Gui v Weston
[2013] VSCA 364
•13 December 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2012 0233
| Jiang Hong Gui | |
| Appellant | |
| v | |
| David Glyn Weston | Respondent |
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JUDGES: | TATE, WHELAN and SANTAMARIA JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 October 2013 | |
DATE OF JUDGMENT: | 13 December 2013 | |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 364 | |
JUDGMENT APPEALED FROM: | Gui v Weston (Unreported, County Court of Victoria, Judge Morrish, 5–7 November 2012) | |
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PERSONAL INJURY – Transport accident – Collision between motor vehicle and pedestrian crossing a road at night against red pedestrian light – Negligence – Contributory negligence – Apportionment – Contest between witnesses about the state of the traffic lights – Whether direct or inferential evidence – Whether trial judge misdirected the jury about inferences – Whether examples of reasoning given to the jury properly distinguished between direct evidence, inferential reasoning and speculation – Failure to take exception to direction at trial – Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33, Morawski v State RailAuthority (1988) 14 NSWLR 374 and Brotherhood of St Laurence v McCabe [2013] VSCA 257 referred to – Use of humorous example – Whether trial judge erred in redirection about alleged momentary inattention by driver – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R W McGarvie SC with Mr S R McCredie | Henry Carus & Associates |
| For the Respondent | Mr J Ruskin QC with Ms M Norton | Solicitors for the Transport Accident Commission |
tate JA:
Following an 11 day jury trial of a common law claim for damages for personal injury arising out of a motor vehicle accident, the jury delivered its verdict that the defendant, Mr Weston, was negligent and his negligence was a cause of the injuries, loss and damage suffered by the plaintiff, Mr Gui. The jury also found that there was contributory negligence on the part of Mr Gui. It apportioned responsibility on the basis that Mr Gui’s share of the responsibility was 85 per cent and Mr Weston’s was 15 per cent. The appeal brought by Mr Gui concerns only that part of the jury verdict relating to apportionment.
Collision between motor vehicle and pedestrian
On the night of Thursday 11 November 2004, Mr Gui was driving back to his home from a friend’s house when the car he was driving collided with the rear of a taxi in Springvale Road, to the north of the intersection with Waverley Road.
After the accident with the taxi, Mr Gui crossed Springvale Road north of the Waverley Road intersection, parked his car, and went to ring for a tow truck at a pizza shop on the western side of the road. He was unable to use a phone at the pizza shop and went to cross the road using the pedestrian crossing at the north side of the Springvale and Waverley Road intersection, crossing from west to east. Mr Gui was wearing a dark grey jacket and black trousers.
Mr Weston was driving to work at the Village Green Hotel, where he was due to start work at 10 pm for a four-hour shift. He intended to drive south along Springvale Road, beyond Waverley Road to the next main intersection, where Springvale Road intersects with Ferntree Gully Road. He intended to turn right into Ferntree Gully Road and then turn into the carpark behind his place of work.
At about 9.30 pm Mr Weston’s car collided with Mr Gui as he walked across the pedestrian crossing west to east at the Springvale Road and Waverley Road intersection (‘the collision’). It was night-time and raining. Street lighting was good. It was uncontested that the pedestrian traffic light applicable to Mr Gui was solid red at all times. The southward bound section of Springvale Road at the point where it crossed Waverley Road comprised four lanes: a right-hand turning lane (‘Lane 1’) and three additional lanes for traffic travelling straight (‘Lane 2’, ‘Lane 3’ and ‘Lane 4’, with Lane 4 being that furthest from the median strip in the centre of the road). Mr Weston’s vehicle was in Lane 2 when it struck Mr Gui, who was crossing the road against the lights.
Trial exhibit ‘H’ is a useful diagram of the Springvale Road and Waverley Road intersection:
Common law claim for damages for personal injury
Mr Gui brought proceedings in the County Court alleging that he suffered personal injury, loss and damage as a result of the collision which, he alleged, occurred because of Mr Weston’s negligence. The particulars of negligence included failing to keep a proper lookout, failing to apply brakes and failing to avoid the collision. Mr Weston admitted the collision, denied negligence and alleged contributory negligence, and did not admit the nature and extent of the injury.
(1) The evidence of the plaintiff, Mr Gui
At trial, Mr Gui gave evidence to the following effect: he was unable to recall the state of the pedestrian lights as he walked across the intersection. The fact that the pedestrian crossing light was red was inferred from the fact that Mr Gui did not push the button and, in the absence of evidence of any other pedestrians, the pedestrian crossing would not have gone into a green or flashing red phase without being manually triggered by Mr Gui. He walked quickly to the median strip separating the northbound and southbound traffic on Springvale Road and then hesitated. He observed a white car stationary in the right turning lane (Lane 1), and a white van stationary in Lane 4. Mr Gui then decided that he could ‘make a quick move to cross in front of [the white car in the right turning lane]’ and, accordingly, started to cross, walking quickly from the median strip to the eastern side of the intersection. As he was crossing he saw Mr Weston’s car in either Lane 2 or Lane 3 as it was accelerating towards him. He jumped to try and get out of the way and was struck on the left leg by the left front section of the vehicle. After the collision, he said that the white van in Lane 4 remained stationary; it did not start to move. Mr Gui could not recall being at risk of being run over by any vehicles in Lane 3.
(2) The evidence of the defendant, Mr Weston
Mr Weston gave evidence that he was, at the relevant time, in Lane 2. He was travelling south along Springvale Road with the headlights and wipers of his car operating. It was raining hard and really dark, although the intersection was well illuminated. Traffic on Springvale Road was reasonably heavy and he had to stop at the traffic lights some distance back from the intersection itself. After the lights changed, the traffic in front moved and Mr Weston reached the front row of traffic travelling south in the intersection of Lane 2 where he stopped, as the lights had turned red again. When he stopped at the intersection there were no cars in front of him in his lane, although there was traffic in the lanes to his left. He was unable to recall whether there was any traffic in the lane to his right, or whether he looked to the right at all. The traffic in each of the southbound lanes was banked back. Mr Weston saw vehicles going east and west in front of him, but did not see any pedestrians cross in front of him.
