidence about

the extent of the slowing which showed that it

was, not to put it too dramatically, a dramatic

slowing. Your Honours, so that in our submission

it was not open to the Full Court, with respect,

to find that on the appellant's case there was

no evidence of negligence; the evidence was strong

on the question of negligence. Now, Your Honours,

could I turn from that to the question of the course

which the Full Court should have taken; the second

issue which we raised.

Your Honours, this was a case where the

judge - - -

DEANE J: Mr Jackson, before you go away from the evidence,

the real problem i~, is it not, what your client

said about the other car in that he said he saw it,

he identified it as a Holden and he even -

BlTS/1/AC	21	27/6/88
Braund(2)

MR JACKSON:  The car coming south, Your Honour?

DEANE J: Yes, and he even said he saw its turning light on

and it turned into the other street. It is somewhat

difficult to answer, is it not, the Full Court's

reliance on his reference to the other car, at

least as something which does put a big question mark
about whether his evidence is reconstruction or

genuine recollection once you accept that that

other car was never there?

MR JACKSON: Well, Your Honour, it is no doubt that it may

put a question mark but it was a question which

was considered by the primary judge. The primary

judge found against him on that point. Having

found against him on that point he found for him

on others and - - -

DEANE J:	He did not, really though, go into the detail of the fact that not only was he mistaken about a car being there but he could give evidence to it& make
and it having its turning light on and it having
turned into the other street.

MR JACKSON: Well, Your Honour, I really, I suppose, can

only answer that by saying that - and I really

do not mean to be, in the slightest degree, offensive

in saying this - no doubt His Honour had evidence

before him on a number of aspects of the matter.

Now, Your Honour, he was entitled, of course, to select - and I do not mean capriciously - but he

was entitled to select those parts of the evidence

of any witness which he accepted or did not accept.

Now, the evidence which the appellant gave was

evidence that he had seen another vehicle turning

left; he thought it was a Holden and he could see

its lights on. Now, His Honour thought, without

thinking the appellant to be a man who was

manufacturing the evidence, that his recollect ion

was, on that point, not to be preferred to that

of Trinder but the assessment of him was really

something for him and His Honour went on on a couple

of occasions to say that he thought that he was

an honest witness who was giving his best evidence

and, Your Honour, it was in a context, if I may

say this, where he did not believe the witnesses called on the other side because he thought they were not telling the truth; he thought the plaintiff

was and in selecting what parts he accepted and

those which he did not the only exception was that

car and I do not know that I can say any more about

it but if I could summarize it by saying: to weigh

the effect upon his evidence of the particular

matters Your Honour has mentioned, whether one

did it in broa<.i or by d.i.v.i.J.i.ug ~L ..:;p i.~·\.t8 location

of car, type of car, turning light on, was something

which was for the trial judge and it is a function

which he peformed.

BlTS/2/AC	22	27/6/88
Braund(2)
WILSON J:	I think you	have already indicated - what

significance	did the presence or absence of that
vehicle have	to the occurrence? The appellant
was the only	one who said it was there, I take
it?

MR JACKSON:  Yes, Your Honour. Now, Your Honour, there is

a passage to which I should, I think, have referred

before and I do not think I did, specifically,

on this point and that is at the top of page 18

where he was asked:

When this occurred -

that is the braking

did you see any reason for the vehicle to brake in that manner? Was there anything

on the road in front of the vehicle?-- No. And then the next question and answer are germane

to the same matter. There was nothing suggested

Your Honours will find, in our submission at least,

no part of the evidence which suggested or contained

a suggestion from the appellant that the presence

of that other vehicle played a part leading to

the collision. Where that derives from is first

from page 141 where, at about line 40, the primary

judge says:

it slowed suddenly just before the intersection

itself, apparently on account of a vehicle

which had proceeded south -

and so on. Now, that seems to be His Honour's work,

if I can put it that way, to say that but it then

grows,Your Honour~ when it gets to the Full Court

and we would hope that it has ceased to grow.

