Evans v Lyle Grant Bell as Executor of the Estate of Robin Frank Bell (Dec)
[2000] WASCA 395
•15 DECEMBER 2000
EVANS -v- LYLE GRANT BELL as Executor of the Estate of ROBIN FRANK BELL (DEC) [2000] WASCA 395
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 395 | |
| THE FULL COURT (WA) | 15/12/2000 | ||
| Case No: | FUL:6/2000 | 15 NOVEMBER 2000 | |
| Coram: | MALCOLM CJ IPP J WALLWORK J | 15/11/00 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | SHANE EVANS LYLE GRANT BELL as Executor of the Estate of ROBIN FRANK BELL (DEC) |
Catchwords: | Torts Negligence Road accident cases Contradictory versions of events Independent witness Turns on own facts Evidence Damages Evidence of accountant who did not prepare books of account Hearsay Failure to object Turns on own facts |
Legislation: | Nil |
Case References: | Abalos v Australian Postal Commission (1990) 171 CLR 167 Bloemen v Commonwealth (1975) 49 ALJR 219 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53 Dairy Farmers Co-Operative Ltd v Azar (1990) 170 CLR 293 Devries v Australian National Railways Commission (1993) 177 CLR 472 Lloyd v Faraone [1989] WAR 154 O'Brien v Komesaroff (1982) 150 CLR 310 Pallot v Harrison, unreported; SCt of WA; Library No 950261; 12 May 1995 Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1978) 139 CLR 231 Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Taylor v Johnson (1983) 151 CLR 422 Warren v Coombes (1979) 142 CLR 531 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : EVANS -v- LYLE GRANT BELL as Executor of the Estate of ROBIN FRANK BELL (DEC) [2000] WASCA 395 CORAM : MALCOLM CJ
- IPP J
WALLWORK J
DELIVERED : 15 NOVEMBER 2000
PUBLISHED : 15 DECEMBER 2000 FILE NO/S : FUL 6 of 2000 BETWEEN : SHANE EVANS
- Appellant (Defendant)
AND
LYLE GRANT BELL as Executor of the Estate of ROBIN FRANK BELL (DEC)
Respondent (Plaintiff)
Catchwords:
Torts - Negligence - Road accident cases - Contradictory versions of events - Independent witness - Turns on own facts
Evidence - Damages - Evidence of accountant who did not prepare books of account - Hearsay - Failure to object - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Appeal dismissed
Representation:
Counsel:
Appellant (Defendant) : Mr R W Richardson
Respondent (Plaintiff) : Mr G Porter
Solicitors:
Appellant (Defendant) : A C Thorpe & Co
Respondent (Plaintiff) : Talbot & Olivier
Case(s) referred to in judgment(s):
Abalos v Australian Postal Commission (1990) 171 CLR 167
Case(s) also cited:
Bloemen v Commonwealth (1975) 49 ALJR 219
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53
Dairy Farmers Co-Operative Ltd v Azar (1990) 170 CLR 293
Devries v Australian National Railways Commission (1993) 177 CLR 472
Lloyd v Faraone [1989] WAR 154
O'Brien v Komesaroff (1982) 150 CLR 310
Pallot v Harrison, unreported; SCt of WA; Library No 950261; 12 May 1995
Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1978) 139 CLR 231
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Taylor v Johnson (1983) 151 CLR 422
Warren v Coombes (1979) 142 CLR 531
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1 MALCOLM CJ: At the conclusion of the argument of this appeal the Court was of the unanimous opinion that the appeal should be dismissed and so ordered. The appellant was ordered to pay the respondent's costs of the appeal. It was then indicated that the reasons for making those orders would be published later. I have had the advantage of reading in draft the reasons to be published by Ipp J. I agree with those reasons and there is nothing I wish to add.
