Charleston v Smith
[1999] WASCA 261
•19 NOVEMBER 1999
CHARLESTON -v- SMITH [1999] WASCA 261
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 261 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:26/1999 | 15 OCTOBER 1999 | |
| Coram: | MALCOLM CJ KENNEDY J MURRAY J | 19/11/99 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | IAN CHARLESTON DESMOND JOHN SMITH |
Catchwords: | Personal injuries Appeal against dismissal of claim Whether trial Judge adequately identified findings of fact and credibility of witnesses' evidence upon which he found appellant solely responsible for accident Comments on structure of judgment and desirability to express reasons so that chain of reasoning between analysis of evidence and findings can be fully understood and followed Whether reasons sufficient to show conclusions reached concerning credibility and findings of fact |
Legislation: | Nil |
Case References: | Abalos v Australian Postal Commission (1990) 171 CLR 167 Carlson v King (1947) 64 WN (NSW) 65 Danagher v Racing Penalties Tribunal (1995) 13 WAR 531 Devries v Australian National Railways Commission (1993) 177 CLR 472 FM Foods Pty Ltd v Lake Cumbeline [1999] HCA 15; (1999) 161 ALR 594 Frichot v Zalmstra, unreported; FCt SCt of WA; Library No 980291; 13 May 1998 Garrett v Nicholson [1999] WASCA 32 Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639 Lloyd v Faraone [1989] WAR 154 Pettitt v Dunkley [1971] 1 NSWLR 376 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 30 Sutton v Derschaw (1995) 82 A Crim R 318 Underwood & Ors v Gayfer [1999] WASCA 56 Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : CHARLESTON -v- SMITH [1999] WASCA 261 CORAM : MALCOLM CJ
- KENNEDY J
MURRAY J
- Appellant (Plaintiff)
AND
DESMOND JOHN SMITH
Respondent (Defendant)
Catchwords:
Personal injuries - Appeal against dismissal of claim - Whether trial Judge adequately identified findings of fact and credibility of witnesses' evidence upon which he found appellant solely responsible for accident - Comments on structure of judgment and desirability to express reasons so that chain of reasoning between analysis of evidence and findings can be fully understood and followed - Whether reasons sufficient to show conclusions reached concerning credibility and findings of fact
Legislation:
Nil
(Page 2)
Result:
Appeal dismissed
Representation:
Counsel:
Appellant (Plaintiff) : Mr D R Clyne
Respondent (Defendant) : Mr G P Bourhill
Solicitors:
Appellant (Plaintiff) : Kay & Co
Respondent (Defendant) : Phillips Fox
Case(s) referred to in judgment(s):
Abalos v Australian Postal Commission (1990) 171 CLR 167
Carlson v King (1947) 64 WN (NSW) 65
Danagher v Racing Penalties Tribunal (1995) 13 WAR 531
Devries v Australian National Railways Commission (1993) 177 CLR 472
FM Foods Pty Ltd v Lake Cumbeline [1999] HCA 15; (1999) 161 ALR 594
Frichot v Zalmstra, unreported; FCt SCt of WA; Library No 980291; 13 May 1998
Garrett v Nicholson [1999] WASCA 32
Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639
Lloyd v Faraone [1989] WAR 154
Pettitt v Dunkley [1971] 1 NSWLR 376
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 30
Sutton v Derschaw (1995) 82 A Crim R 318
Underwood & Ors v Gayfer [1999] WASCA 56
Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697
Case(s) also cited:
Nil
(Page 3)
1 MALCOLM CJ: This is an appeal from a judgment in the District Court on 20 February 1999 by which the learned Judge dismissed the appellant's claim against the respondent for damages for negligence arising out of a motor vehicle accident.
2 At approximately 5.30pm on 21 February 1997 the appellant was riding a motorcycle north on Rudderham Drive in the Rous Head Industrial Area, North Fremantle when he collided with a Fruehauf trailer being drawn by an Atkinson Prime Mover driven by the respondent. The respondent had approached the junction travelling in an easterly direction in North Mole Drive. The accident happened when he was making a right hand turn into Rudderham Drive at the junction. As North Mole Drive terminated at a "T" junction, the respondent was required to give way to traffic on Rudderham Drive.
3 The trial in the District Court was limited to the issue of liability. The appellant pleaded that the respondent was negligent in that he failed to give way:
"(a) at a stop sign;
(b) at a T-junction; and
(c) to a vehicle on his right."
4 There was, however, no suggestion at the trial that the junction was controlled by a stop sign. It was also alleged that the respondent failed to keep any or any proper lookout and failed to steer or control his vehicle so as to avoid a collision. The issues at trial were summarised by the learned Judge as follows:
"The gravamen of the [appellant's] complaints are that the [respondent] failed to keep a proper lookout and observe the approach of the [appellant's] motorcycle, and as a consequence failed to give way to it, driving into its path. The [respondent] denies that he was negligent as alleged and asserts that the accident was caused or alternatively contributed to by the negligence of the [appellant] in driving at a speed excessive in the circumstances, failing to keep any or any proper lookout and failing to take appropriate steps to avoid the collision."