DEANE J: Except, I do not want to take time, but I have

myself read the evidence on page 18 culminating

close" as intended to explain the sudden braking. in the question which elicited the answer, "Very

MR JACKSON:  Yes, Your Honour. There was never any suggestion

of any possibility of collision as I apprehend
the evidence but it seemed to be describing the
proximity of the other vehicle to the intersection

rather than to the car as such. Your Honours,

in relation to the course which the Full Court

should have taken, this is a case, of course, where
the judge had accepted the plaintiff's version

of events and rejected the defendant's version.

If ~is Honour had been wrong or if he had been

wrong in his assessment of the credibility of the
plaintiff by reason of either misunderstanding

Trinder's evidence or not giving proper weight

BlTS/3/AC	23	27/6/88
Braund(2)

to the evidence of conversations with the police

officer, it did not follow that the plaintiff should

be disbelieved. What should follow in such a

case is that there be a new trial unless it be

that on no basis, on the plaintiff's evidence,

could an inference of negligence be drawn. And,

Your Honours, for the submissions which we have

made already the latter view could not be taken.

The next matter we would put is this, Your Honours:

if it were that the Full Court was correct in itself

proceeding to determine the matter the case, on

that assumption, was clearly a case for an apportionment.

Your Honours, I shall not go over the evidence

but we would simply submit that the whole situation

was one created by the defendant. The plaintiff,

on this assumption, was travelling too close but

the principal cause was the sudden and belated

turn and, Your Honours, might I add one matter

and that is that I noticed when Your Honours were

reading our outline of submissions that in paragraph

C.9 at the end of the third page it said that if

there was evidence of negligence on the part of

the respondent an apportionment was necessary -

Your Honours, that is premised, of course, on the

assumption that the Full Court was right in allowing
the appeal - and Your Honours on the question of
apportionment we would simply submit that the major

responsibility should be borne by the respondent.

Your Honours, those are our submissions.

WILSON J:  Thank you, Mr Jackson. Yes, Mr Hanson.

MR HANSON:	Your Honours, could I hand up a synopsis of our submissions?
WILSON J:	Yes, thank you.
MR HANSON:	Your Honours, our submissions basically are that

the matters that the Full Court took account of

matters and as Your Honour Justice Deane has already	in setting aside the judgment where, indeed, weighty
observed it is very difficult to see how any reliability could be placed upon the evidence of the plaintiff after it is found as a fact that
he describes a vehicle in great detail which did
not exist. He gave its year; he thought it was
a 1966; its colour and its make and it had its
left blinker on and it was turning into the side
street. Now, once it is found that that just was
not there it really is difficult to say that he should be given any reliability whatever. Whether
that evidence of his was a deliberate fabrication
or a ~~ntal aberrafion:d~is ridt matter. It is
not a mistake that he made concerning speed or
distance or position of vehicles or anything like

BlTS/4/AC	27/6/88
Braund(2)	24

that, it is something that, in our submission,

destroys his credibility completely. The second

matter that we rely upon and relied upon by the

Full Court is, of course, the two statements that

he made to the police and, again, in our submission,

these are weighty matters. His Honour gave reasons

for disregarding those statements and with respect

to that we have two submissions, firstly, the

reasons themselves are not convincing and secondly,

that there was, if one might borrow a phrase from

another branch of the law, corroboration of the

statements made by the plaintiff in this regard.

If one is querying the reliability of a statement,

if it is put in question because of his medical

condition or for whatever cause, one looks for

some independent corroboration of the statement

made and, in our submission, it is here. The

statement that he was in the right-hand lane

corresponds with the evidence of the independent

witness Trinder. I appreciate that His Honour

puts aside that aspect of Trinder's evidence but

the fact remains that Trinder said it and said

it very clearly and very specifically. Now, it

would be a curious coincidence, in our submission,
if the plaintiff, through some mistake, placed
himself in the right-hand lane when interviewed

by the police and Trinder, through some mistake, asserts positively that the vehicle was close to the centre line and in the right-hand lane.

(Continued on page 26

25

BlTS/5/AC	27/6/88
Braund(2)

WILSON J:  But already happening, Mr Hanson.

