Keam v Chiomey bnf Mercer

[2002] NSWCA 280

CITATION:	KEAM & ANOR v CHIOMEY bnf MERCER & ANOR [2002] NSWCA 280
FILE NUMBER(S):	CA 40098/02
HEARING DATE(S):	1 August 2002
JUDGMENT DATE:	28 August 2002
PARTIES :	Stephen Keam and Balesford Pty Ltd t/as Richmond Sand Gravel & Landscaping - Appellants Jacques Napoleon Chiomey by his next friend Nicola Mercer - First Respondent Lismore City Council - Second Respondent
JUDGMENT OF:	Sheller JA at 1; Beazley JA at 35; Hodgson JA at 36

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	35/00 (Lismore)
LOWER COURT JUDICIAL OFFICER :	Sidis DCJ

COUNSEL:	H G Shore - Appellants P W Neil SC/T J J Willis - First Respondent H J Marshall - Second Respondent
SOLICITORS:	Vandervords - Appellants Hosie & Partners - First Respsondent Crameri Lawyers - Second Respondent
CATCHWORDS:	NEGLIGENCE - child struck on pedestrian crossing - conflict of evidence - failure of trial Judge to make findings - insufficient reasons - acceptance of one account of plaintiff over an inconsistent account
LEGISLATION CITED:	N/A
CASES CITED:	N/A
DECISION:	Appeal dismissed with costs.

CA 40098/02
DC 35/00 (Lismore)

SHELLER JA
BEAZLEY JA
HODGSON JA

KEAM & ANOR v CHIOMEY bnf MERCER & ANOR

The appellants appeal from a decision of 26 September 2001 by Judge Sidis.

The first appellant was the driver, and the second appellant the owner, of a truck which struck and injured the plaintiff while he was riding his bicycle on a pedestrian crossing at the intersection of two streets. The appellants were sued in negligence.

The principal issue between the parties was

- whether shortly before the accident the plaintiff was standing either close to or on the intersection in a position clearly visible to the first appellant as he came to make a right-hand turn after travelling through the crossing and yet the first appellant failed to see him; or

- whether the plaintiff had ridden his bicycle at some speed and from a position where he could not have been seen by the first appellant, or could not have been seen until it was too late to avoid a collision, on to the pedestrian crossing and to the point of impact.

The trial Judge accepted the first scenario as an accurate description of how the accident occurred and the first appellant was found negligent. No order for contributory negligence was made against the plaintiff.

A difficulty with the plaintiff's account was how, while he was standing still on the pedestrian crossing, he was missed by the front near side wheel of the truck and run over by the back rear side wheels.

There were inconsistencies between the evidence given by the plaintiff in a statement made to the police within two months of the accident and the evidence he gave to the Court. The trial Judge accepted the accuracy of the evidence in the police statement. On appeal this approach was criticised by the appellants.

The principal ground of appeal was that the trial Judge had erred in failing to make necessary findings upon the question of liability where there was a conflict of evidence or if she did, failed to give sufficient reasons. It was also argued that the evidence of two witnesses which supported the first appellant's account of how the accident occurred should have been accepted by the trial Judge. Further, the appellants claimed that the trial Judge had failed to consider how the plaintiff could have been hit by the rear wheels of the vehicle on the account he gave.

HELD (per Sheller JA, Beazley JA and Hodgson JA concurring):

1. While it was open to the trial Judge to accept the plaintiff's account of what had occurred, her Honour failed to clearly state that she preferred one version of the accident to another. The trial Judge failed to make findings and then consider, on the basis of them, whether the first appellant could have had any chance of stopping before injuring the plaintiff.

2. It was open to the trial Judge to reject the evidence of the two witnesses whose account accorded with that of the first appellant.

3. It was open to the trial Judge to accept the account of the accident given by the plaintiff in the statement he made to the police.

4. The topography of the intersection was such that vehicles were required to turn towards the left to proceed down the street. Therefore, if such a turn was made, as the first appellant had been attempting at the time of the accident, it would explain why, even if the plaintiff was stationary, the rear wheels of the truck struck him and his bicycle.