5 The trial was conducted upon the basis of the following agreed facts:
(Page 4)
- (i) When the front of the prime mover was level with the western kerb alignment of Rudderham Drive, the respondent's view to the right or south down Rudderham Drive was of the order of 110 to 130m.
(ii) Rudderham Drive at its southern end forms a junction with Birksgate Road and the distance from there to the junction of North Mole Drive and Rudderham Drive is approximately 500m.
(iii) The speed limit in the area at the relevant time was 60km/h.
6 These agreed facts were incorporated by the learned Judge into his findings of fact.
7 The appellant was a 35 year old truck driver who had held a motorcycle licence for some 18 years. He had ridden a motorcycle regularly. On the afternoon of the accident he left his place of employment, Jayde Transport, in Birksgate Road riding his motorcycle. He entered Rudderham Drive from Birksgate Road. He said he was travelling at 60 to 65km/h and overtook several cars which he had first observed in Birksgate Road, just as they turned into Rudderham Drive. He was riding approximately a metre left of the centre dividing line on Rudderham Drive. When approximately 110m from the North Mole Road junction, he observed the respondent's prime mover entering Rudderham Drive. The respondent's vehicle was "rolling out" and the appellant "backed off" preparing to stop. He then observed the prime mover stop with its front about level with the oil line in the northbound lane of Rudderham Drive. When he was about 70 to 80m from the junction, he accelerated back to a normal speed of 60-65km/h to pass in front of the prime mover. At that moment the prime mover pulled out in front of him. He steered toward the rear of the trailer and applied the brakes. The prime mover had moved off when he was about 40-50m away. He was unable to stop his motorcycle. He laid it down on its side at the last moment and collided with the landing legs on the trailer. The appellant accepted that he was very familiar with the junction. He was aware that when approaching the junction it was necessary to use caution as it was a short distance north of a left hand bend in Rudderham Drive, and vehicles could be expected to pull out slowly from North Mole Drive. This familiarity and awareness was regarded by the trial Judge as of significance.
8 The appellant denied that he was closer to North Mole Drive when he passed two vehicles which were proceeding north in Rudderham Drive. He said that he might have been doing 70-75km/h as he passed those vehicles just past the junction of Rudderham Drive and Birksgate Road. He was adamant that the prime mover had stopped after entering
(Page 5)
- Rudderham Drive. He said he did not stop when he saw the prime mover as he had the right of way. In his reasons for judgment the learned trial Judge said:
"It is to be noted that in cross-examination the [appellant] stated that the prime mover had entered Rudderham Drive … when he first observed it, but then asserted that when he first observed it, its front was approximately on the line (level with the western alignment of Rudderham Drive). He stated that the rear wheel of his motorcycle was on its incorrect side of the road when he collided with the trailer, and he would not agree that the prime mover and trailer had almost completed the turn when the collision occurred, being of the view that the front of the prime mover was in the southbound lane of Rudderham Drive and that the vehicle was basically right across the road."
10 The respondent said that as he approached the junction he slowed down. Having checked his left and right he proceeded into Rudderham Drive intending to make a right hand turn. He was nearly halfway into the junction and looking to his right when he observed a motorcycle coming around the bend to his right towards the centre of the road, left of the white line. It appeared to be going extremely fast. He said that when he first observed the motorcycle the bullbar on the front of the prime mover was near, or just over, the dividing line in Rudderham Drive. The total length of the prime mover and trailer was approximately 16m.
11 Having seen the motorcycle, the respondent accelerated to try and clear the junction. He crossed the road mounting the eastern kerb of Rudderham Drive with the left side wheels of the prime mover, which was then proceeding south. He said the motorcycle was braking heavily. The back wheel locked up and slid to the left as the motorcycle went right. The appellant eventually dropped the motorcycle and struck the side of the trailer at approximately the position of the toolbox. The motorcycle hit the trailer triaxle. At impact the rear of the trailer was just west of the
(Page 6)
- centre line of Rudderham Drive. The respondent said he did not see any other vehicles travelling north on Rudderham Drive. The toolbox was located some 8.2m from the bullbar at the front of the prime mover and the distance from the standing leg to the toolbox was 0.5m. The respondent acknowledged that prior to the accident he was very familiar with the junction and aware of the limited visibility to the right. As the prime mover crossed the centre line it was in third gear and travelling at 5-10km/h. He had started to accelerate as he entered Rudderham Drive. He said he did not brake or stop when he saw the motorcycle because that would have brought the rig to a stop in a position where it blocked off both lanes of Rudderham Drive.