MR HANSON:  In the process of turning, Your Honour, very early

in the turn.

WILSON J:  Why could it not have come to that position from a

position where it had been straddling the broken line?

MR HANSON:  It may have but there is a finding that the

collision occurred just as the vehicle commenced to

turn and Trinder says that he saw this object as if it

fell from the truck. He thought it was a garbage bag

falling. So really, that all must have been at the

spot where Trinder says he saw the vehicle.

DEANE J:	But if you go to page 138, for whatever reliance can be put on that - that is the constable's plan - there you have the vehicle which would correspond to what
Mr Trinder said he could see from a quarter of a mile away. If you take that back a fifth of a second in a
straight line, if the plaintiff were travelling on the
left side of the dotted line he would have hit the
left-hand corner and he would have then been seen by
Mr Trinder falling as the vehicle continued.
MR HANSON:	It all depends on speed and distance, of course,

Your Honour.

DEANE J:	Yes.
MR HANSON:	It really is a matter of impression.
DEANE J:	But when you look at exhibit 18, really it is

difficult to criticize His Honour's disregard of what

Mr Trinder said in terms of - - -

MR HANSON:	Exhibit 20 - the photo, you mean?
DEANE J:	- - - exhibit 18, that photo.
MR HANSON:	Your Honour, with regard to the photos, it is

always dangerous to take too much from the photographs,

in our submission, of course.

DEANE J:  Except Mr Trinder's comment when he saw it was that

he was further away.

MR HANSON:  Well, true, but the view that one gets in a

photograph, of course, is notoriously different from
standing at the very same spot in person and he claims
to have seen it very clearly and it was very vivid in

his mind. You have already had this passage, I think,

read to you - at page 75, at line 55, he says it was

how vivid it wLe in his mind and_0 l".O°\'i very cJ.ose to the	turning,and at page 56, lines 15 to 20,he describes
centre.

26

B1T6/l/HS	27/6/88
Braund(2)
WILSON J:	Page 56, or page 76?

HR HANSON:  Page 76, sorry, Your Honour. Mr Jackson has

already shown you this passage. Page 76, about 15

through to 20, perhaps starting at the top of that

page, and on page 79 he was cross-examined about the

topic and that is dealt with, I suppose, for the whole

of page 79. Now, it is said for the appellant that

the Full Court itself overlooked the passage on

page 79 at line 22. Your Honours, might we point out

that this very page waa. ref erred to by J:,fr Justice Dowsett in his

judgrrent at page 162 of this record. Although in that passage,

at the top of page 162 you will see that he refers to

page 73, which is page 79 of the appeal record.

WILSON J:  How would he know whether it was early in the turning

process? He first sees a vehicle that is turning.

MR HANSON:	Yes.
WILSON J:	How does he know how long it has been turning?
MR HANSON:	Well, I suppose he meant by that, Your Honour,

that because of the angle it must - assuming it is
turning right - it must have been very early in the

turning manoeuvre.

WILSON J: 

And assuming it had been travelling parallel to the

centre line and close to it, which is an assumption.
All I am intervening - I think it is very difficult
to extract a great deal of definition out of Mr Trinder's
confident assertion.

MR HANSON: 

Your Honour, perhaps we cannot take it any further

than to say that there was a consistency about the the police, the marks on the roadway, and the only
defendant's version. The consistency consists of

evidence that it all happened elsewhere comes from

the plaintiff himself. There is no other evidence.

Your Honours, the other statement to the police that

was, in our submission, a weighty matter, was that
the vehicle in front of him stopped.	Now, that

assertion appears twice in the statement of claim. It· appears in paragraph 3 in the narrative of the

accident at page 3 of the record, and it appears in

paragraph 4 among the particulars of negligence.