Mr Weston recalled that when the lights then turned green he started to move forward, accelerating in an ordinary way. He said he saw the green circle traffic light for traffic moving forward through the intersection only, and not a green arrow traffic light for right turning vehicles. Before he had gone any distance he saw a flash in front of the car and felt a slight bump on the left-hand front of the car and stopped the car instantly because he knew he had hit something. He did not see Mr Gui before the collision. When he got out of the car he saw Mr Gui in the middle of Lane 3. Mr Weston did not see or hear any vehicle in Lane 3 slam on its brakes. He did not disagree with Mr Gui’s evidence that the van in Lane 4 did not move prior to the collision.
(3) The evidence of an independent witness, Mrs Kesby
Mrs Kesby was a student nurse at the date of the collision. In a statement dated 11 November 2009, some five years after the collision, Mrs Kesby stated that she was in a car with her mother who was driving at the time. She said there were no other people in the car other than her and her mother. She was seated in the front passenger seat. They were travelling south on Springvale Road and were stationary at the Springvale and Waverley Road intersection, in the middle or furthest right lane going straight ahead. There were no other vehicles in front of them. Immediately or one lane over to the left another vehicle was stationary. She said that the weather was fine and the roads were dry. Traffic conditions heading south at the time were light to medium. Visibility was ‘ok’.
Mrs Kesby said in her statement that her mother’s car was stationary for a minute or two. The right turning light turned green. She did not recall whether vehicles started to make the right hand turn. At the same time the vehicle closest to the eastern kerb, also facing south, took off in a southerly direction going straight ahead against the red light. The vehicle had only travelled about one metre into the pedestrian crossing when suddenly she saw something thrown up onto the bonnet of the vehicle. She did not realise immediately that it was a pedestrian. The vehicle then came to a stop in the middle of the intersection.
When the lights turned green Mrs Kesby’s mother drove forwards and parked her car to block the path of traffic along Springvale Road. She put her hazard lights on. Mrs Kesby got out of the car to assist the pedestrian. She said that the driver of the vehicle that had collided with the pedestrian was walking back to the scene to provide assistance.
Mrs Kesby’s evidence to the jury at trial was in conflict with her statement in a number of significant respects. These included facts about her location at the intersection at the time of the accident, the weather conditions at the time, and her ability to see the traffic lights applicable to Mr Weston’s vehicle. These inconsistencies, and the trial judge’s directions in relation to them, provide the basis for Grounds 1, 2 and 3 of this appeal.
(4) The evidence of David Axup, traffic engineer
Mr Axup, a traffic engineer, gave evidence of the sequencing of the lights at the intersection. At the date of the collision the default position (phase A) for the traffic lights was green for straight-through traffic heading north-south on Springvale Road. Electromagnetic detectors built into the road detected the presence of traffic at the intersection. If traffic was coming and going in every direction, then after phase A the lights would go through a sequence of phases, depending upon the nature of the traffic entering the intersection. At the time of the collision, after the lights turned red for traffic entering the intersection from Waverley Road, the first phase for traffic in Springvale Road would be a green right-turn arrow enabling traffic travelling from the north to travel west, and traffic from the south to travel east. These green arrows would only be triggered if there were vehicles travelling in the respective turning lanes which activated the electromagnetic detectors. In this circumstance the lights for traffic travelling straight through the intersection would be red. If one or the other of the right turn arrows was not triggered then the arrows would remain red and there would be a green light for traffic travelling straight through the intersection from the other direction.[1]
[1]Summary of Proceedings, Facts and Issues [28].
The minimum time for the green arrows was six seconds, depending on the volume of traffic in the right-turning lane. The turn arrows would then turn yellow for three seconds, after which there would be a red light for all traffic for two seconds before the green light for traffic moving straight through the intersection would appear.
In cross-examination, Mr Axup accepted that one of the sequences of the traffic lights was a green arrow for vehicles travelling south and turning right to the west and a green circle for vehicles traveling south directly ahead, in which case there would be a red light for vehicles travelling north and a red arrow for vehicles trying to turn right to the east. This was one of the three possibilities which depended upon the sequence in which the various vehicles arrive at the intersection in the various lanes.[2]
[2]However, the evidence of Mr Weston was that he saw only one green light, a circle light and he did not also see an arrow. See [9] above.
At trial, no allegation of dishonesty was made against any witness.[3] Issues of credit in respect of the evidence given by all witnesses related only to accuracy of recall and honest mistake.
[3]Another witness, Senior Constable Dewey, also gave evidence. He had completed a form in relation to the collision but had limited recall.
The jury returned a verdict in favour of Mr Gui, finding that his injury, loss and damage had been caused by Mr Weston but that his damages should be reduced by 85% having regard to his own responsibility. Mr Gui’s pain and suffering damages were assessed at $250,000 and pecuniary loss damages were assessed at $232,276. Judgment was entered for Mr Gui in the sum of $65,122.93 together with damages in the nature of interest agreed at $4,575.
The appeal
Mr Gui relied on four grounds of appeal in his Notice of Appeal:
Ground 1: The trial judge misdirected the jury by instructing them that the evidence of Mrs Kesby as to the state of the traffic lights facing Mr Weston was based on an inference she drew.
