Elias v Allianz Insurance Limited

[2006] NSWCA 141

New South Wales

Court of Appeal

CITATION:	Elias v Allianz Insurance Limited [2006] NSWCA 141
HEARING DATE(S):	16 May 2006
JUDGMENT DATE:	16 May 2006
JUDGMENT OF:	Beazley JA at 21; Santow JA at 1; Tobias JA at 22
EX TEMPORE JUDGMENT DATE:	05/16/2006
DECISION:	Appeal allowed. See orders at [20].
CATCHWORDS:	NEGLIGENCE – Contributory negligence – Onus of proof on defendant.
PARTIES:	Roukas ELIAS (Appellant) ALLIANZ INSURANCE LIMITED (Respondent)
FILE NUMBER(S):	CA 40354/05
COUNSEL:	D K TOOMEY (Appellant) B G SMITH (Respondent)
SOLICITORS:	Stacks/Goudkamp (Appellant) Sparke Helmore (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 4722/03
LOWER COURT JUDICIAL OFFICER:	Hughes ADCJ
LOWER COURT DATE OF DECISION:	undated

CA 40354/05
DC 4722/03

BEAZLEY JA
SANTOW JA
TOBIAS JA

16 MAY 2006

Roukoz ELIAS v ALLIANZ INSURANCE LIMITED

Judgment

1 SANTOW JA:

INTRODUCTION
The appellant, Mr Roukoz Elias, claimed damages for various injuries he claimed to have sustained in a motor vehicle accident. The circumstances briefly were these. Between 8.30pm and 9.30pm on a rainy night on 21 October 2001, the appellant was driving home from visiting a friend. I interpolate here that that may support an inference that he was familiar with the route, although there was no evidence directly on that point.

2 He was travelling north on a sloping road, sloping downwards to a railway underbridge on Balmoral Street at Blacktown; see map at Blue 1, 210. Approaching the underbridge the appellant was proceeding north along Balmoral Street until he came to the traffic lights at the intersection of Kildare Street. He was in the left hand lane of Balmoral Street. He intended after passing through the tunnel to turn left into Richmond Road. Travelling north Balmoral Street is two lanes until the intersection with Kildare Road. North of that intersection Balmoral Street became three lanes by reason of an additional lane formed by a continuation of a left turning lane from Kildare Road into Balmoral Street. From a spot marked by a circle on a photograph at Blue 1, 195, the appellant commenced to move from what had been the left hand lane in Balmoral Street, being now the middle lane after the feeder lane merged with Balmoral Street, to the extreme left hand lane.

3 It was dark and the appellant had his headlights on low beam. It was raining evidenced by the fact that the appellant had his windscreen wipers on and the police who attended the accident wore raincoats. They gave evidence that they wore raincoats only when there was considerable rain.

4 A car was parked in the underpass, in the left hand lane, probably a little over halfway through the tunnel, being about 15 metres from the southern side of the bridge. The car was dark in colour and none of its lights were on.

5 It was not disputed that there was a “no stopping” sign there at the relevant time, that is to say at the commencement of the underpass, and it would appear from the photograph at some height.

6 While there was a light just before the commencement of the underpass, the evidence points to the underpass itself being badly illuminated.

7 When asked by the police “Can you tell me what happened?” The appellant said, “I was at the traffic lights on Balmoral Street. I drove through when the lights went green. I was in the left land to turn left at lights on Richmond Road. I was driving. I didn’t see anything. By the time I saw the car I tried to change lanes to the middle lane. I wasn’t able to, because there was another vehicle beside me. I then couldn’t stop; it was too late. I then hit the back of the car, which was parked in front of me, I tried to stop but my brakes didn’t stop me. The car was parked with no lights on and had no people in it.”

8 The appellant’s car hit the parked car causing it to move about three metres forward and sideways partially into the middle lane.

9 The appellant told the police he was driving at 50 kilometres per hour when he hit the parked car. He said at the time he was not injured. It turned out that the parked car had been stolen and parked under the railway bridge by the thief.

First instance judgment

10 The trial judge did not find the appellant to be a reliable witness. The specific instances of that are open to question, but it is not necessary to express any concluded view on those matters.

11 The trial judge concluded that the appellant had not satisfied the onus upon him of demonstrating negligence. The trial judge, however, made no determination as to whether there had been negligence in the parking of the car in the underpass.

12 The trial judge found that a reasonably prudent driver in those conditions of darkness and rain with windscreen wipers on should not have been travelling at a speed greater than he could stop within his headlights. What precisely that meant was not entirely clear but it may be that the trial judge was simply stating that in the conditions, he should have been driving at a speed which would have enabled him to stop the vehicle at whatever distance the parked car would have been when first visible within his headlights.

DISPOSITION

13 In my view the trial judge failed to deal with the undoubted negligence of the respondent. To leave a car parked within an underpass, itself dark and with no reflector and in an area where not only was parking prohibited, but where one would not reasonably expect a car to be parked, was indubitably negligent. The trial judge did not direct his mind to that matter. To the extent he considered questions of negligence he did so only in relation to the appellant, doing so principally by reference to the appellant’s speed at the time. However, it could not be said that the appellant was travelling at excessive speed on the evidence before the trial judge.

