Buscombe v Geva
[2001] WASCA 278
•7 SEPTEMBER 2001
BUSCOMBE -v- GEVA [2001] WASCA 278
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 278 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:181/2000 | 21 AUGUST 2001 | |
| Coram: | WALLWORK J MILLER J BURCHETT AUJ | 7/09/01 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MARK WILLIAM BUSCOMBE SIGAL GEVA |
Catchwords: | Negligence Appeal Motor vehicle accident Respondent riding a motor cycle Appellant's motor vehicle passed, cut in and braked suddenly Appellant about to turn right off road Two vehicles approaching from other direction Respondent unable to avoid a collision Appellant held responsible Judge believed respondent's evidence On appeal |
Legislation: | Nil |
Case References: | Devries v Australian National Railways Commission (1993) 177 CLR 274 State Rail Authority of New South Wales v Earth Line Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 Abalos v Australian Postal Commission (1991) 171 CLR 167 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 Rosenberg v Percival (2001) 75 ALJR 734 S S Hontestroom v S S Sagaporack [1927] AC 37 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : BUSCOMBE -v- GEVA [2001] WASCA 278 CORAM : WALLWORK J
- MILLER J
BURCHETT AUJ
- Appellant (Defendant)
AND
SIGAL GEVA
Respondent (Plaintiff)
Catchwords:
Negligence - Appeal - Motor vehicle accident - Respondent riding a motor cycle - Appellant's motor vehicle passed, cut in and braked suddenly - Appellant about to turn right off road - Two vehicles approaching from other direction - Respondent unable to avoid a collision - Appellant held responsible - Judge believed respondent's evidence - On appeal
Legislation:
Nil
(Page 2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant (Defendant) : Mr E J Myers
Respondent (Plaintiff) : Mr B G Bradley
Solicitors:
Appellant (Defendant) : E J Myers
Respondent (Plaintiff) : Bradley & Bayly
Case(s) referred to in judgment(s):
Devries v Australian National Railways Commission (1993) 177 CLR 274
State Rail Authority of New South Wales v Earth Line Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
Case(s) also cited:
Abalos v Australian Postal Commission (1991) 171 CLR 167
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842
Rosenberg v Percival (2001) 75 ALJR 734
S S Hontestroom v S S Sagaporack [1927] AC 37
(Page 3)
1 WALLWORK J: The appellant appeals against a judgment of a Judge in the District Court pursuant to which he was found liable in damages to the respondent in respect of injuries which the respondent received in a motor vehicle accident on 6 January 1997.
2 The respondent, who was then aged a little over 24 years, was riding a motor cycle from Albany towards Esperance, along the Hassell Highway. She was touring Australia and had travelled many thousands of kilometres around Australia without incident. She was an experienced motor cycle rider, having owned motor cycles in Israel for a number of years prior to leaving that country to tour New Zealand and Australia.
3 The respondent had said in evidence that as she was riding her motor cycle along the road, the appellant had driven a motor vehicle past her and then pulled in front of her, prior to his making a right hand turn off the highway. The respondent told what happened then in the following passage:
"Now you said that the car overtook you and came back to your lane?---Yes.
When it did that how far ahead of you was it?---When it came back to my lane?
When it came back to your lane how far ahead of you was the car?---Just after he overtook me and came back to the lane and braked?
Yes. How far was he ahead of your motor cycle when he came back to the left lane?---A few metres, a few metres.
When was it that you noticed the braking?---Just immediately after he completed the overtaking.
How quickly did the car brake?---Very quickly. That is why I couldn't avoid from hitting it.
Immediately after the collision you have said that you slid along the gravel?---Yes."
4 In the course of his reasons for judgment, the learned Judge said:
"In their closing submissions each of counsel for the plaintiff and the defendant agreed that the outcome of this case depended almost entirely on my view of the credibility of the witnesses.
(Page 4)
- They agreed that there was little in the way of extrinsic evidence to assist the resolution of the issues. I have little difficulty in accepting that on the balance of probabilities the plaintiff's version of events is to be preferred to that of the defendant. My reasons for coming to this conclusion are firstly that I found the plaintiff to be an open, honest and frank witness. She gave her evidence unhesitatingly in a manner which impressed me with its clarity and honesty. I formed a less favourable opinion of the defendant as a witness. He seemed to me to be defensive and a little prevaricating."