In paragraph 3 it is described as "having come

to a halt".	In the particulars of negligence,
"stopped his vehicle suddenly".	In that regard,

could we point out that when the trial began his
counsel sought leave to amend the statement of claim

in a number of particulars, and you will see that at

page 8 at the. very heg:i.nning of the trial, and what

was added appears on the statement of claim, at

pages 4 and 5 of this record,underlined. So as far as

BlT6/2/HS	27	27/6/88
Braund(2)

the particulars of negligence go there was one

amendment made to paragraph (b). In other words,

this assertion of having come to a halt was not

resiled from, was not abandoned, and his counsel -

at the foot of page 59 his counsel

pursued the topic in cross-examining the defendant

driver. So it was never abandoned. It was always

alive.	It has been said on his behalf that he does
not know what is in the statement of claim.	If he
had - I will leave that, Your Honours.	I will come
back to it.

TOOHEY J:  Would you accept, Mr Hanson, that the plaintiff was

not cross-examined in regard to either of those

allegations in the statement of claim?

MR HANSON:  Yes, I accept that. Yes, that is true, but I

rely on the fact that his counsel seems to have taken

up the topic there and - - -

TOOHEY J:	How was the case opened?
MR HANSON:	Opened?
TOOHEY J:	Yes, in relation to that aspect of it?
WILSON J:	The opening will not be recorded._.
TOOHEY J:	No.  I am not expecting you to find it in the appeal

book. I am just wondering whether counsel was present

at the time and can tell us how the case was opened.

MR HANSON:  Neither Mr Myers nor I were there. I am sorry,

we cannot help Your Honour, and it does not appear

from the transcript that there was any opening.

This is a legitimate criticism, in our submission, to

notice what is said on his behalf in the pleadings.

Your Honours, the question of the reliability of those

statements was canvassed. Having regard to his

condition in hospital could we draw your attention

to these matters: at page 81 Constable Pearson

at the scene on the occasion of the accident, at the

foot of the page, had a conversation with him and was

able to get his personal particulars from him, his name

and address, so it does not appear that he was

unconscious, totally incapable at the scene. At

page 31, at line 50, he was asked about the interview

with Constable Pearson, and at page 55 he says:

I told him to the best of my knowledge

at the time.

At page 32, at lines 15 to 20, he was asked:

Do you accept or disagree or whatevc:~ th.Pt

Constable Pearson said to you, "I have

checked the lights and the one that is not

B1T6/3/HS	28	27/6/88
Braund(2)

damaged still works."?-- I ask him. That

is the only thing I can really remember in

hospital. I asked did he check the lights

on the Falcon when he came to see me in

hospital.

So there is a recollection of part of the conversation in the hospital, and on page 33, at the top of the

page he recalls saying "that little bit". At page 83

Constable Pearson gave evidence at lines 10 to 20

that before he went to the hospital he made inquiries
to see whether the plaintiff was in a fit condition
to talk, and it appears from pages 91 and 118 that

the plaintiff was released from hospital eight days

after that interview and after having spent a short

period on crutches. Those facts appear in the middle

of page 91 and in the middle of page 118.

Your Honours, we have the two submissions about

the statements. There really was inadequate

reason for brushing them aside and inadequate reason

was given, and His Honour really ought to have embarked
upon a little more discussion of these matters if he

was going to disregard these statements, and the

other submission - - -

BRENNAN J:  Why is that, Mr Hanson? Why do you say he should

engage in more discussion?

'MR HANSON:  Because you have the statement of Trinder that

we claim corresponds with it - for whatever weight it

is, he says the same thing - and you have the statement

of claim pleading the same version that the plaintiff

gave to the police.

BRENNAN J:  But the plaintiff had given his evidence. He had

said there had been severe braking and Trinder was

coming from the north 400 yards away and the judge

has to make up his mind. Does he have to do anything

more than just say, "This is what I think happened"?

'MR HANSON:	It depends on the evidence, of course, Your Honour, and if there are these matters that go to supporting
the statements made to the police really they should
come into the debate, in our submission.
BRENNAN J:	I can understand that there might be a desire to

have a full disquisition on the subject, but in terms

of the judge's power to make a finding which is beyond
challenge, I do not know that there is any requirement

to say more than what he finds.