Ground 2: The trial judge ought to have directed the jury that there was a contest between the direct evidence of Mr Weston, on the one hand, and Mrs Kesby, on the other hand, as to the state of the traffic lights facing Mr Weston and that the direct evidence of Mrs Kesby was supported by a number of inferences, including:
(a) the evidence of Mr Gui and Mrs Kesby of the presence of a vehicle in the right turn lane for vehicles heading south in Springvale Road;
(b) the evidence of Mrs Kesby of the presence of a vehicle turning right from the right turn lane for vehicles heading north in Springvale Road;
(c) the heaviness of the traffic at the intersection heading south at the time of the collision making it more probable that there was a vehicle in the right turning lane heading south;
(d) the evidence of Mr Gui and Mr Weston that Mr Gui was not at risk of being struck by any vehicle heading south in the lane adjacent to Mr Weston’s vehicle after he landed on the roadway in front of that lane after the collision;
(e) Mr Gui’s evidence that the vehicle in the eastern most lane heading south remained at the intersection after the collision;
(f) if the jury should so find, Mr Weston’s inattention at the time, evidenced by his failure to see Mr Gui prior to the collision.
Ground 3: The trial judge misdirected the jury as to the danger of relying on inferential evidence in the circumstances of this trial where the contest between witnesses which the jury needed to resolve was a contest as to their direct evidence.
Ground 4: The trial judge misdirected the jury by erroneously instructing them that Mr Gui’s claim that Mr Weston was negligent was not based on an assertion that Mr Weston was merely inattentive when it was Mr Gui’s claim that:
(a) Mr Weston had been momentarily inattentive in failing to see Mr Gui before colliding with him, and this inattention was demonstrative of negligence in the circumstances; and
(b) Mr Weston had been momentarily inattentive in mistaking the green arrow for turning vehicles and thinking it was a green circle for vehicles heading south, and this inattention was demonstrative of negligence in the circumstances.
Ground 1 – Direction that Mrs Kesby’s evidence was based on an inference
A key factual dispute at trial was the state of the traffic lights applicable to vehicles travelling in a southerly direction along Springvale Road at the time of the collision. The two witnesses who gave evidence on this matter were Mrs Kesby and Mr Weston.
Mr Weston gave evidence that the light had turned to green. The light was the solid green circle.
The judge characterised Mrs Kesby’s evidence on the colour of the traffic lights at the time of the collision as being based on an inference. Her Honour said:
[Y]ou are asked to infer that Mrs Kesby at the very least saw the glow of the green arrow. She drew an inference that there was a green arrow and a red light. She drew that inference because of the colours and the position of the glowing of the respective lamps that she saw.
Mr Gui challenged this characterisation on the ground that Mrs Kesby gave unequivocal evidence of her actual observation of a green arrow and a red circle. He contended that the evidence given by Mrs Kesby on the issue was direct evidence, and not inferential evidence.
In her statement of November 2009, as noted, Mrs Kesby maintained that she had seen the traffic lights applicable to Mr Weston’s vehicle at the time of the collision and that they consisted of a green right-turning arrow, with a red light for traffic moving straight ahead. However, as foreshadowed above,[4] the evidence she gave under cross-examination differed markedly from her statement in a number of significant respects including the perspective from which she made her observations of the traffic lights.
[4]See [13] above.
In her statement Mrs Kesby said that the car in which she and her mother were travelling was driving along Springvale Road heading south. This was the same direction as Mr Weston and on this account she would have been observing the traffic lights from the same perspective as Mr Weston. She also said that the weather had been fine and dry. By contrast, in her evidence at trial she said that the car in which she was travelling had not been heading south along Springvale Road but had been travelling along Waverley Road, facing east, and that it had been raining. In cross-examination the following exchange took place:
COUNSEL FOR WESTON: Now, you’ve indicated to the jury a few moments ago that you, when you arrived at the intersection as a front seat passenger in your mother’s vehicle, came along Waverley Road. Correct?
KESBY: Correct.
COUNSEL: So in the diagram that you see behind you on the screen, you’ve arrived, as it were, from the left-hand side and got to the intersection whereupon your vehicle stopped?
KESBY: Correct.
COUNSEL: You say that in relation – you’re in one of the eastbound lanes in Waverley Road?
KESBY: Correct.
COUNSEL: It’s from that position you tell the jury that you witnessed the accident?
KESBY: Correct.
COUNSEL: Or at least witnessed a person being on the bonnet of a car?
KESBY: Correct.
COUNSEL: Because I think what you say is, you didn’t actually see the point of collision, you see something immediately after the point of collision effectively?
KESBY: Yes.
Counsel then read details from Mrs Kesby’s statement, to the effect that she had said she had been travelling down Springvale Road when she saw the collision; that the vehicle which had struck Mr Gui had been in the lane closest to the eastern curb; and that the right-turning green arrow had come on just before this occurred, with the traffic light for vehicles travelling straight through the intersection remaining red. The cross-examination continued:
COUNSEL: That is, you will agree, completely different from the evidence that you have given to the members of the jury this morning?
KESBY: Partially.
COUNSEL: Well, your vehicle is in a different road going in a different direction. Correct?
KESBY: Correct.
COUNSEL: It’s in a different lane?
KESBY: Correct.
COUNSEL: Your position, obviously, in the intersection is different as well?
KESBY: Correct.
…
COUNSEL: It’s clearly the case, is it not, that if you were in that position, that is first car at the lights in Springvale Road facing south, you would have a clear view of the light that’s in the exhibit which is the photograph looking south that you’ve already referred to?
KESBY: Yes.
COUNSEL: Because you’re looking straight at it in that position, aren’t you?
KESBY: Correct.
COUNSEL: What about, [referring to Mrs Kesby’s statement] ‘The weather was fine and the roads were dry’?
KESBY: That I got incorrect on the first statement.
COUNSEL: Well, yes, I suppose as a master of understatement it was incorrect, because in fact it was wet and the roads were wet and it was belting down with rain at the time?
KESBY: Which has since returned to my memory.
COUNSEL: So what other differences do you recall in your first statement compared to your evidence today?
KESBY: Nothing that I can remember off the top of my head.
COUNSEL: What about this bit? ‘The right-turning light turned green. I do not recall whether vehicles started to make the right-hand turn’?