5. While the trial Judge's findings were not clear, her Honour clearly rejected the evidence which suggested that the plaintiff recklessly rode on to the pedestrian crossing into the side of the truck. The plaintiff had right of way over the pedestrian crossing and it was not negligent for him to decide, even though he knew the truck was approaching the crossing, that he should proceed. It was reasonable for the plaintiff to expect the truck to give way to him, which would have occurred had the first appellant not been negligent in failing to keep a proper lookout.

ORDER
Appeal dismissed with costs.


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CA 40098/02
DC 35/00 (Lismore)

SHELLER JA
BEAZLEY JA
HODGSON JA

Wednesday, 28 August 2002

KEAM & ANOR v CHIOMEY bnf MERCER & ANOR

Judgment

1 SHELLER JA: Stephen Keam and Balesford Pty Limited appeal from a decision of 26 September 2001 by her Honour Judge Sidis in the District Court at Lismore.

Child injured by motor vehicle on pedestrian crossing

2 Mr Keam was the driver and Baylesford the owner of a Mitsubishi tip truck which at about 4pm on 25 March 1999 struck and injured the first respondent, Jacques Napoleon Chiomey, then aged 11, while he was on a pedestrian crossing at the intersection of Union and Casino Streets, South Lismore. By his next friend the first respondent (the plaintiff) sued the appellants and Lismore City Council (the Council) in negligence. The Council, as the body having the care, control and management of footpaths at the intersection, was sued on the ground that it allowed the lines of sight at the intersection to be obscured with landscaping and planting and thereby created a situation of danger for pedestrians.

3 The Council cross-claimed against the appellants for indemnity or contribution. When the trial began on 20 September 2001 counsel for the appellants sought leave to file a notice of cross-claim against the Council. Judge Sidis refused this application.

4 In summary, the plaintiff gave evidence that after coming home from school he had been asked by his grandmother to go to the post office in South Lismore to post a letter. For that purpose he took a cousin’s bicycle and rode to the area outside Doug Hogan’s Hotel, also known as the Station Hotel, on the southern corner of Casino Street at the intersection with Union Street. After an interlude with some friends he put one foot on the pedal of the bicycle and, while seated on it, used the other to push it along the footpath with one leg, an activity he called “scootering”. He had one leg on each side of the bicycle and was using one foot to push it rather than pedalling it. He scootered the bicycle to the pedestrian crossing running north across Casino Street to the northern corner of the intersection. He stopped at the pedestrian crossing. He looked ahead and saw the truck driven by the first appellant travelling south in Union Street at a distance of about 7 metres before it made a right-hand turn to enter Casino Street. He saw the right-hand turn indicator operating. Knowing that the truck would turn right he moved on to the crossing for a distance of about 1 or 2 metres. He became aware that the truck was continuing into the right-hand turn. He stopped moving across the crossing. The truck just kept coming towards him without slowing down. It did not stop at the crossing. The plaintiff did not move and the truck collided with him and the bicycle at a point where the back wheels on the near side of the truck were. Those wheels ran over the plaintiff’s leg. The plaintiff denied that he had ridden straight out from the paved area adjacent to the pedestrian crossing into the rear wheels of the truck. He stated that he did not collide with the truck, the truck collided with him.

5 In a statement to the police given on 17 May 1999, two months after the accident, the plaintiff said that after the interlude with his friends he decided to continue on to the post office in Union Street. He put one foot on the pedal of the bicycle using the other to push along.

“I reached the edge of the crossing at the corner of Union and Casino Streets, intending to cross Casino Street and along Union Street to the post office …. I stopped a couple of metres from the edge of the crossing and looked north along Union Street to check the traffic. I noticed a truck travelling along Union Street in a southerly direction just back from the intersection … I thought the crossing was clear, so I continued out onto the roadway and was about half way across the southern side of the crossing when I realised the same truck was on the crossing and was not going to stop. I looked up and saw the driver of the truck had his head turned away from me. I stopped and the next thing the truck ran over me. I recall the wheels going over my leg.”

