Jovanovic v Rossi

[1985] HCA 17

HIGH COURT OF AUSTRALIA

Mason, Wilson, Brennan, Deane and Dawson JJ.

STOJANKA JOVANOVIC v. ANTONIO ROSSI

14 March 1985

Decision

MASON, WILSON, BRENNAN, DEANE and DAWSON JJ. The appellant was injured when a motor car which she was driving struck an electricity pole in Lower North East Road in Campbelltown, a suburb of Adelaide. She claimed damages against the respondent in the Supreme Court of South Australia for the injuries which she sustained. She alleged that the accident was the result of the negligence of the respondent who had driven out from a side street on the appellant's left and thereby caused her to swerve and hit the pole. The learned trial judge found that there was no negligence on the part of the respondent and this finding was upheld by the Full Court. It is against the judgment of the Full Court that the appellant now appeals to this Court.

2. The accident happened at about 7.45 a.m. on 23 January 1979. The appellant, who was a nurses' aid, was returning home from work. She was driving away from the city in a north-easterly direction along Lower North East Road, which she had entered some distance from the point of collision after having been stopped at some traffic lights. Lower North East Road is a busy thoroughfare comprising two lanes upon each side of its centre line. It is convenient to number the lanes, as was done at the trial, 1, 2, 3 and 4, commencing with the left-hand lane upon the side of the road along which the appellant was travelling. The total width of Lower North East Road is 15 metres.

3. It was common ground that under the Road Traffic Act 1961-1975 (S.A.) the respondent was required to give way to vehicles travelling in Lower North East Road in the direction in which the appellant was travelling. Under s.62 of that Act:

"Where by this Act a driver is required to give way to a vehicle or person, it shall be his duty, in circumstances where if he proceeded there would be a reasonable possibility of his colliding with or otherwise endangering such vehicle or person, to slow down his vehicle to such an extent, or to s and stand his vehicle for such time, as is necessary to allow such vehicle or person to continue on its or his course without risk of such collision or danger".

4. The appellant said that after entering Lower North East Road she was travelling in lane 2 and stopped behind a car which was negotiating a right-hand turn into a street on her right some 180 metres from the point of collision. The point at which she stopped is on the crest of a hill. After the car in front had made its turn, the appellant continued along Lower North East Road. She said that she remained in lane 2 and changed through the gears of her car, which had four gears, into third gear. There were, according to her evidence, cars behind her in lane 2 and beside her in lane 1 travelling in the same direction. As the appellant was approaching Hill Street, which formed a T junction with Lower North East Road on her left, the motor car driven by the respondent appeared in front of her as if it had entered Lower North East Road from Hill Street, which it had in fact done. The appellant gave evidence that when she saw the respondent's vehicle she was still in lane 2 and that there were cars on her left which prevented her from changing from lane 2 to lane 1. The respondent's car was, according to the appellant, "not very far" away in the middle of her lane trying to turn. She said that it was completely covering lane 2. She braked and turned hard right in order to avoid the other car and, as a result, passed immediately in front of it, proceeded across lanes 3 and 4 of Lower North East Road and hit a pole near the kerb of lane 4.

5. The appellant gave evidence that before she braked the speed of her car was 30 to 35 kilometres per hour. In a statement which she made to the police on 1 March 1979 the appellant said that her speed may have been 40 to 45 kilometres per hour. Both in her evidence and in her statement she said that at the time of the accident her car was in third gear and in all other respects her statement was consistent with the evidence which she gave. When asked what caused the accident, the appellant replied in her statement: "A brown car came out from Hill Street, without giving way to his right. I tried to miss him and hit the stobie pole."