KESBY: I believe it had, but I don’t remember a hundred per cent.
The question of whether, and to what extent, the traffic lights applicable to Mr Weston had actually been visible to Mrs Kesby was the subject of further cross-examination, to the following effect:
COUNSEL: You tell the members of the jury that from your position in one of those eastbound lanes you were able to observe a traffic light that’s on the south median strip facing north. Correct?
KESBY: Correct.
COUNSEL: That’s how you’re able to work out what colour the traffic lights were. You say you can actually see them?
KESBY: I say I can see the colours, yes.
COUNSEL: Can you see the lights or can you see the colours?
KESBY: Both. You can see where in the bank of lights the colours are coming from.
…
COUNSEL: Are you saying that you can see that electronically illuminated glass lens that gives off the signal or are you saying you just see some shadow of light or a reflection of light but not the actual signal itself?
KESBY: I could see the shape of the light.
COUNSEL: What does that mean?
KESBY: Where the circle was and where which one with the arrow was and what colours they were.
COUNSEL: Could you see the circle or the arrow?
KESBY: Yes.
COUNSEL: … I want to suggest to you that the traffic control signal that is over on the centre median strip … is … a bank of lights that has a shroud around it for each particular signal?
KESBY: Yes, I believe so.
COUNSEL: I want to suggest to you that if you’re in a vehicle facing east at the intersection in a position you say now that you were in, you can’t see the light. You certainly can’t see the lens of the light at a traffic control signal situated in the south median strip?
KESBY: You can see in the bank of lights where the green’s come out and where the red’s come out and you can determine with the cylinders that around the lights whether it’s circular or arrow-shaped though because of their locations and colours.
COUNSEL: So is what you’re now telling the members of the jury that you can’t actually see the lens of the light but you can see the glow from the light?
KESBY: That’s what I thought I said anyway, but, yes.
COUNSEL: So is that what you’re now saying … it’s the glow from the light that you can see?
KESBY: In the cylinder around the light, yes.
COUNSEL: Because you can’t actually work out by looking at it, because you can’t see whether the lens of the light shows an arrow or a circle?
KESBY: To my memory I don’t know if I physically saw a circle or an arrow, if that’s what you mean.
COUNSEL: So what you say you see is the glow of a light?
KESBY: At – I saw a glow of – two different coloured glows, a red and a green.[5]
[5]Emphasis added.
Mr Gui submitted on the appeal that Mrs Kesby’s evidence was evidence of the direct observation of her eyes.
Mr Weston submitted that the evidence given by Mrs Kesby at trial was not direct evidence of the colour of the lights. It was, rather, evidence based on observing the glow in the cylinder around the lights and the conclusion was drawn that there was a green arrow based on the locations of the lights.
I agree.
The fact in issue was the colour of the traffic light for vehicles heading south along Springvale Road immediately before the collision: was there a green arrow for right-turning traffic and a red circle for traffic continuing to proceed south? Although the evidence of Mrs Kesby had its basis in what she observed with her eyes, she admitted that those direct observations were not of a green arrow. She admitted in cross-examination that she could not recall if she actually physically saw an arrow or a circle.
All Mrs Kesby saw with her eyes was: (1) the bank of lights the colours were coming from; (2) the glow from the cylinders around the lights; and (3) the locations of the lights. On the basis of those observations she engaged in the process of working out that the glow she saw must have had the shape of a green arrow. While the process of reasoning may well have been swift, in my view it is clear that the evidence was based on an inference drawn from a range of other observations. The evidence that there was a green arrow was not direct.
Her Honour was correct to characterise this evidence as inferential. I consider her description of the evidence in these terms as unimpeachable.
I reject Ground 1.
Ground 2 – Evidence of Mrs Kesby supported by numerous inferences
For the purpose of Ground 2, Mr Gui was prepared to accept, on the hearing of the appeal, that Mrs Kesby’s evidence could be characterized as inferential (his primary position being that it was direct evidence). However, he submitted, even if Mrs Kesby’s evidence was inferential, the contest regarding the traffic lights was between her evidence and Mr Weston’s, and the judge ought to have identified all of the other pieces of inferential evidence that supported Mrs Kesby’s evidence. Those inferences included all the matters set out in Ground 2 above.[6]
[6]See [19] above.
However, Mr Weston pointed out that a close examination of her Honour’s charge indicates that she drew attention to most of the inferences listed in subparagraphs (a) – (f) of Ground 2. This can be demonstrated by the following:
Ground 2 (a) – the evidence of Mr Gui and Mrs Kesby of the presence of a vehicle in the right turn lane for vehicles heading south in Springvale Road.
Ground 2 (c) – the heaviness of the traffic at the intersection heading south at the time of the collision making it more probable that there was a vehicle in the right turning lane heading south.
Charge to the jury –
You are asked to make that inference – that is, that [Mr Weston] went through a red light from the following facts which you are asked to accept on the balance of probabilities on behalf of the plaintiff.
Now, there seems to be no dispute that the state of the traffic was heavy for traffic heading in the same direction as the defendant’s [Mr Weston’s] car that night. … So the inference that Mr McCredie [counsel for Mr Gui] asks you to draw is, ‘Well, what happened to all of the other cars? There must have been a car or cars in the right-hand lane …’
So you are asked to infer that by the time the defendant [Mr Weston] has pulled up at the traffic lights and it is red there are other vehicles on the roadway facing in the same direction as him. …
Mr McCredie asks you to infer, given the state of the traffic and the likelihood of right-turning vehicles, it is probable that there was a right-turning vehicle which would have activated that sequence of lights that has the green turn arrow for right turning vehicles and a red circle for the defendant’s [Mr Weston’s] car. He says that you should accept that there was a vehicle waiting to turn right and even the defendant [Mr Weston] himself does not discount that as a possibility. Just because he does not remember that there was a vehicle there, he does not discount the possibility of the presence of a vehicle there. You have the evidence of Mrs Kesby … on this question as well.
