Cortiana v Guihot

[2004] NSWCA 348

CITATION:	Cortiana v Guihot [2004] NSWCA 348
HEARING DATE(S):	26 August 2004
JUDGMENT DATE:	30 September 2004
JUDGMENT OF:	Giles JA at 1; Santow J at 2; Hislop J at 3
DECISION:	(1) Appeal dismissed; (2) Appellant to pay the respondent's costs of the appeal; (3) The costs order below is undisturbed.
CATCHWORDS:	Negligence - motor bike collides with car - car towing trailer making right-hand turn - whether judge correctly found that turning indicator working - no error established - whether failure of driver to check for wrongly overtaking motor bike before turning - judge did not deal with this but evidence all one way - no failure - no question of principle. ND
CASES CITED:	Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Derrick v Cheung (2001) 181 ALR 301; Devries v The Australian National Railways Commission (1993) 177 CLR 472; Mifsud v Campbell (1991) 21 NSWLR 725.
PARTIES :	Stephen Cortiana - Appellant Kenneth Wayne Guihot - Respondent
FILE NUMBER(S):	CA 41188/03
COUNSEL:	B Toomey QC & I D Cullen - Appellant L M Morris QC & J Morris - Respondent
SOLICITORS:	Paul A Curtis & Co - Appellant Abbott Tout - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2047/02
LOWER COURT JUDICIAL OFFICER :	Murray ADCJ

CA 41188/03
DC 2047/02

GILES JA
SANTOW JA
HISLOP J

Thursday 30 September 2004

STEPHEN CORTIANA v KENNETH WAYNE GUIHOT

Judgment

1 GILES JA: I agree with Hislop J.

2 SANTOW JA: I agree with Hislop J.

3 HISLOP J: This is an appeal from proceedings in the District Court to recover agreed damages for personal injuries sustained in a motor accident. The proceedings were heard by Murray ADCJ. His Honour found a verdict for the respondent (defendant). He concluded the appellant was the sole cause of the accident and the author of his own misfortune.

4 The accident occurred on Sunday 23 January 2000 at about 4.30pm on Bells Line Of Road, Kurrajong. The appellant, who was born on 19 April 1979, was riding his motorcycle east on that road in a line of traffic. The respondent was driving his Ford Falcon sedan at the head of the line of traffic. He was towing a box trailer. Then followed two motor cars, the appellant on his motorcycle, a friend of the appellant’s (Luca Basilicata) on his motorcycle and a car driven by Mr Bukovinsky. The appellant commenced to overtake the line of traffic in front of him and, in doing so, collided with the respondent’s vehicle as it was making a U-turn to the right. The collision occurred adjacent to the driveway of No. 791 Bells Line Of Road.

5 Bells Line Of Road, at the crash site, runs approximately east-west. The driveway of No. 791 was on the southern side of a straight section of the road with minimal eastbound upgrade. The straight was preceded by an eastbound right curve. The curve was about 213 metres long. The road was straight for a considerable distance east of the driveway. The pavement was bitumenised, 6.2 metres wide and there were unsealed shoulders 2 metres wide on each side of the road. The bitumen was marked with centre and edge lines. An unbroken double centre line extended eastward to 17 metres from the western edge of the driveway of No. 791 then became a broken line for eastbound traffic for a distance of 166 metres. The distance from the commencement of the broken separation line to the eastern post of the driveway was 24.5 metres. The surrounding area was rural, the weather at the time of the accident was fine and dry and the speed limit 90 kilometres per hour.

6 His Honour found the appellant was travelling at approximately 80 kilometres per hour when overtaking. The major impact was between the cycle and the rear offside door of the Falcon in the vicinity of the rear wheel. The trailer was not struck nor did it suffer any apparent damage in the collision.

7 His Honour expressly identified the principal issues for his determination at the trial, as:

a) whether the appellant had crossed the unbroken separation lines when he commenced his overtaking manoeuvre, and
b) whether the respondent signalled his intention to turn to his right by means of the right indicator light on the trailer.

8 As to these issues, his Honour held:

a) that the appellant had commenced the overtaking manoeuvre when about 50 metres from the driveway of No. 791 and in doing so crossed the unbroken separation lines, and
b) that the respondent had signalled his intention to turn to his right by means of the right indicator light on the trailer

9 The appellant submitted on the appeal that there was a third major issue for determination at the trial, namely whether the respondent was negligent by reason of failing to keep a proper lookout for overtaking vehicles prior to commencing the U-turn and that this issue was simply not dealt with by his Honour.