'MR HANSON:  Our submission, of course, is that he has misunderstood or

disregarded these facts for inadequate reason. He

has twt notice~, perhaps, the assertion in the statement

of claim that we rely upon or perhaps it was not drawn to

his attention. If it had been - perhaps it should have

B1T6/4/HS	29	27/6/88
Braund(2)

been - then he may have taken another view of the

statements made in the hospital to the police, and

that would affect the other statement that the

plaintiff made quite plainly that he was in the

right-hand lane next to the centre line, quite a

plain and distinct statement on his part.

BRENNAN J: Quite a plain and distinct finding by the trial judge.

MR HANSON: True, Your Honour. Those are out submissions about

those -

(Continued on page 31)

B1T6/5/HS	30	27/6/88
Braund(2)

DEANE J:  Mr Hanson, where did Mr Trinder say that he did

not see another car, or did he?

MR HANSON:  I do not know offhand, Your Honour.

DEANE J: His Honour says that Mr Trinder did not see another

car.

MR HANSON:	Yes.
DEANE J:	I was just wondering where anybody even asked him about it.
MR HANSON:	I cannot point specifically to the spot where

he says that. Could I come back to that, Your Honour?

Your Honours, on this topic of the other car,

Mr Justice Dowsett's reasoning was criticized when he says at 161 that the presence of the other motor

vehicle seemed to be:

-

the whole rationale for the conduct alleged

against the defendant by the respondent -

and that disappeared once you find there was no
such vehicle. That was found by His Honour to be

the effect of the case for the plaintiff, althoush the plaintiff did not expressly say this. At 141,

at lines 10 to 45, His Honour sets out what he sees

to be the plaintiff's version of the collision,

and towards the end of that passage, at about line 40,

he says:

apparently on account of a vehicle which had

proceeded south -

and the topic was taken up by his counsel in

cross-examination at page 61, at line 49,	the
bottom of that page.	Mr Justice Dowsett's finding

was criticized because the plaintiff himself had

not said this. Well, his counsel certainly said it

and the learned trial judge understood that to be

his case as appears from 141.

To answer Your Honour Justice Deane, apparently

the only passage we can see is at 75, line 35.	He
goes straight to speaking of the defendant's vehicle.

GAUDRON J: That does not amount to a denial that there was

any other southbound vehicle, does it?

MR HANSON:  No, it does not, Your Honour. That is the

closest we can find at the moment.

~ .,_.~]_

BRENNAN J:  Mr Hanson, is there any finding that was made

against you by the trial judge which, in your

submission,is not supported by any evidence?

BIT7/l/JM	31	27/6/88
Braund(2)
MR HANSON:	No, I do not think so, Your Honour.	As we read it,

all of the findings against us are based upon the

plaintiff's version.

BRENNAN J: Is there any inference that was drawn that is not

open on the primary findings that His Honour made?

MR HANSON:  Not open, but we would say unreasonably drawn, for

the reasons Mr Justice Dowsett gave in the Full Court.

But I would not say "not open", except in this regard,

if we go back to where we started: the plaintiff

was an unreliable witness. If we cannot succeed on

that the answer to Your Honour's question is "no".

BRENNAN J:  And if you do not succeed on that, what ought to

have been the result of your appeal?

MR HANSON:  There would have to be an apportionment. In our

submission, the plaintiff cannot possibly escape som: liability

for the collision.; cannot possibly. He has run into a

vehicle in front of him on the open highway, when they are both moving and when there are two lanes

available. He has not seen the brake lights come

on, on his own admission; he is following too

closely; travelling too fast; failing to keep left;

and not keeping a proper lookout. I mean, at first

blush, the case must be wrong, that a man who runs

into the vehicle in front of him on the open highway

succeeds 100 per cent, when there are two lanes and

the vehicles are moving.

It is not the sort of case where he ran into a

vehicle that was turning right, because he ran into the right-hand side of the vehicle, or ran into it as he

was attempting to overtake. The vehicle was turning

away from the plaintiff. So, he cannot escape a

finding of negligence against him, in our submission.