12 In cross-examination he repeated that he did not see any headlight on the motorcycle or any other traffic. In cross-examination he said that the motorcycle was just south of the P&O wharves access road when it started to brake and could have been 150m south of the junction when first observed.
13 There were two independent witnesses called by the respondent. Mr Pognault, a truck driver, finished work at Rous Head at about 5.20pm. He drove down Birksgate Road and turned north into Rudderham Drive. As he approached the entrance to 4 and 5 berths (the P&O wharves), he observed the prime mover starting to enter the junction. He said the respondent's vehicle was nearly through the junction as he reached the entrance to P&O wharves when the appellant's motorcycle passed him, continued on and struck the toolbox of the trailer. Mr Pognault said that he was doing 60km/h as the motorcycle passed him and it was travelling "very quickly - extremely quickly". His estimate was that he was some 300m from the junction when he first observed the prime mover. After the accident he stopped and directed the traffic. He said the respondent was in a state of shock. He confirmed that the prime mover was fully into the southbound lane of Rudderham Drive when the motorcycle passed him. He said he saw the prime mover 2 or 3 seconds before the motorcycle passed him. When he saw it he eased off the accelerator as it did not constitute a danger. He estimated that his vehicle was 80 to 100m from the prime mover when passed by the motorcycle. He said that when the appellant passed him, the appellant moved back onto the same side of the road, braked heavily, skidded for about 20m, laid the motorcycle down on its side and hit the toolbox of the trailer.
14 The other witness called for the respondent was Ms Jay, a pay officer, who worked at premises in Birksgate Road. She left work at about 5.30pm and drove her vehicle from Birksgate Road right into
(Page 7)
- Rudderham Drive. As she proceeded north along Rudderham Drive she was startled by the loud noise of a motorcycle. She thought she was doing 60km/h, or perhaps a little more, but was not able to indicate how far along Rudderham Drive she was. She said a motorcycle "flew" past her vehicle and the vehicle in front of her (ie, Mr Pognault's vehicle). As she came around the bend in Rudderham Drive she observed the prime mover at least halfway across the road and the motorcycle was on its side, sliding. Her impression was that the respondent had swung out as wide as he could so that the cab of the prime mover mounted the kerb. It was in that position when the impact occurred. She stopped her vehicle and spoke to the respondent who appeared to be in a state of shock. She stated that after impact the prime mover was facing south having mounted the verge and the trailer was almost straight across the junction.
15 When cross-examined, Ms Jay indicated that she was not quite halfway between Birksgate Road and Rudderham Drive when the motorcycle passed her. That would place her about 250m south of the junction. At that stage Mr Pognault's vehicle was some three car lengths in front of her. After it passed both vehicles, the motorcycle disappeared from view. When she next saw it the motorcycle was sliding several metres back from the respondent's vehicle, the front of which was just on halfway across the road. The motorcycle was sliding as if turning to go around the prime mover, veering right, and was leaning to the right. She did not see the motorcycle hit the truck because her view was obscured by Mr Pognault's vehicle.
16 Having recited the evidence, the learned Judge made the following "findings of fact":
"1. The agreed facts are incorporated in these findings.
2. The [appellant's] motorcycle passed Jay and Pognault's vehicles a short distance south of the entrance to P&O wharves and approximately 100/200m south of the junction.
3. As it passed Jay and Pognault's vehicles the [appellant's] motorcycle was travelling at a speed considerably in excess of the speed limit.
4. The [respondent's] vehicle 'rolled' into the junction and did not come to a stop after entering Rudderham Drive.
5. The [appellant's] evidence that:
(Page 8)
- (i) he passed Jay and Pognault's vehicles near the Rudderham Drive junction with Birksgate Road
(ii) at the time he passed Jay and Pognault's vehicles he was travelling at 70/75km/h
(iii) the [respondent's] vehicle came to a stop shortly after entering the junction
- is incorrect, the latter evidence being indicative of the fact that he was not keeping a proper lookout.
6. The [appellant's] evidence amounted to a reconstruction of the circumstances of the accident intended to demonstrate the [respondent's] culpability, was not cogent, and as a consequence I have no confidence basing findings of fact upon it.
7. Jay and Pognault were independent witnesses and both gave an honest account of their recollections of the circumstances of the accident. It may be that their appreciation of the situation and estimates of distance were not entirely accurate, although I find that they were substantially so.
8. The [respondent] was a credible witness although I had a feeling that the trauma of the situation leading up to, and the accident, may have had to some extent affected the reliability of his recollections.
9. The [respondent] was keeping a proper lookout as the prime mover entered the junction. The [appellant's] motorcycle was not then in view. As it entered the [respondent's] view it was, because of its speed, inevitable that it would collide with the [respondent's] vehicle notwithstanding any steps he took or could have taken to avoid the collision.