Ground 2 (b) - the evidence of Mrs Kesby of the presence of a vehicle turning right from the right turn lane for vehicles heading north in Springvale Road.
Charge to the jury –
In summarising the evidence of Mrs Kesby, the judge referred to the evidence that not only was there a right-turning vehicle heading south-west, but also there was a right-turning vehicle heading north (that is, a vehicle coming from the south headed north and turning right in an easterly direction).
Question, "Did you make any observation of vehicles, first of all making right-hand turns from Springvale Road, north or south?" She said, "There was at least one car that I remember going from north to west turning right." She pointed, "… and I believe there was one also coming from south going east."
Ground 2 (d) – the evidence of Mr Gui and Mr Weston that Mr Gui was not at risk of being struck by any vehicle heading south in the lane adjacent to Mr Weston’s vehicle after he landed on the roadway in front of that lane after the collision.
Charge to the jury –
When the defendant moved his vehicle, no other vehicles that were travelling straight through the intersection went off along with his vehicle, submits [counsel for Mr Gui], which would tend to confirm, he says, that Mr Weston made a mistake because if there was a car in the lane immediately beside Mr Weston’s vehicle – so now we are talking about a car in Lane 3 – it would have struck, it would have run over Mr Gui as he lay there on the roadway, given where he ended up on the roadway. But there is no evidence of any other car that was travelling through the intersection.
Ground 2(e) – Mr Gui’s evidence that the vehicle in the eastern most lane heading south remained at the intersection after the collision.
Charge to the jury
Mr Weston does not say that other cars took off with him. There is no suggestion that a vehicle behind him took off. There is no suggestion that a vehicle in the lane beside him took off. There is no suggestion of a vehicle beside that vehicle taking off. From that you are also asked to infer that if his was the only vehicle that took off, it is more likely, being beside a right-turning vehicle that had a green arrow, when that vehicle moved off Mr Weston made a mistake and also proceeded, being conscious of the fact that another car was travelling and so he started too.
Ground 2 (f) – if the jury should so find, Mr Weston’s inattention at the time, evidenced by his failure to see Mr Gui prior to the collision.
Charge to the jury
The plaintiff submits - the defendant was the one in the car, he is the one who drove through a red light, and even if you are not satisfied the defendant drove through a red light he failed to see the plaintiff at all prior to the collision. He alleges the defendant failed to keep a proper lookout; as a consequence took no evasive action whatsoever. He started his car, he did not brake, he did not take his foot off the accelerator, he did not sound the horn, he did not manoeuvre his vehicle in any attempt to avoid the collision.
It was not in contest that Mr Weston did not see Mr Gui prior to the collision and the judge noted that the jury was invited to infer by Mr Gui that Mr Weston went through a red light.
In addition, the judge stated that Mr Gui invited the jury to draw the inference that Mr Weston had made an honest genuine mistake in thinking that he had a green light, when in fact the green light was for turning traffic only and the light applicable to him was red.
In my view, her Honour made it clear that there were a number of inferences that could be drawn in support of Mr Gui’s case. Insofar as Ground 2 points to the failure of her Honour to identify these inferences as matters that supported Mrs Kesby’s observations, I do not consider that it was necessary for her Honour to direct the jury that these matters of inference supported Mrs Kesby’s version of events. Whether or not the contest about the colour of the traffic lights was a contest between Mr Weston and Mrs Kesby, or more generally between Mr Weston and the circumstances relied on by Mr Gui as part of his case, is of no consequence. I consider that it is wrong to regard Mrs Kesby as an essential intermediary whose observations were to stand as the benchmark against which all other matters were to be evaluated. This may have been so if her evidence was direct and not inferential evidence. However, I have already determined that her evidence was correctly characterised as inferential.
There is no merit in Ground 2 and I reject it.
Ground 3 – Directions on inferential evidence
When directing the jury as to the manner in which they ought to approach the evidentiary dispute between Mr Weston and Mrs Kesby, the trial judge distinguished between direct evidence – ‘a witness’s evidence about something that he or she saw, heard or did’, and ‘conclusions or inferences from facts which have been established by the direct evidence’. Her Honour gave several examples of inferential reasoning, and the ways in which it can be distinguished from guesswork or speculation. The first, the ‘rain example’, referred to the drawing of an inference that it had rained during the night based upon the fact that the ground and trees were wet in the morning. The rain example was given to illustrate that the conclusion was legitimate even if one had not actually seen the rain. The second, the ‘Jennifer and Brian example’, was expressed by her Honour as follows:
Let me give you another example, and it has got nothing to do with this case, this is an example from having mum over for dinner. Brian, who shared a house with Jennifer, invited his mother over for dinner. During the course of the meal Brian’s mother could not help but notice how beautiful Brian’s housemate, Jennifer, was.
Brian’s mum had long been suspicious of the true nature of the relationship between Brian and Jennifer, even though Brian and Jennifer described their relationship as purely platonic. Mum became even more curious. Over the course of the evening, while watching the two of them interact, she started to wonder whether there was something more in the relationship between Brian and Jennifer than met the eye.
Reading into his mum’s thoughts, Brian volunteered, ‘I know what you must be thinking, mum, but I assure you Jennifer and I are just housemates.’ About a week later Jennifer came to Brian saying, ‘Ever since your mother came to dinner I have been unable to find that beautiful silver gravy ladle. You don’t suppose she took it, do you?’ Brian said, ‘Well, I doubt it. But I’ll send her an email, just to be sure.’
So he sat down and wrote this email, ‘Dear Mum, I am not saying you did take the gravy ladle from the house and I am not saying you did not take the gravy ladle from the house, but the fact remains that one has been missing ever since you were here for dinner. Love, Brian.’ Several days later Brian received an email back from his mother, and it read like this, ‘Dear Son, I am not saying you do sleep with Jennifer, I am not saying you do not sleep with Jennifer, but the fact remains if Jennifer is sleeping in her own bed she would have found the gravy ladle by now. Love, Mum.’