10 The notice of appeal contained 21 grounds of appeal. At the hearing of the appeal Mr Toomey QC, senior counsel for the appellant, accepted the trial judge’s finding that the appellant had commenced the overtaking manoeuvre about 50 metres from the driveway and, in doing so, crossed the unbroken separation lines. He confined himself to two grounds of appeal, namely that his Honour erred:

a) in finding the respondent signalled his intention to turn to his right by means of the right indicator light on the trailer, and
b) in failing to consider and determine whether the respondent was negligent by reason of a failure to keep a proper lookout for overtaking vehicles prior to commencing the U-turn.

These grounds are considered seriatim hereunder.

Did his Honour err in finding the respondent signalled his intention to turn to his right by means of the right indicator light on the trailer?

11 There was conflicting evidence as to this issue at the trial.

12 The evidence supporting the respondent’s contention that the right indicator light was engaged and functioning normally was as follows:

a) The respondent’s evidence that when connecting up the trailer he had checked both the indicator lights on the trailer and found them in working order both before setting out on the Friday and on the Sunday before commencing the journey on which the accident occurred.
b) Mr Bukovinsky’s evidence which confirmed a statement given by him to police on 25/1/2000 in which he stated, “I believe I saw the car and trailer indicators on before the right turn”.
c) The respondent’s evidence, confirmed by Mr Basilicata and Mr Bukovinsky that the car following the respondent moved to the left to pass on the inside of the respondent’s vehicle before the respondent’s vehicle commenced its turn.
d) The respondent’s evidence that he activated the right indicator switch about 100m before the driveway and heard the normal clicking noise. His evidence in this regard was corroborated by his wife. His son and Kim Hogan, who were also passengers in the car, confirmed hearing the clicking noise at the relevant time. The appellant, on appeal, accepted that the indicator switch in the vehicle had been activated.

13 The evidence supporting the appellant’s contention that the right indicator was not functioning was principally as follows:

a) A note written by an investigating police officer, Constable Van Der Hoek which stated that on examination at the scene the left and right indicators on the trailer did not work.
b) The evidence of Constable Harris that he had accompanied Constable Van Der Hoek to the scene. He confirmed the right hand indicator light was not working on examination.
c) The evidence of Constable Mates, a police mechanical examiner, who conducted an inspection of the trailer on 11 February 2000 and found both indicators on the trailer were not operating because the electrical connectors were not contacting. He placed pressure on the connectors and found both indicators to operate correctly at the trailer. As a result of his examination he found the indicators on the trailer were not operating due to poor contact of both indicator wiring connectors. In his oral evidence, Constable Mates expressed the opinion that the connectors were not working at the time of the collision but stated he could not be one hundred percent sure of this and, in a number of places in his evidence, he acknowledged the possibility that the indicators may have been working at the time of the accident though he considered it unlikely.
d) The evidence of Luca Basilicata, who, in his statement to the police made on 23 January 2000 stated “At no stage can I recall seeing the trailer’s indicator driver’s side come on”. He confirmed this evidence at the hearing.
e) The evidence of Mrs Ceinar, the mother of Mr Basilicata, who attended the accident scene whilst the police were present and testified that she observed the indicator lights were not working though she also said Constable Van Der Hoek told her the indicator lights were working when he tested them earlier.

14 I observe that the appellant was unable, by reason of his injuries, to give any evidence as to the circumstances of the collision, and that the cars which were following the respondent’s vehicle were not identified so that no evidence was forthcoming from their occupants.

15 His Honour accepted the evidence of the respondent, supported as it was by Mr Bukovinsky and the other witnesses in his car, that he did signal his intention to turn into the driveway approximately 100 metres prior thereto. His Honour’s preference for this evidence over that advanced for the appellant was based to a substantial degree upon his conclusions as to the credibility of the witnesses. He held the respondent impressed him as a person who would be meticulous in checking the operation of the lights on the trailer when connecting it up; he was satisfied the respondent would have done this, and that when he did so, the lights operated regularly. His Honour said of Mr Bukovinsky that he impressed as a completely independent witness who gave his evidence without embellishment and accurately recorded what he saw and his impressions. His Honour considered Mr Basilicata and Mrs Ceinar had lied in their evidence.

16 As to the police evidence, his Honour found that such evidence was not sufficient to satisfy him that before the accident the lights on the trailer were inoperative. He observed that the trailer had been examined after a heavy impact, which left open the question that the lights were operating efficiently prior to that impact, and that there was also a gap in time between the date of the accident and the inspection by Constable Mates, during which the lighting system could well have been interfered with.