10. The accident was due entirely to the negligence of the [appellant] in failing to keep a proper lookout and travelling at an excessive speed which prevented him bringing the motorcycle under control when he observed the [respondent's] vehicle."
(Page 9)
17 Having made those findings the learned Judge immediately expressed his conclusion as follows:
"Having regard to the findings of fact aforesaid the [appellant's] claim is dismissed and the [appellant] is ordered to pay the [respondent's] costs of the action to be taxed."
18 As has been seen, the structure of the judgment identified the allegations of negligence to be determined, recited the evidence of the four witnesses called and then, without any intermediate chain of reasoning, proceeded to make "findings". This structure of the judgment was the subject of the first three grounds of appeal which were as follows:
"1. The learned Trial Judge was wrong in law in failing to identify those findings of fact which he has determined for the purpose of reaching the conclusion that there was no negligence on the part of the Respondent (Defendant) and has thereby deprived the Appellant (Plaintiff) of his ability to properly prosecute an appeal on the merits.
2. The learned Trial Judge's failure to make findings in respect of the following matters of fact makes it unclear as to which version of the facts he has accepted and he has thereby deprived the Appellant of an opportunity to appeal. Those matters which are relevant and which have not been determined by the learned Trial Judge are:
(a) the position of the Respondent's truck on the roadway at the time he first observed the Appellant's motorcycle;
(b) what steps the Respondent took to avoid the collision;
(c) the position of the Respondent's truck at the time of collision;
(d) the point of collision by the Appellant's motorcycle on the truck;
(e) the position of the Appellant's motorcycle on the roadway at the time of the collision;
(f) the speed of the Appellant's motorcycle.
(Page 10)
- 3. The learned Trial Judge was wrong in law in failing to identify what evidence of the Respondent's witnesses he has accepted nor which witnesses he has found to be witnesses of truth. Such an error is material in the circumstances of the case given the significant variations in the evidence of the Respondent and his two witnesses, Mr Pognault and Ms Jay, and in particular in relation to the position of the Respondent's truck on the roadway prior to and at the time of the collision."
19 In my opinion, the starting point for the consideration of the appeal is that there was a finding by the learned trial Judge that when the respondent entered the T-junction, Rudderham Drive to the south was clear, to the extent to which it was in his field of vision. It was submitted by counsel for the appellant that this finding was challenged in ground 6 of the grounds of appeal. However, ground 6(c) accepts that the respondent had "already proceeded into the intersection before sighting the appellant's motorcycle". This is consistent with his Honour's acceptance of the respondent's evidence that when he commenced to enter the junction, Rudderham Drive to the right was clear.
20 When Mr Pognault first saw the respondent he was "some way" south of the entrance to 4 and 5 berths (P&O wharves). It was at that point that he first saw the prime mover "starting to enter the intersection". He then said, "He was approximately up to the white line". It was clear that this was a reference to the centre line on Rudderham Drive. As indicated on the plan, he was then approximately 130m from the junction. Mr Pognault said he was travelling at approximately 60km/h. Mr Pognault's evidence was that when he observed the prime mover:
"I estimated I didn't have to slow down at all because there was a fair distance between travelling from there to there. He was nearly through the intersection when I got to the entrance to P and O ports, approximately there, when a motorbike suddenly passed me and pulled in front of me, braked violently and slid over towards the right and laid the bike on the side. I think he hit the trailer tool-box and I thought he'd gone under the triaxle of the trailer, but only the bike had. He rolled off before that, but the bike mounted up onto the - the trailer, triaxle wheels of the trailer and mounted onto the bike."
21 It was in this context that Mr Pognault gave evidence that the motorcycle passed him "very quickly … extremely quickly".
(Page 11)
22 Later in his evidence Mr Pognault clarified that when he first saw the prime mover it was approaching the white line. He then saw it turning right towards him. He was then asked how far the prime mover had gone into the intersection before the motorcycle passed him. Mr Pognault said:
"It was well over halfway into the intersection, or the prime mover and trailer were over halfway into the intersection … The front of the prime mover would have been on the other side of the road. It was well past the intersection. The rear of the trailer would have still been coming out of the intersection."
23 Mr Pognault made it clear that the prime mover was fully on the right side of the road and starting to straighten up.
24 This evidence was consistent with the evidence of the respondent. Mr Pognault said that he had the truck in view for 2-3 seconds before the appellant went past him on his motorcycle. He estimated that he was 300m south of North Mole Drive. It was put to him by counsel for the appellant, however, that because of the bend, the junction was only visible from a point 110-130m south. It was also put to him that the motorcycle passed him at the entrance of P&O wharves. In my opinion, the estimate of 300m was incorrect and the likelihood is that the distance was somewhere in the vicinity of 130m. Mr Pognault said that he could have avoided the prime mover and trailer by simply taking his foot off the accelerator, without applying the brake.