6 The southern end of the pedestrian crossing abutted a raised paved footpath as wide as the crossing which continued south for some metres to meet the edge of the footpath on the corner of Union and Casino Streets. On either side of this paved footpath was a landscaped area planted with clumps of native grass about a metre high and grass trees which were higher. The footpath around the corner of Union and Casino Streets was at a level lower than the paved footpath. From the intersection Casino Street does not run at a right angle in a westerly direction but curves from the western side of the pedestrian crossing to the left or south-west. Judge Sidis noted that a diagram which was in evidence did not show the turn to the left which vehicles were required to make after turning right into Casino Street. The intersection was a busy one. Casino Street was the main road to Kyogle.

7 Mr Keam said that when he approached the intersection he saw a vehicle travelling towards him in Union Street about 200 to 250 metres to the south. He assessed that he had adequate time to make a right-hand turn before this vehicle reached him. He looked to his right and saw a person at the northern end of the pedestrian crossing. He looked at the southern end of the crossing and noted there was no one there. He looked to his right again and there being no obstructions he proceeded to turn right at the intersection and to cross the pedestrian crossing. He noted a bump in the rear axle as if he had hit a pot-hole or gutter. He looked in his rear vision mirror and saw the plaintiff lying about 2 metres from the kerb on the pedestrian crossing on the western side. By then he had driven the truck completely over the crossing. He pulled over, stopped and ran back to attend to the plaintiff. Mr Keam’s truck was a bogie axled tip truck. The sitting position for the driver was elevated.

8 Mr Keam gave evidence that there was no one on the pedestrian crossing or on the adjacent paved area when he began to make his turn or at any time when he was making it. His speed when he made the turn was 25 km/hr. He had slowed to this speed before making the turn. He had not slowed at the pedestrian crossing. There was a space between the eastern edge of the pedestrian crossing and the alignment of Union Street sufficient for a vehicle to stop in before proceeding through the pedestrian crossing. Mr Keam said he had a clear view of the paving at the junction with Casino Street and could see the southern side of Casino Street when he was looking straight ahead in Union Street before making the turn. He said there was no one there. Half way through making the turn he was looking directly at the southern end of the pedestrian crossing where it met the paved area. He said there was definitely no one there. He denied that he was looking to his right as he took the turn because of his concern for the person he saw at the northern end of the pedestrian crossing. He denied that he had turned quickly into the intersection to avoid the vehicle which was travelling north towards him in Union Street. He denied that he was looking into his offside rear-vision mirror because he was concerned that his offside rear wheels would collide with the concrete island in the centre of the crossing. He said there was no reason for him to have stopped or to have slowed down.

9 Mr Keam relied upon the evidence of two bystanders, Brett and Paul Scotchmer (a son and father respectively). Brett Scotchmer was standing in front of a butcher’s shop on the northern side of Casino Street. He was asked what had happened and what he saw. He replied:

“Well, I looked up and I seen a, like a double axle truck type thing, like a gravel truck, like going over the crossing and then, next minute, the truck kind of went up in the air and there was a kid that was, had ran straight into the back of the truck. The truck pulled up just up the road.”

10 Asked whether when he looked up he saw the boy before the collision, he answered:

“Yes. Oh, well, as I looked – as I was watching the truck go over the crossing it was – the kid was coming towards the truck, like heading to approach the crossing.
Q. What was he doing? A. He was riding on his pushbike, like, going at a, you know, fairly steady pace.
Q. Where was he riding his pushbike? A. He was, oh well, he was on the footpath, going past the Station Hotel heading towards Hurford’s so that‘d be heading north, I suppose, he’d just come up --
Q. What did you see him do? A. He was just riding his pushbike, heading towards the crossing and then, as he was heading towards the crossing, the truck was going past the crossing and just there was no indication of the kid actually wanting to stop or anything, just trying to –”

11 The witness did not see the boy stop at any time. Asked what he saw him do, Brett Scotchmer replied:

“Just kind of, like a crash course, straight into the truck, like.
Q. What part of the truck? A. The back part of the truck. The front of the truck was over the crossing, as I explained to the policeman, and that’s where he hit the back part of the truck, the back wheel area, and then the truck went up in the air, like, as the truck drove over something and then the truck pulled up, just up the road, about 20 metres or so up the road, and then it was all –”

12 Asked how far onto the pedestrian crossing the boy was when the collision occurred he said he would have been only a metre onto the crossing. Brett Scotchmer said he could see the crossing as clear as day.