5 It can be seen from the above that, generally speaking, the learned Judge accepted that the accident had occurred in the way in which the respondent had described it.
6 In the course of her evidence, the respondent had said that the motor cycle she was riding was a Yamaha 350CC road and trail motor cycle. Prior to the accident, she had been travelling at between 70 and 80 kilometres an hour. The cycle had been laden with all her travelling gear. She had been travelling in the centre of the left hand lane for about 40 or 50 kilometres without incident, when she had noticed the appellant's car in her rear view mirror. The respondent told the learned Judge that she had seen the appellant's vehicle begin to overtake her. She did not think its speed was excessive. When the vehicle had passed her, it had commenced to stop. She had seen the red tail lights come on almost immediately. Although she had braked and veered her motor cycle to the left, she found that she could not avoid a collision. Her right leg had been crushed between her motor cycle and the car.
7 The respondent told the Judge that after the accident she had asked the appellant what had happened. He had replied that he had wanted to take a turn-off to the right, but two cars had come from the opposite direction. He had had to come back into the left lane and brake.
8 In her evidence, the respondent had denied that the appellant's vehicle had been stopped for 15 seconds before she had collided with it. The learned Judge said he had been unable to see any inconsistency between what the respondent had told police officers after the accident when she had been awakened in the hospital from a general anaesthetic and what she had said in her evidence.
9 One of the witnesses had told the Judge that there were no signs warning of the turn-off as the appellant had approached it, except at the
(Page 5)
- intersection itself. He said that in the vicinity of the straight section of the highway leading to the turn-off, it was difficult to pass because there were too many bends. He said that the fact that there was not proper signage made the turn-off to Cheyne Beach very easy to miss. He had missed it himself, although he was a regular traveller over that section of the road.
10 The appellant had said in evidence that he had only been to Cheyne Beach once, but he had calculated the distance and set his odometer for the journey so that he knew when the turn-off would be approaching. He said the respondent's motor cycle had been "going so slow - about 40 kilometres per hour". He said he had not cut in on the respondent's motor cycle. He had come to a standstill prior to turning off to the right. He had been stationary, waiting for another car coming the other way to pass him, when he had been struck from behind by the respondent. He said that he had told the respondent that he had seen two cars coming and that he had had to stop.
11 The learned Judge commented that, before the appellant had been cross-examined, he had thought that the appellant had given his evidence in a fairly straightforward, uncomplicated sort of fashion. However, he had observed a marked change during the course of his cross-examination. When he had been asked about the circumstances which had led him to set his odometer, the Judge thought the appellant had been a defensive witness who had occasionally avoided the question he was being asked.
12 The Judge said he thought it was quite improbable that the appellant had been stationary in his vehicle for 15 to 20 seconds before the respondent had collided with it. He accepted that the respondent had been travelling at between 70 and 80 kilometres an hour and rejected the appellant's estimate of her speed at 40 kilometres an hour. He also rejected the suggestion that the respondent had been riding with her head down and not paying attention to the road ahead.
13 His Honour said that assuming the respondent had been travelling at 70 kilometres an hour or slightly over, she would have travelled roughly 20 metres per second, and in 20 seconds would have covered a distance of about 400 metres. In that time, in that way, she would have travelled the entire straight distance of the roadway from the crest of the hill prior to the accident to the turn-off to Cheyne Beach. Clearly that did not happen.
14 His Honour was satisfied that the appellant's overtaking manoeuvre had taken 100 metres or more. He thought it was more probable than not that the appellant had jammed on his brakes for fear of missing the turn,
(Page 6)
- giving the respondent no room to escape the collision. The appellant had told the respondent that there had been two cars coming towards him which had obliged him to stop. His Honour found that the circumstances were more consistent with the respondent's version of events than the appellant's. The learned Judge found for the respondent.
15 The appellant appeals on a number of grounds, the first being that the learned Judge erred in failing to have sufficient regard to evidence independent of the credibility of witnesses, which evidence supported the conclusion that the respondent had caused or contributed to the collision.
16 In reliance on this ground, the appellant argues in essence that after the appellant had overtaken the respondent on the straight stretch of road prior to the place of the collision, both vehicles would have travelled quite a long distance to the point of collision and that the respondent would have had ample time to stop from the time she should have realised she had to brake. It was submitted that the only reasonable conclusion on the evidence was that if the respondent had been keeping a proper look out as she had claimed, she could have stopped in ample time to avoid the collision and that the trial Judge should have accepted the appellant's evidence as the more probable explanation of how the collision occurred.