17 These findings create serious difficultly for the appellant. In Devries v The Australian National Railways Commission (1993) 177 CLR 472 at 479 the High Court said:

“… 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 the 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’ “.

18 Mr Toomey QC sought to meet this difficulty in two ways. Firstly he submitted the evidence of the respondent should not have been accepted as his evidence as to his inspection of the lights on the trailer was unsupported, and inherently improbable having regard to the general condition of the trailer and his failure to lead evidence from his wife or son who he said had checked the brake lights at the time he had checked the indicator lights. However there was no evidence that either the wife or son observed the indicator lights at the time. Secondly he submitted that Mr Bukovinski’s evidence was equivocal and should not have been believed as in his statement to the police he had said there was one car between the motorcyclist and the trailer and he had made no mention in his statement that the motorcyclist had pulled out across unbroken separation lines. However these submissions do not establish that the evidence given by these witnesses was glaringly improbable or that his Honour had failed to use or had palpably misused his advantage in accepting that evidence.

19 Mr Toomey QC also submitted that the evidence of Constable Mates and the other police officers incontrovertibly established that the right hand indicator was not illuminated leading up to the collision. Constable Mates’ evidence cannot be so categorised. It was no more than an opinion. He, in his evidence, on more than one occasion had referred to it as “possible” that the indicator light had been illuminated at the relevant time. His Honour was not bound to accept the police evidence particularly in circumstances where there was direct eyewitness evidence from a credible witness that the right hand blinker had been illuminated at the relevant time.

20 For the above reasons I would reject the first ground of appeal.

Did his Honour err in failing to consider and determine whether the respondent was negligent by reason of a failure to keep a proper lookout for overtaking vehicles prior to commencing the U-turn?

21 His Honour did not in terms refer to the argument that the respondent had failed to keep a proper lookout though such failure was particularised in the Statement of Claim and it was agreed by Counsel on appeal that the issue had been argued at the trial. His Honour did find that the appellant was the sole cause of the accident. His reasons for this finding as stated in the judgment, namely that the appellant caused his vehicle to cross unbroken separation lines when a prudent driver would not do so, failed to observe the indicating lights on the respondent’s vehicle, failed to heed the significance of the respondent’s vehicle and other vehicles slowing down and the reason for it, failed to observe the vehicle ahead moving to overtake the respondent’s vehicle on its nearside and the reason why provide a sound basis for a finding of significant contributory negligence but do not, per se, exclude the possibility of negligence on the part of the respondent. Nevertheless his Honour expressly found “there was no negligence on the part of the (respondent)” although he did not give any express reasons for that finding.

22 As this Court held in Mifsud v Campbell (1991) 21 NSWLR 725 at 728:

“…it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case. Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge … may promote a sense of grievance in the adversary and create a litigant who is not only “disappointed” but “disturbed”…. It tends to deny both the fact and appearance of justice having been done. If it does, as in my opinion is the case here, then it will have worked a miscarriage of justice and have produced a mistrial and resulted in what I would take to be an error of law which is reviewable on appeal. Whether it is an error of law or an error of fact, it seems to me a failure by the judge to do what the nature of the office requires.”

23 However “If the only conclusion open on the evidence available at trial was the conclusion reached by the trial judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial” – Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444.

24 In order to decide this ground of appeal it is necessary to determine whether there has been any miscarriage of justice and to that end to determine whether any result other than that the respondent was not negligent was reasonably open on the evidence.

25 Undoubtedly a driver in the position of the respondent has a duty to take reasonable care to check prior to making a turn to the right that no vehicle is overtaking in the adjacent lane. However the duty is one of reasonable care. The driver is not liable in negligence merely because a collision occurs - Derrick v Cheung (2001) 181 ALR 301 at [13].

26 The respondent’s evidence in chief was that he looked in the rear vision mirror just prior to making the turn. He was then travelling at 5 to 15 kilometres per hour. He observed the car behind him veering to the left, he took his eyes from the rear vision mirror and looked ahead then turned around to the right as he was doing his turn, he was about half way across the eastbound (sic westbound) lane when the collision occurred. He did not see the cycle at any time prior to the collision.