The final example used by the judge to illustrate the nature of inferential reasoning was the ‘plane example’. In the plane example, she asked the jurors to imagine that they were in Melbourne at 5 pm, then flew to Sydney and had dinner at 8 pm, and saw the two barristers from the trial at a restaurant in Sydney whom they had just seen in Melbourne prior to their departure. In such circumstances, it would be safe to infer that counsel had flown to Sydney, as that is the only means by which someone could get from Melbourne to Sydney within a period of three hours. However, it would not be open to infer that they had flown with Qantas, or that they had travelled together; the limited information available would not support such an inference, and any such conclusion would be ‘merely guesswork or speculation’.
The judge then returned to the Jennifer and Brian story to draw out the principle for the jury to apply. She said:
And what about mum, was her inference the logical one to draw; is it the most probable one to draw from the facts? What do we not know about the situation? Well, for starters, we do not know whether Jennifer stayed at home every night after the dinner. What if she had to go and stay with her mum, who was sick, and she had never actually been back to her bed and the gravy ladle is still lying there in between the sheets?
What if, in mum’s enthusiasm to test the situation, she pushed the ladle in so far it fell out the other end, hit the wall and is lying under the bed? What if that night Jennifer rolled up all of her laundry into a big bundle and the gravy ladle is wrapped up in the sheets in a basket on the laundry floor? Although it may be an entertaining example, are you really able to say whether or not mum’s inference as drawn was really anything more than guesswork or speculation based on her preconceived idea of what the true nature of the relationship was.
I use that example because it demonstrates just how careful you need to be when you are relying on inferences. In everyday life, it just does not matter what we are prepared to accept from facts, but in a civil trial you have to be careful, and that is why you must put aside speculation and guesswork and use only inferential reasoning that you are entitled to do. What facts do you find on the balance of probabilities and what inferences are the more likely or most likely inferences to be drawn from those facts?
Her Honour then concluded with the application of the principles she had identified to the evidence to be resolved by the jury. She said:
So what are the inferences in this case that the parties rely upon? Well, the defendant says when he went through the intersection the traffic light that was applicable to him turned to green. That is his direct evidence. The plaintiff says, however, that contrary to that direct evidence you should draw an inference that the lights that were applicable to him [Mr Weston] were in fact red, not green, and that he made an honest, genuine mistake, which probably most drivers make when they pull up in a lane right beside a right-turning lane that has an arrow.
He asks you to draw that inference. He says you should draw that inference even though the plaintiff did not look back and see the colour of the traffic lights that were applicable to the defendants. You are asked to make that inference – that is, that the defendant went through a red light – from the following facts which you are asked to accept on the balance of probabilities on behalf of the plaintiff.
The judge then enumerated a series of propositions about the state of the traffic, the change in the lights, and so on, many of which have been set out above in the discussion of Ground 2.
Mr Gui submitted that the directions of the judge on the drawing of inferences generally, and specifically in relation to the evidentiary dispute that the jury was required to resolve, were erroneous.
He argued that the ‘Jennifer and Brian’ story was inapposite to apply to ‘the contest between the direct evidence of Mr Weston and the direct evidence of Kesby and could only be forensically useful where the only evidence was circumstantial and required an inference to be drawn as proof of some relevant fact in issue’.[7] I consider that this aspect of Mr Gui’s complaint collapses into Ground 1, founded as it is on the insistence on characterising Mrs Kesby’s evidence as direct, and I reject it for the reasons I have already given.
[7]Appellant’s Submissions, [15].
However, Mr Gui went further and submitted that her Honour, in directing the jury when they could accept inferential evidence, adopted an overly strict approach. The jury had laughed to discover the trick Brian’s mum had played before she inferred that Brian was sleeping with Jennifer. But, Mr Gui complained, the jury was directed that even this inference was mere guesswork or speculation if applied to the context of a civil trial. This had the consequence that when the judge put to the jury the contest between Mr Weston’s direct evidence, on the one hand, and all of the evidence, in relation to the heaviness of the traffic, the likelihood of right-turning vehicles, and so on, characterised as inferential, it would have appeared to the jury, erroneously, that they were required to prefer the direct evidence of Mr Weston over the ‘mere speculation’ of the evidence relied on by Mr Gui.
Mr Weston submitted that the judge did not direct the jury that all inferential reasoning was tantamount to mere speculation or guesswork. Rather, the judge was intent on giving illustrations of different forms of inferential reasoning, some sound (the rain example and the plane example) and some unsound, that could not be trusted (the Jennifer and Brian example). In doing so, the judge did not preclude the jury from preferring Mrs Kesby’s evidence as to the colour of the traffic lights, albeit based on inferential reasoning, over the direct evidence of Mr Weston. This enabled the jury, it was argued, to assess properly whether the inference Mrs Kesby drew was reliable or, by contrast, was merely the product of speculation or guesswork.
During the hearing of the appeal it was accepted by counsel for Mr Gui that the judge was intending to identify three categories of evidence: (1) direct evidence, (2) sound inferential evidence and (3) speculation, and that she was not seeking to impugn all inferential reasoning. The rain and plane examples made it clear that some forms of inferential reasoning were permissible. By comparison, it was argued, the Jennifer and Brian story was problematic because it was used to illustrate mere speculation when the inference that Brian was sleeping with Jennifer was open on the balance of probabilities, there being no realistic alternative explanation. The judge was thus imposing too high a standard. Moreover, because the story was amusing it was most likely to be the one remembered by the jury.