17 In this case, the learned trial Judge's decision depended to a great extent on the fact that he accepted everything that the respondent had said about how the collision had occurred.
18 In Devries v Australian National Railways Commission (1993) 177 CLR 274, at 479, Brennan, Gaudron and McHugh JJ observed:
"More than once in recent years, this Court has pointed out that a finding of fact by a trial Judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial Judge's finding depends to any substantial degree on the credibility of a witness, the finding must stand unless it can be shown that the trial Judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable"."
19 It is apparent from the evidence of the respondent that, according to her, the appellant's vehicle had overtaken her and come back into the left lane "a few metres; very few metres" in front of her. It had then braked
(Page 7)
- "just immediately after he completed the overtaking". The respondent said that the appellant's car had braked very quickly and that is why she could not avoid hitting it.
20 The appellant's counsel has produced calculations in support of the proposition that the respondent's evidence must have been wrong and that she should have had sufficient time to brake without colliding with the rear of the appellant's vehicle. Those calculations make assumptions that are not necessarily correct. The position which the learned trial Judge accepted was that the appellant had come back to the left hand side of the road directly in front of the respondent's motor cycle, and had immediately braked in such a manner that she could not avoid hitting him. If that was the fact, the calculations do not establish that the respondent was not telling the truth. They are based on different assumptions, as is ground 1 of the appeal which relies on estimated lengths of travel of the vehicles in certain conditions.
21 Subparagraph 1.9 of ground 1 says:
"The trial Judge should have accepted the appellant's evidence in this matter as the more probable explanation of how the collision occurred."
22 That particular is based on estimates and conclusions which cannot sit with the respondent's evidence which the trial Judge accepted and which has not been shown to be incorrect - cf State Rail Authority of New South Wales v Earth Line Constructions Pty Ltd (in liq) (1999) 73 ALJR 306.
23 In my view, ground 1 has not been made out, as the learned Judge accepted that the respondent was telling the truth about how the accident occurred.
24 Ground 2 of the appeal is:
"The learned Judge erred in law in finding against the credibility of the appellant because he has misused his position of observing the witnesses."
25 The first particular of this ground is again based on an alleged mistake by the learned trial Judge concerning the time it would take to travel the whole length of the straight from the bend to the point of the collision.
(Page 8)
26 The second is that it is said that the trial Judge found that the respondent, when asked about the circumstances which led him to set the odometer, was a defensive witness who occasionally avoided the question asked. It is said that the appellant's response had been equally consistent with an honest witness who is accused of lying.
27 The third particular is that the issue of setting the odometer had no real relevance given the appellant's evidence that he did not realise the turn-off to Cheyne Beach was located in the straight prior to overtaking the respondent.
28 The matters arising from the odometer are in the paragraph of his Honour's reasons which reads as follows:
"Before he was cross-examined I thought that the defendant had given his evidence in a fairly straightforward uncomplicated sort of fashion. However I observed a marked change during the course of his cross-examination. Asked about the circumstances which led him to set his odometer, I thought that the defendant was a defensive witness who occasionally avoided the question he was being asked."
29 The learned trial Judge was in a position to judge whether the appellant was a defensive witness or occasionally avoided a question he was being asked. It does not assist the appellant to say that the issue of setting the odometer had no real relevance given the appellant's evidence that he did not realise the turn-off to Cheyne Beach was located in the straight prior to the appellant overtaking the respondent.
30 In my view, the first three particulars of this ground are not established.
31 The next particular is that it is said that the learned trial Judge used a photograph of the scene to draw an adverse inference against the appellant. Again, this is concerned with an impression which the trial Judge said he had about the appellant. The relevant passage was only an example given by the trial Judge as to why he thought that there had been a marked change in the appellant's evidence during the course of his cross-examination.
32 It was next complained that there was no basis for the learned trial Judge's finding that he disbelieved the appellant's evidence that the appellant had made a conscious decision not to get into a detailed discussion about the circumstances of the accident with the respondent at
(Page 9)
- the accident scene because she was badly injured. It was submitted that such an attitude was reasonable in the circumstances as the respondent had been seriously injured.
