Henrick v Kubale
[2001] WASCA 274
•12 SEPTEMBER 2001
HENRICK -v- KUBALE [2001] WASCA 274
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 274 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:159/2000 | 10 AUGUST 2001 | |
| Coram: | MALCOLM CJ STEYTLER J WHEELER J | 12/09/01 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | MICHAEL RALPH HENRICK GLEN HOWARD KUBALE |
Catchwords: | Appeal Evidence Whether trial Judge failed to evaluate evidence adequately No error of law Turns on own facts |
Legislation: | Nil |
Case References: | Nil Arthur v Cooke (1988) 6 MVR 466 Leak v Willits (1988) 7 MVR 61 Lloyd v Faraone [1989] WAR 154 Mocevic v Proc Group Ltd [2001] WASCA 45 Stojkovski v Fitzgerald [1989] WAR 328 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : HENRICK -v- KUBALE [2001] WASCA 274 CORAM : MALCOLM CJ
- STEYTLER J
WHEELER J
- Appellant (Plaintiff)
AND
GLEN HOWARD KUBALE
Respondent (Defendant)
Catchwords:
Appeal - Evidence - Whether trial Judge failed to evaluate evidence adequately - No error of law - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Category: D
Representation:
Counsel:
Appellant (Plaintiff) : Mr A S Stavrianou
Respondent (Defendant) : Mr J R Brooksby
Solicitors:
Appellant (Plaintiff) : D'Angelo & Partners
Respondent (Defendant) : Greenland Brooksby
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Arthur v Cooke (1988) 6 MVR 466
Leak v Willits (1988) 7 MVR 61
Lloyd v Faraone [1989] WAR 154
Mocevic v Proc Group Ltd [2001] WASCA 45
Stojkovski v Fitzgerald [1989] WAR 328
(Page 3)
1 MALCOLM CJ: In my opinion this appeal should be dismissed for the reasons to be published by Wheeler J, with which I am in complete agreement.
2 STEYTLER J: I have had the advantage of reading the reasons for decision to be published by Wheeler J. I agree with them and have nothing to add.
3 WHEELER J: This is an appeal from a decision of Williams DCJ dismissing the appellant's action against the respondent in respect of a traffic accident which the appellant alleged was caused by the negligence of the respondent.
4 The respondent was the driver of a white utility and had been driving in a westerly direction along Scarborough Beach Road until he came to the intersection of Scarborough Beach Road and Hutton Street. At that intersection Scarborough Beach Road and Hutton Street form a T-junction, with Scarborough Beach Road the continuing and Hutton Street the terminating road. The speed limit on Scarborough Beach Road is 60 kms per hour. There are two lanes of traffic in an easterly directions and two lanes in a westerly direction along Scarborough Beach Road, save that at the traffic lights there is for west-bound traffic a "slip lane"; that is, a third lane for a short distance leading up to the traffic lights which is provided so that drivers wishing to turn north (right) into Hutton Street may wait without interfering with the flow of traffic.
5 The respondent's evidence was that he had entered the slip lane intending to turn right and that as he approached the traffic lights they were green, changing to orange at the time at which he entered the intersection. He observed no traffic coming towards him in the centre lane of east-bound traffic (the lane closest to him), but did observe two vehicles in the kerbside lane of east-bound traffic. He "focused his attention" on them and when he was sure that they had stopped, he went to complete his turn. The lights were red at that stage. He then for the first time saw the appellant's motor cycle in the centre lane of east-bound traffic some 30 to 40 metres from him travelling at about 80 to 90 kms per hour. The motor cycle rider appeared to have his head down and did not observe his vehicle. Once he was convinced that there was going to be an impact between his vehicle and the motor cyclist, he lay down on the front seat. All those who gave evidence suggested that if the appellant had looked up and observed the respondent's vehicle, there would have been plenty of room for him to go around it.
(Page 4)
6 His Honour's findings of fact included that there were four or five cars in the kerbside lane, travelling in an eastbound direction just prior to the accident. That was supported by the evidence of an independent witness. He found that those vehicles were slowing down, because the lights had changed to amber. That evidence was supported by the evidence of more than one independent witness. It was then his Honour's finding that the appellant pulled out from behind those vehicles in the kerbside lane, where he had been travelling, in order to pass that traffic and attempt to "run the lights" which were at that time amber. It was his finding that at the time of the collision the lights facing the appellant were red. He found that at the time at which the respondent went to execute his turn, it was safe to do so and that it was only due to the fact that the appellant had pulled out from behind a line of traffic at great speed in an attempt to run the lights that the collision had occurred. He also found that the respondent did keep a proper look-out, having noted that there was no traffic in the centre lane and not making his turn until the traffic in the kerbside lane had come to a halt.
7 It does not appear from the grounds of appeal or from the argument which was made before us, that it is intended to suggest that the appellant was not negligent. All of the evidence of the independent witnesses was to the effect that the appellant had been travelling at a speed significantly in excess of the speed limit, at a time at which the traffic light facing him was amber. There was independent evidence that he was looking down and was not keeping a look-out in front of him and there was evidence that at a point approximately four or five car lengths back from the traffic lights, he had been accelerating.
8 There were essentially two issues raised before us. It was suggested that his Honour had failed to give adequate reasons for his findings and that in any event the evidence disclosed that the respondent had failed to keep a proper look-out and had turned across the appellant's path when it was unsafe to do so.