Your Honour also asked Mr Jackson did

Mr Justice Dowsett treat the admissions to the police

as evidence of the truth of the facts.	He seems to
have done so at 173, in the middle of the page, in a	passage that has already been read to you in another
context. We do seek to support the decision of the Full Court that even accepting the findings made as
contended for by the plaintiff concerning the conduct of the defendant, that does notamount to
negligence. The findings in the plaintiff's favour
are at page 147 connnencing at line 42. These are the findings of negligence.

In our submission, the blinker was irrelevant

on any account because the defendant was turning

away from the pJ8intjff. The plaintiff had not

seen the brake lights, so he would not have seen

the blinker, if the blinker had been on, and the

case against the defendant comes down to reducing

speed suddenly on the open highway and without an

adequate warning. In our submission, those facts

will not support a finding of negligence.

BIT7/2/JM

Braund(2) 32 27/6/88

There is a little authority on the duty of

one driver to the following traffic. Could we

refer Your Honours to the case of

RAINS V FROST ENTERPRISES PTY LTD, (1975) Qd R 287 at 294?

Mr Justice Dunne, at letter B through to letter E

discusses the relationship between a leading car and

a following car.

BRENNAN J: That is a turning case, is it?

MR HANSON:  No, Your Honour, I do not think so. I think

the car pulled out from the side of the road - a truck,

pulled out from the shoulder of the road.

BRENNAN J: 

I mean, the gravamen of this case is that here

are two cars going along the highway and one
suddenly stops in front of the other - two vehicles.

MR HANSON: Well, suddenly brakes, Your Honour.

BRENNAN J: Suddenly b'rakes, yes.

MR HANSON: Well, why is that negligence? I mean, would

negligence have to depend - - -

BRENNAN J: Because the person behind you is foreseeably

likely to run into you.

MR HANSON:  Well, would the driver be negligent if he

stopped for some reason within his cabin, that a

child had distracted him, or a bee flew

in the window, or something like that? Does that

detract from what otherwise would have been

negligent conduct? Your Honour, really, the following

traffic, in our submission, must be ready to stop

if, for whatever reason, the vehicle in front stops.

If the man in front of you finds, for some reason

unknown and for which the driver behind can never

be aware, that he must stop, the following driver

must be prepared to cater for that. Surely he cannot

be permitted to carry on and be ready to cater for

only those emergencies that he can see beyond the

driver in front of you. His duty must be higher

than that. He must be prepared to stop if the

car in front of him stops for some reason that he

cannot see. In our submission, that is why there is

practically no duty to a following car.

DEANE J: But that might be fine for contributory negligence,

but it really is not right for negligence, is it?

I mean, what if somebody is driving along and

pulling up just for the heck of it to see what

the car behind does, you surely would not suggest

that that was not negligen:.? If c. ;-,\:' ~ d ruli.s c11t

in front of him, it, obviously, is not negligent.

MR HANSON:  Well then, Your Honour, that means the conduct

of the· driver is to be judged according to the

BIT7/3/JM	33	27/6/88
Braund(2)

reason why he pulled up: whether he pulled up deliberately

to annoy the car behind him; or whether he pulled

up to avoid a situation that he was presented with.

DEANE J:  Or whether he knew a mile back that he was going

to pull up to turn right.

MR HANSON:  There does not seem to be much authority on it.

I am afraid this is all we can find:	the duty of
one car to the following car.

Your Honours, could we point out that this

right-tum lane has an arrow on it as a right-turn

lane and there was evidence at the trial that there

had been no significant changes to the markings.

That is at page 16 and page 27. Yet the plaintiff

himself was in the lane which is marked as a right-turn

lane, whereas there was a left through lane, but he

did not like it because it was a bit too rough on

his motor cycle. Well, he can hardly complain if

the vehicle in front of him does what the road

markings invite traffic to do. I do not think I

can take it any further on that aspect, Your Honours.

On the question of negligence on the part of

the plaintiff - sorry, before I leave the defendant,

could I say that we rely upon Mr Justice

criticism of the case of negligence which appears

at page 157D at about point 6 of the page. His Honour

does not see any negligence in the plaintiff's case.

We adopt that reasoning.