I agree that the judge was intent on describing different forms of inferential reasoning for the very purpose of contrasting the types of inferences that are reliable with those that are not. This was why she chose to use three different examples, and, indeed, within the plane example sought to demonstrate what conclusions could be validly inferred (that counsel had flown to Sydney) from those conclusions that were invalid because they amounted to no more than speculation (that counsel had flown with Qantas or had flown together). In doing so she did not suggest that all inferential reasoning was speculative or to be given less weight than any direct evidence; she was rather at pains to point out that some ‘inference[s] … can be safely drawn’ and some cannot. There was no error in that approach.
I do not agree that the use of the Jennifer and Brian story suggested to the jury that they had no choice but to accept Mr Weston’s evidence about the traffic lights. It was one of many examples of inferential reasoning, and the question of whether the inference about Brian and Jennifer’s relationship was open was really a matter of the likely availability of alternative explanations in the circumstances of the story. The judge was intent on pointing to a range of plausible alternative explanations to demonstrate, hypothetically, that the availability of those other explanations indicated that the inference about the relationship was mere guesswork. One could not seriously apply a balance of probabilities standard to the circumstances of the story without determining whether the other explanations were grounded in fact.
Moreover, there was no exception taken by Mr Gui at trial to the use of the Jennifer and Brian story. In those circumstances, it is more than difficult on appeal to criticise the judge for having failed to give a re-direction that was not sought.[8]
[8]See Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, 1607–8 [50]–[51] (Gleeson CJ, McHugh and Gummow JJ); Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; Morawski v State RailAuthority (1988) 14 NSWLR 374, 381 (Clarke JA). See also Brotherhood of St Laurence v McCabe [2013] VSCA 257, [73]–[75].
However, although I consider that there was no misdirection in the use the judge made of the Jennifer and Brian story, in my view it would have been more prudent for her Honour not to choose as an example of inferential reasoning a story that was amusing and may have been mistakenly construed as flippant. A judge should exercise great caution before engaging in judicial humour, most especially before a jury. As Gleeson CJ said, in addressing a symposium for the orientation of new judges:
The second matter to be mentioned concerns what might generously be described as judicial humour. Some judges, out of personal good nature, or out of a desire to break the tension that can develop in a courtroom, occasionally feel it appropriate to treat a captive audience to a display of wit. Sometimes this is appreciated by the audience, but sometimes it is not. When it is not the consequences can be very unfortunate. Judges and legal practitioners may underestimate the seriousness which litigants attach to legal proceedings, and they can become insensitive to the misunderstandings which might arise if the judge appears to be taking the occasion lightly or, even worse, if the judge appears to be making fun of someone involved in the case. Without wishing to appear to be a killjoy, I would caution against giving too much scope to your natural humour or high spirits when presiding in a courtroom. Most litigants and witnesses do not find court cases at all funny. In almost ten years of dealing with complaints against judicial officers to the Judicial Commission of New South Wales I have seen many cases where flippant behaviour has caused unintended but deep offence.[9]
[9]The Honourable Murray Gleeson AC, Chief Justice of the High Court of Australia, ‘The Role of the Judge and becoming a Judge’ (Sydney, 16 August 1998, National Judicial Orientation Programme).
The joviality associated with humour may seem inappropriate to a jury in the very serious task on which they have embarked. Moreover, the characters portrayed and the amusing ‘punch-line’ of the Jennifer and Brian story could have been distracting for the jury and not supportive of their task in weighing the evidence. The distinction between sound and unsound inferential reasoning was sufficiently explained by the different features of the plane example that her Honour identified. No doubt it is the bland, focused and uncontroversial nature of the plane example that has rendered it enduring as a suitable illustration of reliable and unreliable inferences to a multitude of juries over the years.
Moreover, Mr Weston submitted, it was open to the jury to conclude that the traffic light applicable to Mr Weston’s vehicle was green without focusing at all upon the characterisation of Mrs Kesby’s evidence as inferential or being alert to the risks associated with the drawing of inferences.
I agree.
The damaging cross-examination to which Mrs Kesby was subjected, as set out above, meant that the jury may well have considered her to be an unreliable witness whether or not the evidence she gave was direct or inferential. While there were numerous changes in her account from the time she gave her statement to the time she gave evidence at the trial, one particular change was significant. This was the change in the perspective from which she viewed the traffic lights. If she was in Waverley Road, and not in Springvale Road driving south, as she had previously said, this meant that Mr Weston was the only witness actually facing the traffic lights for southbound traffic in Springvale Road. The perspective from an east-bound lane in Waverley Road on the traffic lights applicable to those travelling south along Springvale Road was clearly inferior to the perspective of a driver facing those lights. This fact may have been sufficient in itself for the jury to determine that Mr Weston’s evidence was to be preferred.
It cannot be concluded, as Mr Gui urged, that the jury would have relied on the evidence of Mrs Kesby, and the other evidence that supported her (the heaviness of the traffic, the likelihood that there was a car in the right lane, and so on), but for the Jennifer and Brian story. In particular, it cannot be concluded that the jury rejected Mrs Kesby’s evidence for the wrong reason, namely, that it involved inferential reasoning of the type employed by Brian’s mother, when the reliability of Mrs Kesby’s evidence was so successfully impugned. The inconsistencies in Mrs Kesby’s evidence meant that the jury could reject it.
I reject Ground 3.
Ground 4 – Direction on ‘a moment of mere inattentiveness or inadvertence’
When describing the circumstances of the collision, the trial judge stated that, ‘[n]ot every imperfection of a plaintiff constitutes contributory negligence’, and that ‘[a] jury might conclude that a moment of inattention or inadvertence on a plaintiff’s part is of no great moment’. She noted that the relevant test for negligence was an objective one.
At trial, counsel for Mr Weston took exception to this direction on the ground that, as a matter of balance, the jury should be instructed, as a redirection, that momentary inattention on a defendant’s part is also not negligence. It was conceded before her Honour that the direction she had given with respect to a plaintiff was unnecessary. This was so because the contributory negligence in issue relating to Mr Gui was in being on the pedestrian crossing contrary to the lights, having deliberately entered the pedestrian crossing, rather than that he had been momentarily inattentive.[10]
[10]Appellants’ submissions [20].
