Card and FAI General Insurance Company Ltd v Belz

[1995] QCA 141

IN THE COURT OF APPEAL	[1995] QCA 141
SUPREME COURT OF QUEENSLAND

Appeal No. 195 of 1994

Brisbane

Before Fitzgerald P.
McPherson J.A.
Davies J.A.

[Belz v. Card & FAI]

BETWEEN

VALERIE JEAN BELZ

(Plaintiff) Respondent

- and -

WALTER LESLIE CARD

(Defendant) Appellant

- and -

FAI GENERAL INSURANCE COMPANY LIMITED

(Defendant by Election)

REASONS FOR JUDGMENT OF THE COURT

Judgment delivered the 21st day of April 1995

Quantum was agreed at this trial of the plaintiff's action for damages for personal injuries arising out of a motor vehicle collision on the highway. Liability, or perhaps it is better described as the apportionment of responsibility, for that loss is the only issue on this appeal by the defendant. The trial judge found the appellant defendant 60% to blame and the plaintiff 40% to blame for what happened.

The collision occurred on the night of 28 December 1992 on the road from Ipswich to Fernvale. The plaintiff Ms. Belz was driving to Fernvale in a Holden sedan in which there were two passengers Mrs Colburn and Mrs Craik. She was travelling at about 90 to 100 kph when she came over a rise and saw ahead of her what appeared to be three approaching lights, one brighter than the other two. The impression formed by the persons in the plaintiff's vehicle was that they were confronted by a car with two headlights travelling towards them, and that the other brighter light was that of a motor cycle apparently engaged in overtaking the oncoming car. As they came closer together, the light of the motor cycle, as they thought it to be, appeared to move more to its right and so further into the plaintiff's path of travel.

The plaintiff was naturally confused by what she saw and responded by reducing her speed and moving progressively further to the left until her vehicle began travelling off the edge of the road and on to the verge. It was then that the impact occurred, with the right hand front of her vehicle coming into collision with the right hand front of the defendant's car.

It turned out that the single light which the plaintiff had seen was not that of a motor cycle, but of the defendant's car parked on the plaintiff's side of the road but facing in her direction. The single light was one of two headlights on the defendant's car that was operating on high beam. The other headlight on his car was not working at all, which, according to independent evidence at trial, had been in that condition for some days before the accident.

The defendant's account of the matter was that, while
driving along the same road in the opposite direction (from
Fernvale to Ipswich), he discovered his car had a flat tyre.

He pulled off the road to his left to attend to it but found that the grass growing at the edge of the verge on that side was high, leaving little margin for him to park there and work on the wheel in safety. Noticing a bus stop or open space on the opposite side of the road, he drove across the highway and parked his car facing the direction of the oncoming traffic on that side. It was while attending there to the flat tyre that the plaintiff's vehicle collided with his car.

The evidence of the plaintiff and her two passengers at the trial was that only one headlight on the defendant's car was on at the time they saw it; that the defendant's hazard warning lights were not illuminated; and that his car was parked only about two metres or 6 feet from the edge of the bitumen. The defendant, and his passenger (who was his 10 year old son), as well as his wife, who arrived at the scene not long after the collision, gave evidence to the contrary.

The trial judge resolved the conflict in favour of the

plaintiff and her witnesses.

On appeal the defendant did not challenge the judge's findings of fact except the finding about the distance that the defendant's car was parked from the edge of the bitumen.

The defendant said the distance was about 10 feet and his son said it was 13 feet. His wife to some extent confirmed their testimony in that regard. It was said that the evidence of the plaintiff and her witnesses should not have been accepted because it was imprecise and was based on an inspection of the scene that took place some time after the accident.

There are, however, sound reasons why the judge's findings on this point should not be disturbed. The defendant's son and wife were naturally, if only subconsciously, partisan witnesses. It was a matter for remark that the son expressed his estimate of distance not in metric but imperial measure, which it would have been natural for the defendant to use but not perhaps for a boy of the age of 10. Her Honour did not accept the son's evidence on the point. What was more important, the defendant had sworn an answer to an interrogatory which gave the distance as 6 feet from the edge of the bitumen.

It was open to the defendant at the trial to give evidence to detract from the effect of that answer (Gannon v. Gannon (1971) 125 C.L.R. 629, 639-641), which to some extent he attempted to do; but the judge was entitled to reject his oral evidence and to act on the answer as she did. She said that, when cross-examined, the defendant became "evasive and aggressive" about it, "no doubt as he knew it was inconsistent with his present case and more consistent with the plaintiff's case". In the end her Honour found it more probable than not that the defendant's vehicle was quite close to the edge of the bitumen and not more than 6 feet from the edge of the road. No basis has been shown for disturbing this finding. In any event, counsel for the appellant was unable to say that the outcome would have been different in any material respect if the defendant's car had in fact been parked as much as 10 feet from the edge of the bitumen.

This leaves for consideration only the judge's apportionment of responsibility of 40% to the plaintiff and 60% to the defendant. Mr Oliver, who appeared for the defendant on appeal, boldly asserted that the apportionment should have been 100% in his client's favour. He submitted that, as the plaintiff's vehicle approached the defendant's car, she ought to have become progressively more aware that what she saw ahead of her was not a motor cycle travelling on its incorrect side of the road, but a car parked on the plaintiff's left hand side, off the road, facing in the wrong direction, without its hazard warning light showing, and with only a single headlight, which was on high beam. The plaintiff, he said, should simply have stuck to her proper path on her correct side of the road, judging her position, and the location of the defendant's stationary vehicle by reference to the continuous white line marking the edge of the bitumen on her side. She should not have acted so unreasonably as to continue taking evasive action by moving to her left.

As has often been said in the past, a submission like that proceeds exceedingly ill from the mouth of one who created the dilemma in which the plaintiff found herself, and who, in consequence, is not justified in being minutely critical of the plaintiff's response to it. Out of concern for his own safety, the defendant moved across the road and stopped where he did without paying sufficient attention to the danger he was creating for other users of the highway arising from confusion it would create in the minds of those, who, like the plaintiff, could not in the circumstances reasonably have been expected to realise the true explanation for the unexpected phenomenon which she saw in front of her.

Appellate courts are seldom prepared to interfere with the apportionment of responsibility reached at first instance by the tribunal of fact. There is no good reason for doing so in the present case.

The appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 195 of 1994

Brisbane
[Belz v. Card & FAI]

BETWEEN

VALERIE JEAN BELZ

(Plaintiff) Respondent

- and -

WALTER LESLIE CARD

(Defendant) Appellant

- and -

FAI GENERAL INSURANCE COMPANY LIMITED

(Defendant by Election)

Fitzgerald P.
McPherson J.A.

Davies J.A.

Judgment delivered 21/04/95

Reasons for judgment by the Court

APPEAL DISMISSED WITH COSTS.

CATCHWORDS	PERSONAL INJURY - Motor vehicle accident - Apportionment of responsibility - Car facing in wrong direction at night - Appellant driver created dilemma for respondent driver therefore not justified in being critical of respondent's attempts to take evasive action.
Counsel:	R.J. Oliver for the appellant N.E. Ulrich for the respondent
Solicitors:	Baker Johnson for the appellant Bushnells for the respondent

Hearing Date: 6 April 1995