2 IPP J: On 3 July 1997, in William Street, Beckenham, a 65-tonne truck hired by Robin Frank Bell in terms of a hire purchase agreement and driven by Neil Brian Sharpley collided with a truck (a semi-tipper) driven by the appellant. Bell has since died and the respondent is the executor of his estate. The respondent brought proceedings in the District Court alleging that the collision was caused by the negligence of the appellant and claiming damages alleged to have been sustained, in consequence, by Bell's estate. The learned trial Judge found that the collision was indeed caused by the negligent driving of the appellant. He determined the damages suffered by Bell's estate as being $77,434.77 and awarded judgment in that sum, together with interest, against the appellant.
3 The appellant appealed against this decision, both in regard to the finding that he was negligent and in regard to the quantum of damages. At the conclusion of argument this Court unanimously dismissed the appeal and indicated that it would give its reasons for this decision at a later stage. I set out below my reasons for joining in that decision.
4 I turn firstly to the issue of negligence. Essentially, the trial Judge was faced with two opposing versions as to how the collision occurred. While both parties accepted that, at the relevant time, both trucks were being driven in a northerly direction along William Street, they differed in virtually all other respects as to the way in which the collision occurred.
5 The respondent pleaded in the statement of claim that William Street "is a marked road having two north-bound lanes and two south-bound lanes". The appellant, oddly, stated in his defence that he did "not know and cannot plead" to these allegations. It is implicit, however, in the findings of the learned Judge that there were two north-bound lanes in William Street (and there was clear evidence to that effect).
6 In the statement of claim, the respondent pleaded his version of the collision as follows:
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- "As the truck driven by Sharpley approached the rear of the truck driven by the [appellant], the truck driven by the [appellant] suddenly and without warning veered to the right into the lane in which the truck driven by Sharpley was travelling and collided with the truck causing damage. In consequence of the collision the truck was forced into the south-bound side of William Street."
7 The appellant, on the other hand, pleaded that he was driving his truck in an northerly direction along William Street "in the kerbside lane", and averred:
"[The appellant] had just left a set of traffic lights and the traffic was fairly heavy and moving slowing. His speed ranged between 35 to 50 kmph. A vehicle travelling ahead of him indicated to turn left into a side street. The [appellant] began to slow down using the foot brake. The vehicle had turned the corner and the [appellant] took his foot of[f - sic] the brake and was about to accelerate when he felt an impact from the rear. He looked into his right side mirror and saw that a truck had run into the back of him with half its cab coming into contact with his vehicle … [When he] checked his vehicle for damage [he] found that the right-hand rear outer tyre had blown out. There was no other damage to his trailer."
8 The appellant's version so pleaded was substantially repeated by counsel who appeared for the appellant at the trial when he put the appellant's case to Sharpley in cross-examination as follows:
"Isn't it the case, Mr Sharpley, that you were following behind Mr Evans, then Mr Evans slowed down. You couldn't slow down as the same speed as him and you had nowhere to go; so even with your brakes on, you had to veer yourself into the right-hand lane to avoid a collision and you collected the corner of your cab on the back corner of his truck."
- Sharpley answered this question, "No. I was already in the centre lane".
9 Sharpley's reply nicely poses the difference between the two versions. According to the appellant, he was travelling in the kerbside lane with the respondent's truck driven by Sharpley directly behind him (also in the kerbside lane), and with a smaller vehicle travelling in the same direction directly in front of him. As the vehicle in front turned left, the appellant slowed down. Sharpley was travelling too fast or could not
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- brake in time, swerved to the right but could not avoid a collision and the corner of the cab of his truck struck the right-hand rear corner of the appellant's truck. Sharpley, on the other hand, denied that at the relevant time he was travelling in the same lane as the appellant. He asserted that he was in the next and outer lane, described as the centre lane. He was alongside the appellant's truck, gradually overtaking it, when it suddenly swerved to the right, thereby causing a collision.