14 As the police officers report makes clear, the slope would have interfered with the appellant’s capacity to see a parked car before he got within the underpass. To the extent that might be controverted, it went to contributory negligence. The onus so far as contributory negligence was concerned was clearly upon the respondent. No evidence was advanced by the respondent to controvert the inference that could fairly be drawn that the parked car would not have been visible before the appellant entered the tunnel.

15 Upon entering the tunnel the evidence points to the appellant having approximately 15 metres within which to react. In those circumstances, it is difficult to see what else the appellant could have done than attempt to brake, given that he observed another car on his right hand lane that would have precluded him from changing lanes.

16 It is no answer to that contention for the respondent to argue that the appellant should have been either travelling at a lower speed or have seen the parked vehicle earlier. The latter proposition is not supported by any evidence, and the indications as I have said are to the contrary. The former proposition is incompatible with accepting that it could not have expected to have anticipated a parked car in an underpass and have adjusted his speed accordingly. Whether in fact he was travelling at 50 kilometres an hour, or a little faster is therefore not the point.

17 Accordingly, I would conclude that the trial judge should have found negligence on the part of the respondent and should have, but failed to, then directed his mind only to the question of contributory negligence. Given the state of the evidence as I have summarised it, there was insufficient to make a finding of contributory negligence.

18 It has been accepted by both parties that because the trial judge failed to deal with damages, a re-trial on damages in the District Court must follow. I reiterate what has been said in previous Court of Appeal decisions, that the trial judge even though rejecting a case on liability, should ordinarily at least, deal with damages.

19 Counsel for the respondent in the end conceded that a finding of negligence was inevitable.

OVERALL RESULT AND ORDERS

20 I propose orders as follows, noting that the cost provisions applicable in the District Court may have a bearing on any costs ultimately awarded.

(1) Appeal allowed.

(2) Set aside the judgment of Hughes DCJ, and the verdict in favour of the respondent.

(3) Verdict and judgment for the appellant on the issue of liability.

(4) That there be a new trial limited to the issue of damages.

(5) Respondent to pay the costs of the appeal, but to have a certificate under the Suitors Fund Act if otherwise qualified.

(6) The costs of the first trial to abide the costs of the second trial.

21 BEAZLEY JA: I agree.

22 TOBIAS JA: I also agree, but add the following short observations. As Santow JA has pointed out, the primary judge in paragraph 20 of his judgment simply asked himself the wrong question. He directed his mind to the question of whether the plaintiff was negligent, rather than to the antecedent question as to whether the defendant was negligent. His Honour held in paragraphs 23 and 27 that the plaintiff ought to have been travelling at a speed no greater than that which would have enabled him to stop within the limit of his headlights. He further held in paragraphs 28 and 29 that the plaintiff failed to keep a proper lookout so as to have been able to stop to avoid a collision.

23 These were findings that appeared to establish from his Honour’s point of view that the plaintiff was guilty of contributory negligence. As Santow JA has observed, those findings should be set aside as they have no basis in the evidence, and the defendant was not able to discharge the onus of establishing the facts necessary to support those findings.

24 But one matter that does concern me is his Honour’s statement in paragraph 24 of his judgment that he took into account the plaintiff’s reliability as a witness. He then said this: “Almost on every relevant fact that had to be determined in the case, the plaintiff was less than frank with the court”. His Honour then proceeded in the same paragraph and in paragraph 25 to mention a number of matters concluding that “in those circumstances I could not find him [the plaintiff] to be a reliable witness”.

25 He followed this, in paragraph 26, by asserting that he was not satisfied that he could rely on the plaintiff’s evidence “as to his speed either”.

26 Whether or not his Honour’s findings as to the reliability of the plaintiff will be repeated in relation to the issue of damages is a matter which will be determined afresh on the remittal to the District Court for a new trial limited to that issue.

27 The only challenge to the plaintiff’s evidence before the primary judge in relation to the issue of liability and, in particular, that of contributory negligence was confined to that to be found at Vol 2 of the Black Book at pages 202J to 204M and 206F to R. In my respectful opinion there is absolutely nothing in either the nature of the questions asked or in the answers that were given that could possibly support a finding that in relation to any relevant fact concerning the matters referred to in that part of the plaintiff’s evidence he had been less than frank with the court.

28 It seems to me the nature of the questions asked and the answers that were provided were not only frank but made total sense and were in a number of respects supported by the independent evidence of the police officer who attended the scene of the accident. There was no basis in my respectful opinion for his Honour to make such a broad statement as that to which I have referred insofar as he intended it to relate to the plaintiff’s evidence concerning the circumstances in which the accident occurred. For those additional reasons I agree with the orders proposed by Santow JA.

29 BEAZLEY JA: The orders of the court are those proposed by Santow J.

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