Before her Honour, counsel for Mr Gui objected to the proposed redirection on the ground that such a redirection would raise a false issue, and might suggest that if momentary inattention was not a sufficient basis for negligence this would also preclude the jury from finding Mr Weston negligent for failing to see Mr Gui or failing to observe the traffic lights. The judge appeared to indicate that she would redirect only to correct what she had stated in respect of the momentary inattention of Mr Gui. However, she went on to say that the issue of momentary inattention ‘cuts both ways’:
Now, there was another mistake I made, and I will correct that one too. When I was charging you on contributory negligence I spoke of momentary inattention not necessarily being of great moment. That cuts both ways.
Can I tell you that the parties have correctly told me this has got nothing to do with this case – momentary inattention is not an argument of either party. So the plaintiff is not saying there was momentary inattention on the part of the
defendant, and the defendant is not saying there was some momentary inattention on the part of the plaintiff.[11]
[11]Emphasis added.
Counsel for Mr Gui objected again on the ground that the redirection mistakenly stated that it was not part of Mr Gui’s case that there was momentary inattention on Mr Weston’s part whereas Mr Gui’s case did in fact rest upon, amongst other things, an allegation that Mr Weston had been momentarily inattentive which led him to fail to see Mr Gui and to mistake the red circle for a green arrow. The trial judge refused to redirect again, stating to counsel that:
I thought I made it very clear what your case is … that you say that on Mr Weston’s admissions that the only place he was looking was forward and he had plenty of opportunity to see Mr Gui if only he had looked. It’s not really inattention. You’re saying he failed to keep a proper lookout and he drove when it was unsafe to do so and whether you call it inattention or something else, I use your words, he made a mistake about the lights. I feel if momentary inattention – if I was wrong directing about momentary inattention, and I thought you agreed I was, I should remove that as an issue in the case both for the plaintiff and for the defendant because maybe I mistook [counsel for Mr Weston]’s argument that maybe in a momentary inattention, in this case where the light was a green arrow, not a green circle, that moment where he took his foot off the brake and put it on the accelerator was a momentary act.
Mr Gui accepted on appeal that what the jury made of the redirection on momentary inattention, and how it applied that redirection, is impossible to know. It did not preclude the jury from finding negligence on the part of Mr Weston. However, he submitted, the redirection occurred in that part of the charge relating to the apportionment of fault. He submitted that the redirection erroneously limited, indeed essentially eliminated, his claim that Mr Weston was at fault and may have been used by the jury as diminishing the fault attributable to Mr Weston.
In response, Mr Weston submitted that the flaw in Mr Gui’s submission was to focus upon an isolated aspect of the judge’s charge when the redirection needs to be viewed in the context of the charge as a whole. The case against Mr Weston was that he either ran a red light or failed to keep a proper lookout for pedestrians. The judge squarely put that case to the jury:
[Mr Gui] says at the bare minimum you should find [Mr Weston] negligent because regardless of the colour of the lights that were applicable to him, even if the light that he was facing was green, before he drove off he should have looked to make sure no-one was coming from his right, but [Mr Gui] also argues that you should be satisfied on the balance of probabilities in fact there was a further mistake that [Mr Weston] made, and that is he wrongly assumed that the light applicable for him was green, in fact what he saw or perceived was a green arrow, but the light facing him was red.
The judge reaffirmed that this was the way the case was put against Mr Weston immediately after her redirection on momentary inattention when she repeated the way each party put his case. She said:
You will recall the cases for each. The plaintiff [Mr Gui] says that the defendant either went through a red light [or was] not looking sufficiently. The defendant [Mr Weston] says he did not see the plaintiff at all prior to the collision. The plaintiff says there was a car in the right-turn lane, he did not see the defendant’s vehicle until it was virtually too late and he tried to jump out of the way. So it is not a case of inattention on the part of the plaintiff, for example, on his evidence he was concentrating on looking where he was going, he just did not see.
Mr Weston submitted that her Honour was correct to describe the case actually put by Mr Gui, and not to confuse the jury by re-characterising the case as concerning momentary inattention. Moreover, Mr Weston never sought to argue that, even if he had gone through a red light, he was not negligent by reason of momentary inattention. Rather, his case at all times was that he was not negligent because the light was green in his favour. In those circumstances, it was argued, no reasonable jury could have concluded that although the light was in fact red, nevertheless Mr Weston was not negligent because he was only guilty of momentary inattention, a case he never put.
I agree.
I accept that the apportionment arrived at by the jury (Mr Gui 85 per cent and Mr Weston 15 per cent) was consistent with a finding by the jury that the light was green in Mr Weston’s favour but that he, negligently, had failed to keep a proper lookout. The high disproportion of liability found by the jury against Mr Gui does indeed suggest that the jury must have accepted that the traffic light for Mr Weston
was green. Had the jury accepted that Mr Weston went through a red light, the apportionment of liability would most likely have been much more adverse to him and in Mr Gui’s favour. A finding that the light was green is consistent with the evidence I described above which may well have led the jury to consider that Mrs Kesby’s evidence was unreliable, not because it was inferential but because of the numerous differences in her recollection between her statement and the evidence she gave at trial, most especially the perspective from which she viewed the traffic lights. This would indicate, as Mr Weston submitted, that the jury did not exculpate Mr Weston on some wrong view that mere inattention can never amount to negligence.
Ground 4 is lacking in merit and should be rejected.
Conclusion
There is no basis for setting aside the jury verdict on apportionment. The appeal should be dismissed.
WHELAN JA:
I agree with Tate JA.
santamaria JA:
I have had the benefit of reading the reasons of Tate JA, and I agree with them.
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