10 It can be seen, therefore, that a finding as to whether the respondent's vehicle was travelling behind the appellant's vehicle in the same lane, or whether the respondent's vehicle was travelling in the centre lane, alongside the appellant's vehicle, was crucial to the learned trial Judge's decision as to the merits of the case.
11 At the trial, the respondent called Mr L A Howarth, who was the driver of the vehicle that was travelling in front of the appellant's truck. Howarth told a revealing story. He said that he was travelling northwards along William Street, in the kerbside lane, "in front of both trucks". As he approached an intersecting street called Luyer Street, where he intended to turn left, he noticed, in his words, that "I had a truck directly behind me and there was a truck on the inside of that one in the middle lane". Howarth noticed that the truck directly behind him was "very close" to him, namely within five to six metres. Although Howarth had indicated about 80 to 100 metres before Luyer Street that he intended to turn left, the truck directly behind him had not slowed down. Howarth said that he used to drive trucks "as a living" and observed that "being in a small vehicle I'm not about to be run over by one". Hence, he turned into Luyer Street at speed. As he did so, he heard a bang. He looked in his mirror and saw that a collision had occurred.
12 In the course of his evidence in chief, Howarth affirmed that the position of the two trucks when he saw them as he was driving along William Street was as follows:
"The position of the first truck, which was the truck behind myself, was, like I say, directly behind me. The other truck was alongside of him or just back from him on William Street."
- It is apparent from Howarth's evidence that the appellant's truck was the truck directly behind him and the respondent's truck was the truck in the middle lane.
13 In cross-examination Howarth was asked "when you turned the corner you say prior to that you checked your rear vision mirror". He
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- replied in the affirmative and said, "I've done so, I've got a truck behind me and I've got a truck in the left-hand - in the right-hand lane, coming up alongside". He was asked "[a]re you sure of that, that second truck?" and he replied in the affirmative. It was put to him that the second truck was not in the middle lane and he replied "I know when I turned that corner where those vehicles were". In re-examination Mr Howarth repeated, "[l]ike I said, there's a vehicle behind me, another truck in the centre lane …".
14 Howarth was cross-examined about a statement he made to the respondent's insurer after the collision had occurred in which he said:
"I intended to turn left down the side street when I observed two trucks behind me, one in the left-hand lane directly behind my vehicle, and the other in the right-hand lane further back."
- He affirmed what was said in this statement.
15 In the circumstances, Howarth's evidence was powerful confirmation of the respondent's version and directly contradicted the appellant's version in crucial respects. It is not surprising that he was extensively cross-examined, but his testimony remained unshaken and was accepted by the learned Judge. His Honour made the following findings based to a significant degree on Howarth's evidence [23]:
"2. [The respondent's] truck was in the centre lane and overtaking the [appellant's] truck immediately prior to the impact. Sharpley's evidence was confirmed by the evidence of the independent witness Howarth.
3. The [appellant] was travelling close proximity immediately behind Howarth's vehicle. Howarth indicated 80 to 100 m prior to Luyer Avenue his intention to turn left. Notwithstanding his indication the [appellant] continued to travel in close proximity to the rear of Howarth's vehicle. This caused Howarth to take the corner faster than he normally would. I accept Howarth's evidence on this issue. … To the extent that [the appellant's] evidence conflicts with that of Howarth I prefer the evidence of Howarth."
- No criticism could be levelled against these findings. They were findings of primary fact and basically depended on his Honour's view of the credibility of the respective witnesses.
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16 It is in the light of the foregoing that the grounds of appeal relating the finding of negligence have to be seen. These grounds asserted, in effect, that the learned trial Judge erred in finding that:
(a) The appellant moved his vehicle into the path of the truck being driven by Sharpley.
(b) The respondent's truck was overtaking the appellant's truck immediately prior to the impact.
(c) Sharpley's evidence was confirmed by the evidence of Howarth.
- (d) The right front left of the respondent's truck "was impacted upon" by the right rear side of the appellant's trailer towards the tailgate.