25 It was submitted by counsel for the appellant that this evidence by Mr Pognault was entirely at odds with the evidence of Ms Jay. It was further submitted that the evidence of Ms Jay was "ad idem" with that of the appellant. Ms Jay gave evidence that at about 5.30pm she drove from her workplace in Birksgate Road into Rudderham Drive. She said that she was proceeding along Rudderham Drive when she was "startled by the noise, loud noise, of a motorcycle passing me, I jumped …". She said she did not "really know" how far she had travelled in Rudderham Drive when the motorcycle passed her. He went past her and passed the car in front of her. She said she was travelling at 60km/h "or a little more", but, "he flew past me; he was flying". Mr Pognault's car was three car lengths ahead of her at that time, probably more. As she came around the bend to the left she said:
"… I saw a truck I would say at least halfway across the road. The cabin of the truck would have been over the halfway mark
(Page 12)
- of the road and the motorbike was turned on its side. Instead of going straight into the truck it was on its side, sliding.
… I saw it sort of slide then I lost sight of it because there was a car in front of me, but as he was going under the truck he was trying to veer away … The truck was trying to veer away from the motorbike. He was swinging out as wide as he could to his left so that the cabin of the truck actually mounted the footpath and ended up facing back the way I had come from with the trailer across the road."
26 She went up to the respondent and said, "You didn't stand a chance mate".
27 In my opinion, that passage is more consistent with the evidence of the respondent and Mr Pognault than with the evidence of the appellant. Counsel for the appellant made much of the comment that when Ms Jay first saw the truck it was "at least halfway across the road". Her later description indicates that in an effort to avoid the collision, the prime mover swung out as wide as it could to the left and the cabin of the truck actually mounted the footpath. This is entirely consistent with the evidence of Mr Pognault.
28 Ms Jay was asked to estimate and mark on the map where she believed she was when the motorcycle overtook her. She did that. She was also asked to mark on the map where she was when she saw the motorcycle skidding. She did that. She said that these positions would not be "totally exact" and would be "just an estimate". She confirmed that she first saw the truck at the same time as she saw the appellant's motorcycle skidding towards it.
29 Ms Jay said that the respondent:
"… looked like he tried to swing it (the truck) out away from the motorbike …"
- The cabin was facing south on the footpath and the trailer was across the width of the road.
30 In cross-examination Ms Jay agreed that the distance from Birksgate Road to the junction with North Mole Drive was probably about 500m. However, she did say that she was not really very good at distances. She agreed that she was not quite halfway between Birksgate Road and Rudderham Drive when the appellant passed her. It was put to her that Mr Pognault's car was "about three, maybe four or five car lengths in front
(Page 13)
- of her, at the most". She said about three. She agreed that after he passed her, the appellant went out of sight. She saw him again a few seconds later, when he was skidding. The motorcycle was then only 5 or 6 feet from the truck.
31 The trial Judge found that both Mr Pognault and Ms Jay were honest witnesses, whose evidence was substantially accurate. It was submitted by counsel for the appellant that Ms Jay confirmed the evidence of the appellant and was inconsistent with that of Mr Pognault. In my opinion, however, the evidence of the respondent, Mr Pognault and Ms Jay regarding the position of the respondent's vehicle immediately prior to and at the time of the collision was substantially consistent. The prime mover was into the east or southbound lane on Rudderham Drive and had mounted the kerb at the time of the collision. It was clearly open to the learned trial Judge to find that neither Mr Pognault's car nor Ms Jay's car, who were travelling at or about 60km/h, were in any danger of colliding with the respondent's vehicle. Both were able to stop safely after the collision occurred.
32 On the evidence, it was clearly open to the learned Judge to find that the appellant's motorcycle was travelling at such an excessive speed that, from the point where he would have first seen the respondent's vehicle, some 130m ahead, that he was unable to stop or slow down to avoid a collision. In my view, this leads inevitably to a conclusion that the accident was solely caused by the excessive speed of the motorcycle. The accident would not have happened had the appellant been travelling at the same speed as Mr Pognault or Ms Jay, both of whom were travelling at the speed limit or, in Ms Jay's case, a little more.
33 The appellant was himself a truck driver and familiar with the area and the nature of the junction of Rudderham Road and North Mole Drive in particular. There was limited visibility between the junction and the 4 and 5 berths (P&O wharves) to the south.