6. The respondent said that he had stopped at the junction of Hill Street with Lower North East Road where there was a give-way sign or stop sign facing him. He saw the appellant's car, which was a Renault, before he moved off to turn right into Lower North East Road. At that time, according to his evidence at the trial, it was coming over the crest of the hill in lane 2 and was some 180 metres away. He said that the Renault put on its left-hand turn indicator and turned into lane 1. The respondent commenced to move out into Lower North East Road in order to take advantage of a break in the traffic on the other side of the road and at that time, according to the respondent, the appellant was about 75 metres away. The respondent said that he crossed lane 1 into lane 2 and was commencing to curve to the right when he heard the screech of a tyre and saw the appellant's car in lane 1 swerving to its right. He applied his brakes and the appellant's car passed in front of his car. As he put it: "Like she said she missed it, I don't know how she missed it but she missed the front end and she passed in front of my vehicle in lane 3 and continued straight on and as she did that, hit the skids at the same time and went straight into the stobie pole." The respondent said that after he had stopped his car by applying its brakes, it was mostly in lane 2 with a small part projecting into lane 3. He also said that, other than the appellant's car, he did not see any vehicle in lane 1 or lane 2 of Lower North East Road from the time he first observed the appellant's car until it swerved in front of him.

7. Constable Henderson of the South Australian Police Force gave evidence that he attended the scene of the accident and measured some skid marks which extended for 15 paces from the rear of the appellant's car into Lower North East Road at an angle of 45 degrees to the centre line of the road. The commencement of the skid marks measured by Constable Henderson was not established with any precision and the evidence failed to establish whether they commenced in lane 1 or lane 2 of Lower North East Road. The trial judge, rightly, we think, remarked that the evidence concerning them was not of any great use, although he did form the view that they indicated "a preference" for his finding that the appellant was in lane 1 when she commenced to swerve. In the absence of sufficient evidence to identify the actual position of the skid marks, this is not a view which we are able to share. Constable Henderson also gave evidence that he noted that dazzle or glare from the early morning sun may have had some effect upon drivers travelling in a north-easterly direction. There was, however, no evidence that immediately before the accident the appellant's vision was in any way affected by the morning sun nor was she asked any questions about possible impairment of her vision.

8. The learned trial judge found that as the appellant approached the junction of Hill Street and Lower North East Road she was travelling in lane 1, which had almost been cleared by the respondent's vehicle. He formed the view that there was a gap in traffic travelling in the opposite direction which would, but for the appellant's action, have enabled the respondent to complete his right-hand turn, because the appellant in fact cut across the traffic without colliding with any vehicle. This latter fact is, however, equally consistent with a gap in the traffic travelling in the opposite direction having occurred only when the appellant swerved, the respondent having previously been caused to pause in lane 2. His Honour concluded that if the appellant had merely continued along lane 1, she would have passed safely behind the respondent's vehicle. He was unable to explain why the appellant swerved to her right, save that she may have failed to see the respondent's vehicle until she was close to the junction due to "a combination of the position of the sun and the condition of her windscreen, although there was no suggestion from her of either of those things". The trial judge, therefore, substantially accepted the version of events given by the respondent.

9. Ordinarily, of course, the appellant would encounter considerable difficulty in persuading this Court to interfere with the conclusions of fact of the learned trial judge which have been confirmed on appeal to the Full Court (Webb v. South Australia (1982) 56 ALJR 912, at p 912; (1982) 43 ALR 465, at p 466). That difficulty is however greatly reduced in the present case by a finding by his Honour that he derived "little or nothing" from the demeanour of the parties in giving their evidence and that he had no reason for doubting the credibility of either of them. By that finding, we take the trial judge to have meant that he regarded each of the parties as having endeavoured to give a truthful account of the accident although, because of a clear conflict between the two accounts, both cannot have been correct. Since, apart from the evidence of Constable Henderson to which reference has been made, the only evidence in the case was that of the parties and of admissions made by them, his Honour's conclusion that the respondent was not at fault must have been the result of his analysis of the evidence with a view to finding the facts upon the balance of probabilities. In that situation and subject to due weight being given to the conclusions of the trial judge, this Court is entitled to review the matter for itself, unhampered by the disadvantage which might otherwise have arisen from its not having heard or seen the witnesses give evidence: Taylor v. Johnson (1983) 57 ALJR 197, at p 198; (1983) 45 ALR 265, at p 267. On such a review, two related features of the case combine to persuade us that the learned trial judge's finding that there was no negligence on the part of the respondent should not be allowed to stand. The first is that we find the reasoning which led his Honour to conclude that the account of the accident given by the respondent in his evidence was to be preferred to that of the appellant unconvincing: for our part, we lean towards the view that the account given by the appellant was inherently the more probable one. The second is that his Honour appears to have disregarded the fact that the account which the respondent gave of the accident in his evidence some four years after the event was in plain conflict with two other conflicting accounts of it which he had previously given. We shall consider those two related features in the order in which we have mentioned them.