17 The first three grounds are, in effect, answered by what I have already set out. Nevertheless, I shall deal with particular arguments advanced by counsel for the appellant.
18 Counsel for the appellant submitted that there was "no evidence" from Sharpley "that he saw any part of the [appellant's] vehicle cross into his lane" and for that reason no finding should have been made that the appellant veered to the right.
19 Irrespective of whether Sharpley testified that he saw the appellant's vehicle veer to the right, there was a great deal of evidence from him that, immediately prior to the collision, the appellant's truck was in the kerbside lane, the respondent's truck was in the centre lane, and the appellant moved to the right, out of his lane, and struck the respondent's truck. I shall refer to examples of evidence of this kind.
20 In his evidence-in-chief, Sharpley stated:
"I was sitting in the centre lane and as I was coming up towards Welshpool Road there, I went to overtake this other truck and I got to the cab, at least a third of the way alongside of his trailer and the next minute he veered off into my lane and I just connected with him, and it wrote all the left-hand side of the cab off, ripped all the air lines out, ripped the power steering lines out, the lot, and I ended up on the wrong side of the road."
- And again in evidence-in-chief:
"He was on the left-hand lane and, as I was going to overtake, I was on the centre lane and it was just past the shops on the right-hand side when the accident occurred. My cab was at
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- least a third of the way along his trailer, or a third of the cab past the back of his trailer and he veered off into my lane and I collected him. "
- And later:
"I was alongside his trailer when he come across in front of me."
In cross-examination, counsel for the appellant on several occasions put to Sharpley that, as he was about to overtake the truck on his left, it veered into his lane. Sharpley agreed with the propositions so put. Moreover, Sharpley, on more than one occasion, in response to questions asked of him, repeated that the appellant's truck had veered or swerved to the right into the respondent's truck. This was repeated in re-examination.
21 In the circumstances, there was ample evidence on which the learned trial Judge could make a finding that the appellant was driving his truck in the kerbside lane when he swerved to his right and collided with the respondent's truck.
22 Counsel for the appellant submitted further that Sharpley had admitted that he had not seen the appellant's truck veer to the right. This submission was based on the following exchange:
"You saw the truck veering didn't you?---No, I didn't. All I heard was the bang of the impact."
- Immediately after the passage referred to by counsel, however, Sharpley clarified this remark as follows:
So are you saying that you didn't see a semi - listen to my question. Are you saying that you didn't see a semitrailer that you were overtaking move into your lane?---Not the back of it, no.
Did you see the front of it move?---I seen the front come over slightly and that was it.
Did that alert you that it was likely that the trailer would follow?---Yes, I does.
All right, so you saw the prime mover moving into your lane. You knew there was a trailer attached to it?---Yes."
(Page 9)
23 In this passage, Sharpley stated that he did not see the back of the appellant's truck (that is, the trailer) move into his lane, but only saw the front (that is, the cab) "come over". This, in my view, is the explanation for his earlier evidence that he did not see the truck veer. That counsel for the appellant at the trial so understood Sharpley's testimony is apparent from several questions he put to Sharpley thereafter, such as, "[s]o you saw the prime mover moving into your lane?" and "[y]ou say that you saw that prime mover veer into your lane and you knew that the trailer would have had to have followed it". Additionally, as I have pointed out, in the course of cross-examination, counsel several times put to Sharpley that his case was that the appellant's truck had veered into his path. Sharpley was not again cross-examined on the basis that he had not seen the appellant's truck move to the right.
24 The learned Judge's finding on this issue was in the following terms [23]:
"Without being aware of the presence of any vehicle which may have been alongside or immediately to the rear but in the centre lane the [appellant] moved his vehicle into the path of the truck being driven by Sharpley. I accept without reservation the evidence of Sharpley on this point."
- There was ample evidence that justified these findings and it cannot be said that his Honour erred in any respect in making them.