33 The learned trial Judge had come to the conclusion that what the appellant had said to the plaintiff was an excuse for his conduct and not the result of an innocent person seeking to disengage from a conversation with a person who was lying injured at the side of the road. In my view, it was open to the trial Judge to come to such a conclusion in all the circumstances. Further, it cannot be said, as it is in the grounds of appeal, that the learned Judge erred in finding that the statement by the appellant to the respondent at the scene of the accident was more consistent with the respondent's evidence than that of the appellant.
34 It is next asserted that the learned trial Judge failed to consider relevant matters which supported the credibility of the appellant, namely, that even if the appellant overtook the respondent as she alleged, it would still have taken him over 100 metres to stop; that in those circumstances the respondent should have been able to stop her motor cycle within the same distance if she had been driving at a substantially slower speed than the appellant.
35 In my view, that assertion disregards the evidence of the respondent, which is set out above, as to the manner in which the collision occurred. I will not repeat the respondent's evidence in that regard again; but, in my opinion, ground 2 of the appeal is not established.
36 Ground 3 is that the learned Judge erred in finding against the credibility of the appellant's wife in that the reasons given by the trial Judge do not support the findings he made.
37 When discussing the evidence of Mrs Buscombe, the learned trial Judge said that after the appellant's vehicle passed the motor cycle, Mrs Buscombe had continued to feed her baby. She had not thought that her husband had cut in on the motor cyclist and testified that she did not know why her husband had stopped the vehicle. She thought that it had been stopped somewhere between 20 and 30 seconds prior to the collision.
38 The learned Judge said that, cross-examined about her recollection of the events, Mrs Buscombe had confirmed that she had been concentrating on feeding her baby and that the time the vehicle was stationary before commencing to make a turn to the right was not 5 seconds but more like 20 seconds, because they had had to wait for a car from the other
(Page 10)
- direction. When Mrs Buscombe was asked how she knew this, she replied that she had learnt this because of what her husband had told her and not from her own observations.
39 In all the circumstances, it is my view that Mrs Buscombe's evidence was not such that it could be used to disturb the Judge's findings in this matter.
40 The next ground of appeal is that the learned trial Judge erred in law in failing to consider relevant facts, inferences and credibility. It was said that the learned trial Judge had failed to consider that even on her own evidence, the respondent must have travelled about 300 metres behind the appellant's vehicle after she realised that he had overtaken her and crossed in front of her, and that she had failed to explain why she had been unable to stop prior to the point of collision. That assertion, in my view, is completely contrary to the respondent's evidence which was accepted and it therefore cannot be sustained.
41 It is next said that the failure by the respondent to state at the scene, or to the police in her statement, that the appellant had suddenly cut in front of her and braked sharply, together with her question to the appellant concerning what had happened, indicated that she did not know what had happened, that those facts should have led the trial Judge to make an adverse finding against the respondent.
42 It is apparent from her evidence, which was believed, that the respondent did know what had happened. She could have asked the appellant what had happened in the sense of asking why he had suddenly braked in front of her, as he had done.
43 This ground of appeal should not be sustained.
44 The final ground of appeal is that the learned trial Judge erred in finding that there was no inconsistency between the respondent's statement at the scene and her evidence at the trial.
45 Again, it is said that the respondent's question to the appellant as to what happened indicated that she did not know what had happened. I have already dealt with that matter
46 It is also said that the respondent's failure to mention at the scene, or to the police, that the appellant had overtaken her and cut in front of her suddenly and then stopped, was inconsistent with her statement to the police that the appellant had stopped suddenly in front of her. Again, the
(Page 11)
- learned trial Judge accepted what the respondent had said in her evidence. In my view, the respondent's evidence was not inconsistent with what she had told the police.
47 It was said that the statement that the appellant had stopped suddenly was consistent with the respondent failing to keep a proper look out and only seeing the appellant's vehicle at the last moment and therefore thinking that the appellant had stopped suddenly.
48 In my opinion, that ground cannot be sustained in view of the learned Judge's findings of fact which have been dealt with above.
49 In my opinion, the grounds of appeal have not been made out and the appeal should be dismissed with costs.
50 MILLER J: I have had the benefit of reading in draft the reasons published by Wallwork J. I am in agreement with those reasons and have nothing further to add.
51 BURCHETT AUJ: I have read in draft the reasons for judgment of Wallwork J. I agree with them and the orders he proposes.
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