10. Upon the story told by the respondent in the witness box, the manoeuvre made by the appellant is left unexplained. It is no more than speculation, unsupported by the evidence, to suggest that the appellant crossed in front of the respondent's car because she was dazzled by sunlight. As has been said, no such suggestion was even put to the appellant in the course of her evidence. On the other hand, the appellant's story, which she maintained both in the witness box and in her statement to the police, contained no inherent improbability. In that regard, it is difficult to understand the importance which the trial judge apparently placed, in a critical part of his judgment, upon the fact that there was a distance of some 180 metres between the crest of the hill where the appellant had stopped behind a car turning to the right and the intersection with Hill Street where the accident subsequently occurred. In a passage which was quoted by both Zelling J. and Bollen J. (with whose judgments Wells J. agreed) in the Full Court, his Honour said:

" The plaintiff would have me believe that she travelled so much of that 180 metres or so towards where the defendant's car was when she saw it that by the time she saw the defendant's car it was simply straddling her track, i.e. lane two and that she was so close to it that the only way she could avoid it was by swerving and (by implication) that she was too close to it to stop by braking."

His Honour's statement that the appellant "would have" him "believe" that "she travelled so much of that 180 metres or so towards where the defendant's car was when she saw it that by the time she saw the defendant's car it was simply straddling her track" is somewhat ambiguous. If all that his Honour meant to convey was that the point of the accident was some 180 metres along the road from the point where the appellant's car had previously been stopped, that was an undisputed fact which would appear to be of little significance. If, however, his Honour meant that the appellant "would have" him "believe" either that she travelled 180 metres towards the respondent's car after it had been driven out on the roadway ahead of her or that, if she had looked, she must have had an unimpeded view of the respondent's car from the time it first emerged from Hill Street, it is, with respect, an inaccurate statement of what her evidence was. There is no basis at all in the appellant's evidence for an inference that her car was 180 metres away from the intersection with Hill Street when the respondent first drove out into the view of a motorist travelling along Lower North East Road towards the intersection. To the contrary, the clear inference from her evidence was that the respondent drove out on Lower North East Road and stopped when the appellant's car was so close to the intersection with Hill Street that she was forced to swerve to avoid a collision. Nor is there any proper basis in the appellant's evidence for assuming that she must have had an unimpeded view of the respondent's car from the moment he first drove it out from Hill Street. Perhaps because of language difficulties, her evidence was somewhat confused in relation to traffic in lane 1, that is, the lane between her and the intersection of Hill Street with Lower North East Road. It is, however, clear that she maintained that there was, at relevant times, such traffic: while her car was stopped on the crest of the hill behind the car turning right, other cars had passed her on her left; at the time of the accident, she was precluded from changing to lane 1 by traffic in that lane.

11. The respondent's two prior statements were made to different police officers. Each was oral. According to Constable Henderson's evidence, the first of them was made at the scene shortly after the accident occurred. The second was made some two months afterwards.

12. The statement made some two months after the accident was in the course of an interview with a Constable O'Donoghue. Its effect was to absolve the respondent from any real involvement in the accident. In it, the respondent asserted that he saw the appellant's car when it was about one hundred and fifty metres away on his right; that he drove to the centre of the road; that when he was there he saw the appellant's car change lanes to the left lane; and that he thought that it was going very fast but could not tell what speed it was doing. According to Constable O'Donoghue, the respondent's account of the actual occurrence of the accident was as follows:

"I had completed my right turn and was travelling south when the Renault suddenly swerved from the left lane it was in across in front of me" (emphasis added).