BRENNAN J:  If there is one thing that would seem to be tolerably

clear it is that it was the slowing down of the defendants vehicle which caused the relevant collision.

(Continued on page 35)

BIT7/4/JM 27/6/88

Braund(2)

MR HANSON: Well, we would say because the plaintiff was not

ready for it.

BRENNAN J: That may be so but there is not doubt that in

terms of causation, if the vehicle in front had not

slowed down, there would not have been a collision.

MR HANSON:  Yes.

BRENNAN J: Well, that is a difficult passage to rely on then,

is it not?

MR HANSON:  It comes back to the duty, really, of a driver

to a following driver.

BRENNAN J: Yes.

MR HANSON:  And I have already submitted to Your Honours orally

what we rely upon and, against the plaintiff, if it

comes to an apportionment, that is set out in our written submissions in paragraph 3(b). Those are

our submissions, Your Honours.

WILSON J:  Mr Hanson, just before you sit down, if the Court

were to come to the conclusion that the decision of
the Full Court ought to be set aside or, at least, the
question of contributory negligence should be
agitated in one form or another, what vehicle
would you suggest would be appropriate to that.

You would not ask this Court to make a decision

on that, would you?

MR HANSON:	Well, we would not mind · if Your Honours did bring the matter to finality.
WILSON J:	It would seem that there would need to be an order

for a new trial, would there not?

MR HANSON: Well, perhaps so. It is a shame, though. We do

not mind if this Court does the apportionment to

finalize the matter.

WILSON J: Yes.

MR HANSON:  As to Your Honour's proposal, yes. The only

alternative, I suppose, is to have another trial

rather than send it back to the Full Court.

GAUDRON J:  Mr Hanson, if the Court were of the view that

there should be some apportionment, surely the

parties could work it out, could they not?

MR HANSON:  One would hope so, Your Honour. Quite possibly.

GAUDRON J: Yes. So, rather than this Court do it, it might

be appropriate to allow the parties some time before

any,,final order was made.

BlT8/l/SH	35	27/6/88
Braund(2)

MR HANSON: Well, the prospects of a retrial might persuade

them that they should try a little harder.

WILSON J: Well, thank you, Mr Hanson. Yes, Mr Jackson.

MR JACKSON:  Your Honours, may I say two things by way of

reply. The first relates to the question of the

obligations of the driver of one vehicle to to
driver of a following vehicle not, as our learned

friend has put it shortly, car to car, but, really,

motorist to motorist as it were, to other persons

who may be affected by it. No doubt the particular

content of what has to be done in particular cases -

WILSON J:	I am sorry.
MR JACKSON:	Your Honours, what I was simply submitting was

this: when one talks about the position as between

the driver of one vehicle and the driver of another
vehicle following behind it, no doubt what is required
to be done depends very much on the circumstances and,

in some instances, the driver of the leading vehicle

may have to look after himself, as it were, but this

is not quite a case where that is the situation

because Your Honours will see at the bottom of page

147 and at the top of page 148, the primary judge
made a specific finding about the quality of the
driving ot_~he respondent and that was a finding:

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.

And he then proceeded from there. So, it was a case

in which there was a finding that he acted in that

way.

Your Honours, the second matter is this: the

evidence concerning the presence of the car in

Trinder's evidence is the passage to which my

learned friend referred. It is true that it does

not go directly to the point of the absence of

another car, although that appears to have been

assumed as its meaning. Your Honours, the position

is that the question of the relevance of the presence

or absence of the car was, as our learned friend's

§~~d, no doubt a weighty matter but the weight

was for the trial judge.

WILSON J:  The weight was wha,t?

MR JACKSON: For the trial judge, Your Honour.

WILSON J: For the trial judge, yes.

BlT8/2/SH	36	27/6/88
Braund(2)

MR JACKSON:  Your Honours, those are our submissions.

WILSON J: Thank you, Mr Jackson. The Court will consider

the matter.

AT 4.07 PM THE MATTER WAS ADJOURNED SINE DIE

BlT8/3/SH

37   27/6/88

Braund(2)