Craig Joseph Darmody v Mark Laduzko

[2008] ACTCA 17

CRAIG JOSEPH DARMODY v MARK LADUZKO
[2008] ACTCA 17 (14 November 2008)

Supreme Court Act 1933 (ACT), s 37N
Court Procedure Rules 2006 (ACT), r 5606

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 2 - 2008
No. SC 850 of  2003

Judges:        Gray P, Refshauge and Marshall JJ
Court of Appeal of the Australian Capital Territory
Date:           14 November 2008

IN THE SUPREME COURT OF THE       )          No. ACTCA 2 - 2008
  )          
AUSTRALIAN CAPITAL TERRITORY    )          No. SC 850 of  2003
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:CRAIG JOSEPH DARMODY

Appellant

AND:MARK LADUZKO

Respondent

ORDER

Judges:  Gray P, Refshauge and Marshall JJ
Date:  14 November 2008
Place:  Canberra

THE COURT ORDERS THAT:

1. The application for leave to receive further evidence is dismissed.

1. The appeal is dismissed with costs.

IN THE SUPREME COURT OF THE       )          No. ACTCA 2 - 2008
  )          
AUSTRALIAN CAPITAL TERRITORY    )          No. SC 850 of  2003
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:CRAIG JOSEPH DARMODY

Appellant

AND:MARK LADUZKO

Respondent

Judges:  Gray P, Refshauge and Marshall JJ
Date:  14 November 2008
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. On 30 June 2001, a motor vehicle accident occurred which resulted in the appellant, Mr Craig Darmody, incurring physical injuries.  Mr Darmody issued a proceeding in the Supreme Court of the Australian Capital Territory alleging that his injuries resulted from the negligence of the driver of a vehicle owned by the respondent.

1. The primary judge, Higgins CJ, dismissed Mr Darmody’s application.  He was not satisfied that Mr Darmody had proved that the driver of the respondent’s vehicle, Ms Laduzko, was negligent in her driving.

1. Chief Justice Higgins made the following findings of fact:

·         both drivers were proceeding in a northerly direction on Gundaroo Road with Ms Laduzko’s Land Cruiser travelling in front of Mr Darmody’s panel van;

·         the accident occurred at about four kilometres north of Sutton in New South Wales, approaching the intersection of Gundaroo Road with Vaughan Drive;

·         Mr Darmody intended to continue travelling on Gundaroo Road.  Ms Laduzko intended to turn right into a property known as Sutton Lodge;

·         Mr Darmody was determined to overtake Ms Laduzko’s vehicle and by the time he approached the rear of the Land Cruiser it was travelling relatively slowly.  Even though he knew that Sutton Lodge was there, Mr Darmody did not consider that Ms Laduzko would turn into Sutton Lodge;

·         Ms Laduzko saw Mr Darmody’s vehicle approaching behind her as she approached the Sutton Lodge turnoff.  At about this time she slowed because another vehicle had turned right into Gundaroo Road from Vaughan Drive.  Mr Darmody also slowed down as a result;

·         when the third vehicle passed the other two vehicles, Mr Darmody accelerated closer to the Land Cruiser and signalled right to overtake it.  At this stage, the Land Cruiser was about 100 metres from the entrance to the Sutton Lodge driveway and Ms Laduzko, at the same time, indicated to turn right into the driveway;

·         on signalling to turn into the driveway, Ms Laduzko commenced to brake. Mr Darmody saw the Land Cruiser’s signal lights illuminated and realised that he should not pull out to pass the Land Cruiser and decided to drop back.  But being too close to the rear of the Land Cruiser, he panicked and braked heavily;

·         the vehicles did not collide but the load in the rear of the panel van caused it to lose balance and leave the roadway, striking a power pole.  The pole was unsafely sited.

1. The primary judge was not satisfied that Ms Laduzko gave insufficient warning of her intention to turn into Sutton Lodge.  Central to this conclusion was Mr Darmody’s concession, in the primary judge’s words, “that, if the driveway was 100 metres away, as it appears it was, he had sufficient notice of her intention to turn”.

1. On appeal, counsel for Mr Darmody submitted that the trial judge’s findings did not resolve conflicts in the evidence of the two drivers and that no findings were made on some important issues.  Counsel focussed on a question asked of Mr Darmody during cross-examination in which counsel for the respondent asked (in respect of the time when Mr Darmody saw the Land Cruiser’s indicator and brake lights come on):

Was [your vehicle] partly on your correct side of the road and partly on the incorrect side of the road, in the process of overtaking, or had you got to the stage of crossing to overtake?...

The answer was:

I had actually got to the stage of crossing to overtake.

1. Mr Toomey, who appeared as counsel for the appellant, submitted that this answer meant that Mr Darmody’s evidence was that he had crossed, or was crossing, onto the opposite side of the road.

1. In our view, the three alternatives offered in the question essentially were:

·         were you partly in your lane and partly in the overtaking or oncoming lane?

·         were you actually overtaking, that is, passing the Land Cruiser?

·         were you about to cross the middle of the road to overtake without having done so or having been actually overtaking?