34 As to ground 1, I am of the opinion that the learned trial Judge did sufficiently identify the findings of fact upon which he concluded that the appellant was negligent. His Honour found that the respondent kept a proper lookout as his prime mover entered the junction. The appellant's motorcycle was not then visible. The road was clear in both directions. The appellant passed the vehicles driven by Mr Pognault and Ms Jay at a speed considerably in excess of the speed limit. His Honour found this occurred at a point less than 200m from the point of impact. It was found that the appellant was not keeping a proper lookout because he had
(Page 14)
- thought that the respondent's vehicle had stopped after entering the intersection. The learned Judge found, however, that the respondent's vehicle had rolled into the intersection without coming to a complete stop.
35 Counsel for the appellant submitted that the respondent must not have been keeping a proper lookout because he failed to see either the appellant's motorcycle or Mr Pognault's vehicle. In my opinion, when the respondent saw that Rudderham Drive to the south was clear, he was entitled to turn right in the belief that it was safe to do so. His evidence, which was accepted by the learned trial Judge, that the road was clear when he commenced the turn, is consistent with Mr Pognault's evidence. When Mr Pognault first saw him, the prime mover was already about halfway across Rudderham Drive. This is consistent with Ms Jay's evidence, when properly understood and having regard to her own acknowledgements concerning her limited judgment of distances. Mr Pognault was in a better position to observe what happened.
36 In my view, although it would have been helpful and was desirable for the learned trial Judge to express his reasons in such a way that the chain of reasoning between his analysis of the evidence and the findings he made could be better understood or followed, I am unable to say that the reasons were not revealed to such an extent as to make it possible for the appellate court to determine whether or not his Honour's conclusions were erroneous: Carlson v King (1947) 64 WN (NSW) 65 at 66 per Jordon CJ; Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 - 388 per Moffitt P (with whom Manning JA agreed); and Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 per Moffitt P (with whom Glass JA agreed). These passages were cited and applied in Lloyd v Faraone [1989] WAR 154 at 163 - 164 per Malcolm CJ (with whom Brinsden J agreed) and see also Kennedy J at 167 - 168. It is a fundamental obligation of a trial judge to give sufficient reasons for decision. The failure to give adequate reasons to an extent which deprives a party of the right of appeal conferred by statute is itself appealable error and constitutes a failure to afford a litigant procedural fairness, if the result is to deprive a party of an effective right of appeal: Frichot v Zalmstra, unreported; FCt SCt of WA; Library No 980291; 13 May 1998 per Owen J at 14 - 15 (with whom White J agreed). In Danagher v Racing Penalties Tribunal (1995) 13 WAR 531 at 539 - 540 Rowland J said:
"In relation to the giving of reasons, it is now generally accepted that those exercising judicial power should give reasons that are sufficient to expose the reasoning which leads
(Page 15)
- to all relevant and necessary findings: see Lloyd v Faraone [1989] WAR 154 and the authorities therein referred to, to which may be added Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and, in particular, per McHugh JA (as he then was) at 279 - 80; Sun Alliance Insurance Ltd v Massoud [1989] VR 8; Palmer v Clark (1989) 19 NSWLR 158."
- See also Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639 at 640 and 647.
37 There seems to be a developing practice on the part of some judges to structure a judgment by reciting in general terms the nature of the issues, setting out seriatim the evidence of the various witnesses and then proceeding to make findings without any substantial analysis of the process of reasoning leading from the recitation of the evidence to the conclusions expressed by way of findings. In Underwood & Ors v Gayfer [1999] WASCA 56 in a judgment delivered on 15 June 1999, Wallwork J (with whom Kennedy and Murray JJ agreed) noted that after referring to the relevant law as stated in Sutton v Derschaw (1995) 82 A Crim R 318, but without any proper findings of fact, the learned Magistrate held that there was no evidence capable of giving rise to a finding that the appellants, or any of them, had a right to fish in the waters of Willie Creek and Fisherman's Bend, based upon traditional laws and customs. His Worship found that a native title right to fish had not been made out. It was concluded that the findings which were made were contrary to the evidence which had been given at the hearing. The appeal was allowed on the basis that the learned Magistrate did not sufficiently refer to the evidence given by the various witnesses and there were no sufficient reasons given by his Worship to explain how he reached his conclusions. Wallwork J at [59] - [62] referred to the relevant passages in Lloyd v Faraone (supra); Frichot v Zalmstra (supra) and Garrett v Nicholson [1999] WASCA 32. In this case, however, while it would have been preferable for the learned Judge to have expressed his reasons in greater detail, it has been possible to winkle out by reference to the evidence the basis for the findings which were made. It is also relevant that the learned Judge expressly concluded that the appellant's evidence could not be relied upon and could not form the basis of any findings of fact.