9 In my view, the first of these grounds can be fairly readily disposed of. It is true that his Honour did not undertake a detailed analysis of the evidence. However, it was a case in which the facts were in short compass, the evidence of independent witnesses pointed in one direction only, (although there were, as might be expected in relation to an accident occurring within the space of a few seconds, a few minor discrepancies) and the evidence of the appellant was unsatisfactory in a number of respects.
(Page 5)
10 The appellant's evidence as to his speed was entirely inconsistent with the evidence of the independent witnesses. So far as the colour of the traffic lights was concerned, he asserted that they were green when he had last looked at them prior to the accident, but conceded that he was approximately "100 yards" away when he last saw them. He conceded that as he passed the cars in the kerbside lane, they were slowing down. He conceded that he had been in the kerbside lane at some time because he "would have been keeping to the left" and that he moved to the centre lane in order to pass those vehicles. He asserted he did not notice whether they were slowing or not prior to his moving out to pass them. He asserted that he had a clear view in front of him, but this is of course inconsistent with the evidence of others that he was not looking in front of him immediately prior to the collision.
11 While his Honour did not make a positive finding about the evidence of the appellant, it appears to me from his reasons, that his Honour was plainly accepting the evidence of the respondent in preference to that of the appellant. I note particularly that his Honour's account of what the appellant had said in evidence was prefaced with the words "According to the plaintiff's evidence….", while no such qualification attached to his Honour's summary of evidence which had been given by the respondent. The proposition that he had accelerated out from behind slowing traffic in order to run the lights was clearly put to the appellant during the course of cross-examination, and his response ("I don't think it happened like that") would have been observed by his Honour. In circumstances where the facts are within a very small compass, there were clear difficulties with the appellant's credibility, and the findings of the learned trial Judge make it clear that he adopted a version of the facts which is consistent with that of other witnesses and inconsistent with those of the appellant, it was not in my view necessary for him to explore issues of credibility in any detail, provided that it is clear, as it is in this case, upon what evidence his Honour did rely.
12 Upon the evidence which was accepted by his Honour, there were only two hypotheses open. Either the respondent had not been negligent at all, because the appellant had pulled out from behind a line of stationary traffic so suddenly and at such speed that the collision had occurred despite proper look-out on the part of the respondent; or, as it appeared that the appellant's counsel was suggesting, even if the appellant had been travelling at excessive speed and had not been keeping look-out immediately prior to the collision, there was nevertheless some negligence on the part of the respondent because he would not have turned had he been keeping a proper look-out.
(Page 6)
13 Support for the finding that there was negligence on the part of the respondent is said to come from a number of matters. First, it was suggested that there was no evidence that the appellant had pulled out from a line of traffic in the kerbside lane. It therefore followed, it was argued, that he had been travelling, as he said, in the centre lane and should therefore have been observed by any person keeping a proper look-out. The difficulty with this submission is that the appellant himself admits that he was travelling in the kerbside lane at a point not too long before the accident and that the only reason which he seems to have given for changing lanes was in order to pass the traffic in the kerbside lane. The evidence was that there were about four or five vehicles ahead of him in the kerbside lane, and it was therefore entirely reasonable for his Honour to find, as he did, that the appellant had pulled out from behind those vehicles, accelerating, in order to pass them.
14 The second matter which was suggested, although rather more faintly, was that the respondent had been negligent in turning on a red traffic signal. However, the respondent's evidence was that the light had changed to amber at approximately the time at which he passed over the stop line associated with the traffic lights. He had done so at a slow speed. He had then observed that the centre lane was clear and had paused, it appears, in order to ensure that traffic in the kerbside lane had stopped before completing his turn. It was precisely because he was keeping a proper look-out that he had by then been delayed until the traffic light had turned, or was turning, to red. However, by this stage he was already in the centre of the intersection, and in danger, if he remained where he was, from vehicles on his right which would shortly be facing a green traffic light. He was already, it appears, intruding partially onto the centre lane of oncoming traffic. In any event, his evidence was that the centre lane of oncoming traffic at that stage was clear.
15 Finally, attention was drawn to the respondent's evidence that he "focused his attention" on the vehicles in the kerbside lane. Therefore, it was argued, he cannot have been keeping a proper look-out in relation to vehicles in the centre lane. However, it appears to me that on any reasonable understanding of the respondent's evidence he was saying that he had consciously observed the centre lane and found it free and that the focus of his attention on the kerbside lane was because he was then intending to complete a turn across that lane. He did not say that he was not in a position to observe what happened in the centre lane; indeed, as his Honour noted, he observed the appellant's motor cycle at a time when it was some 30 or 40 metres distant from him, so that he obviously had the centre lane within his view at the relevant time. I do not think his
(Page 7)
- evidence can be understood as suggesting that he was looking at the kerbside lane to the total exclusion of anything else which would have been within his field of vision. It was suggested that he must not have been keeping a proper lookout, because if he had done so he must have seen the appellant's motor cycle at an earlier stage; however, this ignores his Honour's finding that the appellant pulled out from behind a relatively short line of stationary traffic at high speed. It would be perfectly understandable, in those circumstances, if, so far as the respondent was concerned, the appellant then suddenly "appeared" in the centre lane some 40 metres away.
16 It is my view that the findings which his Honour made were not inadequate, and were fully supported by the evidence which was before him. It therefore follows that this appeal should be dismissed.