25 Counsel for the appellant referred to a statement Sharpley made to the police shortly after the accident in which he made no mention of the appellant's truck veering or cutting across in front of him. Counsel submitted that, in the circumstances, the learned trial Judge should not have accepted Sharpley's version given in evidence as it was inconsistent with his police statement. In the police statement Sharpley said:
"… I was travelling north on William Street … in the right-hand lane. I was about to overtake a Kenworth semi-tipper which was travelling north in the left-hand lane when the front of my truck came in contact with the rear right-hand side of the Kenworth's trailer. This forced my truck onto the right-hand side of the road facing oncoming traffic. The Kenworth truck in the left-hand lane continued on …"
- Counsel for the appellant pointed out that in the police statement Sharpley made no mention of the appellant's truck veering to the right. While that is true, Sharpley did say therein that he was travelling "in the right-hand
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- lane" and the appellant's truck was travelling "in the left-hand lane". It is implicit in Sharpley's police statement that the collision was caused by the appellant's truck swerving to the right. I do not accept that what was said in the police statement precluded the learned Judge from believing Sharpley's sworn testimony given in court.
26 In his evidence, Sharpley said that he was "about to overtake" the appellant's vehicle and did not say that he was in fact overtaking it. Counsel for the appellant submitted that this indicated that the collision occurred while the respondent's truck was behind the appellant's truck, as the appellant testified. The phrase "about to overtake" is, however, ambiguous and is perfectly apt to describe the situation described by Sharpley, namely that he was moving up on the right of the appellant's truck and his cab "was at least a third of the way along[side] his trailer" when the collision occurred. In my view, this argument does not assist the appellant.
27 Counsel for the appellant argued that Howarth's evidence was not materially inconsistent with that of the appellant, and the learned Judge was wrong in holding that Howarth supported Sharpley. That submission, however, was without substance. Howarth stated, unambiguously, that immediately before turning left into Luyer Street he looked in his rear view mirror and saw the appellant's truck in the kerbside lane and the respondent's truck in the middle lane. The collision had not yet occurred. That testimony is fundamentally inconsistent with the appellant's evidence that immediately prior to the collision the respondent's truck was travelling directly behind his truck. Moreover, Howarth's evidence that the appellant had not slowed down, despite the fact that he, Howarth, had for at least 80 metres signalled his intention to turn left, is inconsistent with the way in which the appellant explained how the collision occurred.
28 Counsel for the appellant sought to base an argument on the damage sustained in the collision by the two vehicles. He submitted that the damage to the respondent's truck appeared to have been caused by a collision with a sharp vertical object and "not a sideways scraping contact". He argued that, on Sharpley's version, the damage to the respondent's vehicle should have been consistent only with a glancing blow and not a sharp-edged impact. He also submitted that the only damage to the appellant's vehicle, being to the right rear tyre, was inconsistent with Sharpley's version. It is notoriously difficult, however, to draw firm conclusions from the nature of damage sustained by motor vehicles in collisions and in my opinion the learned Judge was perfectly entitled to place more reliance on the oral testimony of Sharpley and
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- Howarth (which he accepted), rather than on inferences drawn from the nature of the damage (particularly where there was no expert testimony that dealt with the issue).
29 There is nothing in the material before this Court that suggests that the trial Judge failed to use or misused his advantage in seeing the witnesses. It has not been shown that his Honour was wrong in any respect: Abalos v Australian Postal Commission (1990) 171 CLR 167.
30 As a further ground of appeal the appellant argued that "the learned trial Judge failed to critically examine the evidence on the critical issue as to the location of the impact and, in particular, failed to critically examine the evidence of Sharpley or the [appellant]".