38 Notwithstanding the re-assessment of the significance of Abalos v Australian Postal Commission (1990) 171 CLR 167; and Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 per Brennan, Gaudron and McHugh JJ, which was undertaken in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd
(Page 16)
- (In Liq) [1999] HCA 3; (1999) 73 ALJR 306; and FM Foods Pty Ltd v Lake Cumbeline [1999] HCA 15; (1999) 161 ALR 594, I do not consider that this is a case in which it can be said that the learned trial Judge dealt with the matter in a way which would justify the interference of this Court. In my opinion, the learned trial Judge was clearly entitled to conclude that the appellant's evidence could not be relied upon and could not form the basis of any findings of fact.
39 For these reasons ground 1 fails.
40 As to ground 2, I am of the opinion that the learned trial Judge did make it clear that he accepted the evidence of the respondent and that, subject to the qualifications he mentioned, he also accepted that the evidence of Mr Pognault and Ms Jay was substantially correct. His Honour found that the respondent first saw the appellant's motorcycle when the front of the prime mover was close to the centre line of Rudderham Drive. The fact that he did not see the headlight was on was not conclusive because the respondent was already committed to proceed into the junction. At that time the motorcycle was not in view but was travelling at a speed considerably in excess of the speed limit and greater than the 70-75km/h that the appellant himself said he was doing.
41 There was a finding of the position of the respondent's vehicle at the time of the collision. It was found that the point of collision was in the vicinity of the toolbox. Had the appellant been travelling at or even a little above the speed limit he could have slowed down and avoided the collision as both Mr Pognault and Ms Jay did. Both of them were able to stop safely before they reached the respondent's vehicle.
42 For these reasons ground 2 fails.
43 As to ground 3 the learned Judge found the respondent to be a credible witness. He also found that Mr Pognault and Ms Jay were honest witnesses. While it would have been both preferable and desirable for the learned trial Judge to have been more specific about what evidence he accepted, his Honour did make it clear that while their evidence was not entirely accurate, it was substantially so. His Honour also found the respondent to be a credible witness, although he qualified this by saying that the trauma of the situation may have affected his recollection. Nevertheless, on considering the whole of the evidence, he accepted the respondent's account as being substantially correct. The review which I have made of the evidence of Mr Pognault, Ms Jay and the respondent shows that there is no fundamental inconsistency between their accounts.
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- An analysis of their evidence regarding the position of the respondent's vehicle on the roadway prior to and at the time of the collision has been shown to be substantially consistent.
44 For these reasons ground 3 fails.
45 Ground 4 was as follows:
"To the extent that the learned Trial Judge has made a determination that the collision was inevitable because of the Appellant's speed he was wrong in law in that the determination is a conclusion and not a finding of fact and it has failed to either address or identify the evidence upon which it is based so that the conclusion can be properly understood. In particular he has failed to identify the extent to which the Respondent's truck blocked the roadway at the material time so that the determination as to the inevitability of the conclusion [sic collision] can be properly understood."
46 In my opinion, given the surrounding circumstances and the finding of excessive speed, once the respondent was committed to enter the junction and turn right, the learned trial Judge was right to conclude that the collision was inevitable. It appears that as soon as the appellant saw the respondent's vehicle he applied the brakes, the wheels of the motorcycle locked and, not being able to stop because of his excessive speed, the appellant had no alternative but to put the motorcycle on its side. In the circumstances, everything happened too quickly for the respondent to make a judgment other than to do what he did.
47 The limited view to the south which the respondent had was reciprocated by the limited view which the appellant had to the north. This required that the junction be approached from the south with caution. The appellant was very familiar with the locality and ought reasonably to have been aware of the possibilities of vehicles such as that driven by the respondent turning into Rudderham Drive to the right from North Mole Drive. As was demonstrated by both Mr Pognault and Ms Jay, traffic coming from the south, rounding the bend in Rudderham Drive and seeing a vehicle in the position of the respondent's vehicle could either slow down or stop to avoid a collision, although stopping was not necessary, if they were travelling at or even a little above the speed limit.
48 As previously noted, it was common ground that the view to the south from the junction was approximately 110 - 130m. The appellant overtook Ms Jay's vehicle and Mr Pognault's vehicle "somewhere between
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- 100 - 200m" south of the junction. The inference from the evidence clearly was that when the appellant first saw the respondent's vehicle it was travelling slowly through the junction and at that point completely blocking it. There was then nothing the respondent could do to avoid the collision. On the facts, therefore, the learned trial Judge correctly held that, because of the appellant's speed, a collision was inevitable.
49 For these reasons ground 4 fails.
50 Ground 5 was that:
"To the extent that the learned Trial Judge has made a determination that the accident was due entirely to the negligence of the Appellant in failing to keep a proper lookout and travelling at an excessive speed which prevented him bringing the motorcycle under control when he observed the Respondent's truck, again he was wrong in law in that the determination is a conclusion and not a finding of fact and it has failed to either address or identify the evidence upon which it is based so that the conclusion can be properly understood. In particular he has failed to find:
(a) the speed of the motorcycle at the material time when the Appellant is alleged to have observed the Respondent's vehicle;
(b) the distance that the motorcycle was then from the point of impact;
(c) why in the circumstances that speed and inattention prevented the Appellant bringing the motorcycle under control."