The contrast between the respondent's evidence, which was accepted by the learned trial judge, that at the time of the accident he was still in the process of crossing lane 2 while turning to the right and this account of what occurred is obvious. It is equally obvious that this prior account is wrong. Its significance would appear to be limited to the question of the respondent's credibility. Of greater direct importance is the account of the accident which the respondent gave at the scene.

13. Constable Henderson gave evidence that, when he attended at the scene of the accident, he had a conversation with the respondent. The respondent informed him that, while his car was still in Hill Street, he saw the appellant's car approximately seventy to one hundred metres south west of his position travelling in the "left hand lane" of Lower North East Road at about seventy kilometres per hour. He drove out with the intention of travelling towards the city. According to the respondent's statement to Constable Henderson, the appellant's car, which was "approx. 50 metres away immediately changed lanes for no reason. It seemed that the driver then hit the brakes at the same time as changing lanes. The Renault skidded east across the road and struck a pole" (emphasis added). While the respondent claimed that he could not remember making this statement, it was not suggested to Constable Henderson in cross examination that his evidence as to the content of what the respondent had said to him was fabricated or mistaken. On this account the only way in which the appellant could possibly have contributed to the accident was that she "immediately changed lanes" and "hit the brakes at the same time" when the respondent drove out some fifty metres in front of the appellant's car which was travelling at approximately seventy kilometres per hour. On that version of the facts, however, the respondent was negligent in cutting across the appellant's line of travel when there was insufficient time for him safely to do so.

14. As has been mentioned, the learned trial judge made no adverse finding in respect of the appellant's honesty. His rejection of her evidence would appear to have involved no more than a rejection of the reliability of her account of what had occurred in an accident which had taken place some four years previously and in which she had sustained serious injury. The unexplained and fundamental conflict between the respondent's evidence and his earlier accounts did not preclude acceptance of what the respondent said in his evidence. It did however, in the circumstances, at least raise considerations relating to his credibility to which the learned trial judge appears not to have adverted. More importantly, the account which he gave at the scene tended to support the appellant's case in significant respects and raised a real question concerning which of his conflicting accounts was to be preferred in the event that the appellant's account was rejected as unreliable. In a situation where both parties were giving evidence four years after the occurrence of the accident and where the learned trial judge made no adverse findings as to the honesty of either of them, the account of the accident which the respondent had given at the scene and which, upon analysis, supported the appellant's case against him, was plainly far too important to be simply disregarded in a judgment accepting in its entirety the inconsistent account which the respondent gave at the trial. It also precluded the approach which his Honour would appear to have adopted, namely, that what was involved was essentially a simple choice between the appellant's evidence and the respondent's latest version of the accident. It follows that the verdict in the respondent's favour must be set aside.

15. We have given consideration to the question whether we should go further and ourselves finally dispose of the matter. We are of the view that we should not. The appeal was argued in this Court on the basis that, if the appellant were to succeed, it would be necessary that it be remitted to the Supreme Court at least for the assessment of damages. The recognition of the significance of the respondent's earlier accounts of the accident necessarily re-opens the question of his present credibility. That is a question in respect of which an appellate court is at an obvious disadvantage. There was no real discussion before us of the question of contributory negligence in the event that it be held that the appellant is entitled to a verdict. In all the circumstances, we consider that the preferable course is to make orders which will have the effect of vacating the verdict in the respondent's favour and of remitting the matter to the Supreme Court for re-trial. The respondent must pay the costs of the proceedings in this Court and in the Full Court of the Supreme Court. The costs of the first trial should abide the outcome of the re-trial.

Orders

Appeal allowed.

Order of the Full Court of the Supreme Court of South

Australia set aside and in lieu thereof order that the appeal to that Court be allowed and that the judgment of Sangster J. be set aside.

Remit the matter to the Supreme Court of South Australia

for re-trial.

Order that the respondent pay the costs of the appellant

in this Court and in the Full Court of the Supreme Court of South Australia.

Order that the costs of the trial before Sangster J. be

costs in the cause.