1. It should be noted that this was cross-examination by counsel for the respondent.  In evidence-in-chief, no assertion had been made as to Mr Darmody’s position on the road immediately prior to him losing control of the panel van.  The question did not contain the inference that Mr Darmody was on the incorrect side of the road.  When considered in this context, the answer given by Mr Darmody that he had got to the stage of crossing to overtake is only consistent with the third alternative.  It is also consistent with his Honour’s finding at [22] of the judgment that:

At that point, he realised he should not pull out to pass…

1. His Honour should not be taken, contrary to the submission of Mr Darmody’s counsel, not to have decided where Mr Darmody was on the road when Ms Laduzko indicated.  However, where Mr Darmody was, in any event, cannot govern whether Ms Laduzko acted negligently or not in her driving.

1. Counsel for Mr Darmody submitted that Ms Laduzko did not pay sufficient attention to the whereabouts of a vehicle travelling behind her at a speed greater than the speed at which her vehicle was travelling.  Ms Laduzko had no obligation to be especially aware of Mr Darmody’s speed.  Her relevant obligation was to give road users sufficient warning of her intention to turn right.  The evidence supports the Chief Justice’s conclusion that she gave Mr Darmody about 100 to 110 metres warning.  His Honour assessed correctly that giving such warning did not involve negligence, on her part, in all the circumstances.

1. The grounds of appeal relied on by Mr Darmody alleged that the primary judge should have found that Ms Laduzko was negligent by failing to give adequate warning of her intention to turn and by failing to keep a proper lookout.  The final ground challenged his Honour’s finding that 110 metres from the turn was an adequate distance in which to indicate in the circumstances.  Each ground is misconceived.  Each ground, in effect, sought to place the onus on Ms Laduzko to keep a constant watch in her rear vision mirror on Mr Darmody’s movements.  She had no obligation to do so, and if she had done so, she may well have collided with the vehicle which turned from Vaughan Drive, in front of her, into Gundaroo Road.  No serious challenge was made in oral submissions to the finding that 110 metres was an adequate distance for notice to be given of an intention to turn.

1. The notice of appeal also sought an order that the court receive further evidence.

1. The application to do so relies upon s 37N of the Supreme Court Act 1933 (ACT) which provides:

(1)The Court of Appeal must have regard to the evidence given in the proceeding out of which the appeal arose.

(2)The Court of Appeal may draw inferences of fact from that evidence.

(3)The Court of Appeal may receive further evidence in any of the following ways:

(a)by oral examination before the court or a judge;

(b)on affidavit;

(c)by audiovisual link or audio link;

(d)any other way the court may receive evidence.

(4)In this section:

audio link––see the Evidence (Miscellaneous Provisions) Act 1991, section 16 (Definitions for pt 3).

audiovisual link––see the Evidence (Miscellaneous Provisions) Act 1991, dictionary.

1. The procedure for doing so is regulated by Court Procedure Rules 2006 (ACT).  Rule 5606 provides:

(1)This rule applies—

(a)to an application to the Court of Appeal to receive evidence on a hearing of an appeal under this part in addition to evidence in the proceeding appealed from; and

(b)      unless the Court of Appeal otherwise orders.

(2)The application must be made on the hearing of the appeal.

Note     Pt 6.2 (Applications in proceedings) applies to the application.

(3)Not later than 28 days before the day set for the start of the hearing of the appeal, the applicant must file 1 or more affidavits stating—

(a)the grounds of the application; and

(b)any evidence necessary to establish the grounds of the application; and

(c)any evidence that the applicant wants the Court of Appeal to receive.

(4)The evidence of any other party to the appeal must be given by affidavit filed in the court not later than 7 days before the day set for the start of the hearing of the appeal.

(5)A party to the appeal must, not later than the time for the party to file an affidavit under this rule—

(a)file the number of copies of the affidavit that the registrar directs; and

(b)serve 3 stamped copies of the affidavit on each other party to the appeal.

(6)If the Court of Appeal orders that it will receive the evidence in the appeal, and the evidence is to be given by an expert witness, the following rules apply, with necessary changes, to the appeal:

·division 2.12.1 (Expert evidence generally)

·division 2.12.2 (Multiple expert witnesses for same issue)

·rule 1242 (Supplementary expert reports)

·rule 1243 (Expert evidence to be covered by expert report)

·rule 1244 (Expert reports admissible as evidence of opinion etc)

·rule 1245 (Requiring attendance of expert for cross-examination etc)

·rule 1246 (Tender of expert report).

1. Mr Darmody’s written submission referred to the evidence of the driver of the third vehicle which had turned right from Vaughan Drive and across Ms Laduzko’s path to head along Gundaroo Road. 

1. No grounds as to why leave should be given to Mr Darmody to adduce this evidence were provided to the Court.  Nor was an affidavit filed as to the content of this evidence.  There was no explanation given as to why the evidence was not adduced at trial.

1. Mr Toomey pressed the application but put forward no ground or explanation to justify a grant of leave.  In these circumstances, the court refused the application for leave to receive further evidence.

1. The appeal is without merit and should be dismissed.

   I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date:    14 November 2008

Counsel for the Appellant:  Mr B M J Toomey QC with Mr G Blank
Solicitor for the Appellant:  United Legal
Counsel for the Respondent:  Mr J E Maconachie QC with Mr P Ryan
Solicitor for the Respondent:  Moray & Agnew
Date of hearing:  10 November 2008
Date of judgment:  14 November 2008