51 In my opinion, it follows from the conclusion I have expressed with reference to ground 4 that ground 5 must also fail. The learned Judge found, either expressly or by necessary implication, that the appellant was travelling at a speed considerably in excess of the speed limit and greater than the 70 - 75km/h estimated by the appellant. It was to be inferred from the fact that Mr Pognault, who had the respondent's vehicle in view shortly before being passed by the appellant, was in a position to avoid a collision and was able to stop safely, as was Ms Jay, that the appellant's speed was so great that he was unable to stop in a distance of more than 80 - 100m from the point of impact.
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52 The appellant should have had the respondent's vehicle in view from coming around the bend 130m to the south of the junction. If he did not see him then he could not have been keeping a proper lookout. Mr Pognault's evidence was that he had the respondent's vehicle in view for 2 or 3 seconds before he was passed by the appellant.
53 This is significant. As a matter of simple calculation a vehicle travelling at 60km/h or 16.66m per second would have 7.8 seconds within which to brake and stop within 130m. At 75km/h or 20.83m per second the time would be 5.8 seconds and at 85km/h or 23.61m per second the time would be 5.5 seconds. If the distance was 100m, a vehicle travelling at 60km/h would have 6 seconds to brake and stop. At 75km/h there would be 4.8 seconds, at 80km/h 4.5 seconds and at 85km/h 4.2 seconds. If the distance was only 80m, at 60km/h there would be 4.8 seconds, at 75km/h 3.8 seconds, at 80km/h 3.6 seconds and at 85km/h 3.4 seconds.
54 Thus, if Mr Pognault's evidence was substantially accurate, as the learned Judge found, and he was passed at any point between 100m and 80m from the respondent's vehicle, his ability to stop so as to avoid a collision would be extremely limited at speeds in excess of 75km/h. The finding was that he was travelling considerably in excess of his own estimate of 70 - 75 km/h.
55 For these reasons ground 5 fails.
56 Ground 6 was that:
The learned trial Judge was wrong in law and in fact in failing to find any negligence on the part of the Respondent in circumstances where:
(a) the Respondent was familiar with the intersection;
(b) the Respondent was driving a prime mover with a trailer attached being a total vehicle length of 18.5 [sic 16.5] metres and was entering a road approximately 5.5 metres wide at a T junction with an intention of turning right in circumstances where he had an obligation to give way to his right and an obligation to give way to other vehicles passing along the T junction;
(c) the Respondent entered the intersection and checked for traffic on his right whilst doing a rolling stop rather than coming to a complete halt and had therefore already
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- proceeded into the intersection before sighting the Appellant's motorcycle;
- (d) the Respondent failed to keep a proper lookout in that he failed to observe the illuminated headlight on the Appellant's motorcycle;
(e) the Respondent failed to keep a proper lookout in that he failed to see the motor vehicle of the witness Pognault, on whose evidence his motor vehicle was visible to the Respondent's vehicle for some significant time prior to the Appellant's motorcycle passing it;
(f) on seeing the Appellant's motorcycle, the Respondent accelerated his truck rather than stopping it which, given the length of the truck and trailer as compared to the width of the road, inevitably meant that the entire intersection would be blocked by the truck and he thereby deprived the Appellant of any opportunity to avoid the collision."
57 The respondent saw the appellant's motorcycle. He did not see the headlight on. He was committed to turn right into the junction from the moment when he saw that the road to the north and south was clear.
58 It is implicit from the respondent's evidence, and the findings by the learned trial Judge, that the respondent had commenced to cross into the junction before he would have been able to see Mr Pognault's vehicle or the appellant. When Mr Pognault first saw the respondent's vehicle, the prime mover was already at least half the way across the road. That is consistent with the road being clear when the respondent entered the junction. Mr Pognault was then passed by the appellant. In my opinion, in those circumstances there was no basis for a finding that the respondent failed to keep a proper lookout. Had he been looking right for the whole time after he proceeded into the junction, he would only have had the appellant in view for a few seconds at the most. In the circumstances, his decision to accelerate was understandable, but, as has been seen, at that stage a collision was inevitable.
59 For these reasons ground 6 fails.
60 It follows that the appeal should be dismissed.
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61 KENNEDY J: I have had the benefit of reading in draft the reasons of the Chief Justice, with which I entirely agree. I would therefore dismiss this appeal.
62 MURRAY J: I also respectfully agree with Malcolm CJ that for the reasons given by his Honour, the appeal should be dismissed.
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