27 In cross examination the respondent said he looked in the rear vision mirror just prior to the unbroken lines becoming broken. He was then travelling at 5 to 10 kilometres per hour. He gave the following evidence:

“Q. Your view had improved a bit as to the traffic behind it of the second car by that following car moving to the left, hadn’t it?
A. But it hadn’t moved all that far to make it clear for me.
Q. At that stage you are very close to your turn?
A. Yes.
Q. About how many metres from where you actually turned the wheel to go right, turned the steering wheel?
A. 5 to 10 metres.”

and:

“Q. …you say you looked in your rear vision mirror 5 to 10 metres before you made the turn and at that stage you saw the dark car moved o the left behind you?
A. That’s correct.
Q. What I’m saying is at that stage did you check in your external mirror to see – check that side on the driver’s side?
A. That would possibly have been the last time I checked my mirrors, simply because within that five to ten metres, in a split second I’m upon the particular point of where I’m going to turn, so I’ve then turned to look to where I am turning.”

He agreed that at no stage prior to the collision did he check the external drivers side mirror. He acknowledged the probability that there were more than two vehicles behind him and that motorcyclists may be included.

28 Mr Basilicata in his original statement to police said “The green Falcon had started to turn right into the lane and Steven has gone to overtake him on the right hand side”. In his oral evidence Mr Basilicata said he can no longer recall this aspect of the matter.

29 Mr Bukovinsky in his statement to police said “The rider pulled out to overtake the car and trailer who at the same time found an opportunity to turn right… as the car turned right the motorcyclist seemed to accelerate.” In his oral evidence Mr Bukovinsky said:

“I saw the car with the trailer turning right into a driveway in the area. Prior to turning right it appeared to me that the vehicle was slowing down to find a place to turn. At the time it was slowing down to turn I saw the motorcyclist, one of the two riders pull out to overtake the traffic in front of it, and that’s when the motorcyclist accelerated to get to the front of the traffic and the vehicle turned into the driveway and the motorcyclist connected directly with the vehicle. He also gave evidence “it all was clear to me as soon as (the motorcyclist) pulled out that there was going to be an accident.”

30 The appellant submits that on the evidence it was open to find the appellant was negligent for failing to keep a proper lookout because (a) if the respondent had properly checked his rear vision mirror when he was 5 to 10 metres from his turning point he would have observed the respondent overtaking in the westbound lane or (b) reasonable care required the respondent to look in the rear external mirror immediately before commencing the turn and, if he had done so, he would have seen the appellant overtaking in the westbound lane and could have avoided the collision by stopping.

31 At a speed of 10 kilometres per hour the respondent was travelling at 2.8 metres per second. It would have taken him 1.78 seconds to travel 5 metres and 3.57 seconds to travel 10 metres. The damage to the respondent’s vehicle suggests the distance travelled in the turn was about 3 metres. Thus the time in the turn was 1.07 seconds and the lapsed time from last looking in the rear vision mirror to the time of collision was 2.85 to 4.64 seconds.

32 At a speed of 80 kilometres per hour the appellant was travelling at 22.2 metres per second. It would have taken him 2.25 seconds to travel 50 metres.

33 It must be acknowledged that the above calculations are based upon a series of approximations, any one or more of which may be erroneous. However they do confirm what is apparent from the eyewitness accounts namely that the appellant commenced his overtaking manoeuvre at or momentarily before the respondent commenced his turn and during the period the respondent’s attention had shifted to the road ahead and the place into which he was to turn. Thus the evidence does not support the appellant’s contention that if the respondent had properly checked his rear vision mirror when he was 5 to 10 metres from his turning point he would have observed the appellant overtaking in the westbound lane.

34 When the respondent last looked in his rear vision mirror before turning he had successfully activated the right hand blinker on the trailer about 100 metres before the driveway, he observed in his rear vision mirror that the following car was moving to pass him on the left hand side from which it could be inferred the indicator was working and had been observed by the following vehicle, he saw no vehicle overtaking and it was illegal for a vehicle to overtake at that point. He then looked ahead, presumably to check for oncoming traffic and then to his right where he proposed to proceed. These events occurred in a very short space of time. In my opinion the respondent in the circumstances was entitled to proceed into his turn without again checking his rear vision mirrors either internal or external. His failure to do so did not constitute any lack of reasonable care on his part.

35 In my opinion the only conclusion open on the evidence was that the appellant had failed to establish negligence on the part of the respondent. Accordingly, notwithstanding his Honour’s lack of expressed reasons for finding there was no negligence on the part of the respondent, I would dismiss the appeal.

36 I propose the following orders:

(1) Appeal dismissed.
(2) Appellant to pay the respondent’s costs of the appeal.
(3) The costs order below is undisturbed.

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Last Modified: 10/05/2004