31 It is true that there was little analysis of the evidentiary material in the learned Judge's reasons, but that is because his Honour was required to resolve what was a simple question of credibility. Essentially, it was a choice between the two versions. The learned Judge preferred the evidence of Howarth, the independent witness, and said so. In essence, that was the end of the matter. The acceptance of Howarth's evidence made it inevitable that Sharpley's version would be believed and that of the appellant rejected. The inference to be drawn from his Honour's reasons is that his decision was based solely on his view of the truthfulness and reliability of the respective witnesses formed by reference to the way they gave their evidence. In my view, having regard to the nature of the case, this approach was permissible. For that reason I considered that this ground should not be upheld.
32 As regards the appeal in respect of the quantum of damages, the sole ground of appeal was that the learned Judge erred "in giving weight to the evidence of the respondent's (plaintiff's) witness, John Allen Stott when there was no admissible evidence as to the origin of the figures relied upon by Stott".
33 Stott was an accountant who gave evidence as to the loss suffered by the respondent as a result of the appellant's negligence. He based his testimony on the respondent's books of account. It was submitted on the appellant's behalf that the books of account on which Stott relied constituted hearsay evidence and for that reason his evidence should not have been admitted.
34 At the trial, counsel for the appellant objected to Stott giving evidence as an expert as there had been no order for expert evidence. The learned Judge then pointed out that Stott was not giving expert evidence,
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- rather he was testifying "as a member or employee of the firm of accountants who kept the books of or did the tax returns at least for the deceased". This was accepted by counsel.
35 Counsel then raised another objection to the effect that the books of account had not been discovered. He asked for "a brief adjournment" so that he could "examine the file". No objection on the grounds of hearsay was made. Counsel then indicated to the learned Judge that a number of issues arose from Stott's testimony but, for him "to be able to meaningfully reply any further", he "would need to be able to examine the file that this gentleman has".
36 The learned Judge proceeded to comment that Stott "could give evidence from the books" regarding "the income-producing assets", and the following exchange took place:
"THORPE, MR: He could say that's what the books say, but the witness himself has said he doesn't know who prepared the books. He wasn't given cheque butts and without that sort of basis and foundation this witness's evidence is he started work on this file in June last year - 10 months, 11 months after the accident.
GROVES DCJ: Yes, although he does have the cash book details and he has checked the information there against the bank statements and presumably they reconcile.
THORPE, MR: Yes. Well, I think your Honour - - -
GROVES DCJ: That would seem to me to give a basis for this witness to be able to give that evidence - what I would describe as the real evidence. The next stage, then, as to projecting loss of income - I'm not sure how the witness might proceed with that evidence.
THORPE, MR: I guess, then, your Honour, I would ask for a brief adjournment in order to be able to examine the file - - -
GROVES DCJ: Yes.
THORPE, MR: - - - since there were documents that - given the evidence - - -
GROVES DCJ: They're not being discovered - yes.
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- THORPE, MR: - - - not being discovered in any way."
- The adjournment sought was granted and, when court resumed, counsel said:
"Your Honour, I am grateful for the benefit of looking at those papers. I don't have any objection to the evidence now being given, although I will make some observations about the weight that should be given to them subsequently."
38 At no time did counsel for the appellant object to Stott's evidence on the grounds of hearsay. The comments by the learned Judge were made after counsel for the appellant conceded that Stott "could say that's what the books say". The purpose of the adjournment was to enable counsel for the appellant to consider his position. When, after the adjournment, counsel said "I don't have any objection to the evidence now being given", any question as to the admissibility of Stott's evidence fell away.
39 No objection to Stott's evidence on the grounds of hearsay was made at the trial and, for that reason, the learned Judge made no ruling in that regard. Moreover, in the course of the trial, counsel for the appellant accepted that his evidence should be admitted. In the circumstances, I considered that it was not open for the appellant to argue that "there was no admissible evidence as to the origin of the figures relied upon by Stott". This disposed of the ground of appeal relating to the evidence of Stott.
40 WALLWORK J: I agree with the reasons for judgment of Ipp J and to the conclusions which have been reached by his Honour.
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