“When I seen it the truck was over the crossing, was on the crossing already and the boy just ran straight into the crossing. It was – ride the pushbike and it just went – he just went straight into the back wheel … That was when the truck went up into the air …”

13 Asked what caused him to look up Brett Scotchmer said:

“The commotion that was happening there. The truck came around the corner and I was just standing there looking.”

14 The witness was cross-examined about his ability to see the child going into the pedestrian crossing from where he was standing. A sequence of events was put to him as follows:

“Q. That the young boy approached the pedestrian crossing, he got to a point where he observed the truck at the intersection, he stopped, saw that the truck was at the intersection, then, as the truck came around the corner, he proceeded on to the pedestrian crossing and was struck by the back portion of the truck. You agree that’s possible? A. It’s possible but that’s not what happened, no.”

15 When it was put to him that the first time he saw the plaintiff was when he was at the corner, that is the corner just abutting the pedestrian crossing, he said “yes”.

16 Paul Scotchmer, who was with his son, was asked when he first saw the young boy on the pushbike. He said:

“After the truck had just gone past the intersection. He come out along Casino Street.”

He said he was riding his pushbike and hit the truck. He did not stop at any time. He was asked where the dump truck was situated in relation to the pedestrian crossing when the collision occurred. He said:

“He was three quarters past the intersection. He’d crossed over the, like, three quarters of the truck was past the pedestrian crossing.”

He also was cross-examined about his ability to see the boy.

“Q. …Because of the fact that the dump truck was three quarters of the way through the intersection at the time you first saw the young boy on the bike, I suggest to you you could not have seen the point of impact, correct? A. Well, yes.
Q. You would agree that you first saw the plaintiff, the young boy, on the paved area of Union Street just before the intersection? A. Yep.
Q. Agreed? A. Yeah.

Q. With the second that, or one or two seconds, split, within a short period of time, the collision occurred? A. Yep.”

17 The plaintiff tendered a report dated 22 January 2001 from a chartered engineer, Ray Sargent, who expressed the opinion:

“…that the intersection as it existed on 25/3/99 did not provide adequate pedestrian safety due to the potential for the view of drivers travelling south and turning right from Union Street into Casino to be impeded due to the following;
(a) Vehicles standing at the ‘Give Way’ sign in Casino Street waiting to turn into Union Street.
(b) The footpath being approximately 440mm lower than the pedestrian crossing and the landscaped area.
(c) The height of the vegetation and the mound on which it is located adjacent to the crossing.
(d) The nature of the vegetation on the mounded landscaped area, particularly the height of the grasses and ‘Grass Trees’.
(e) The shadow cast by the awning of the Station Hotel.”

18 The Council tendered a report of 27 April 2001 from Michael Griffiths, a Bio-Medical and Mechanical Engineer, with expertise in road safety and on scene crash investigation, particularly the study of crashes where children were injured. Mr Griffiths expressed the view that a pedal cyclist would have been visible to an approaching truck driver when the pedal cyclist was approximately 12 metres from the point of impact. That opinion was predicated on the paved pathway extending for eight metres from the edge of the footpath to the southern edge of the pedestrian crossing and the point of impact being a further four metres north. A drawing in the police notebook suggests, by reference to gouge marks in the paving of the pedestrian crossing, that the distance from the edge of the pedestrian crossing to the point of impact may have been less than four metres.

19 Later in his report Mr Griffiths said that the approaching pedal cyclist would have been visible to the driver of the truck for a distance of “more than 12 metres”. He assumed that the plaintiff was travelling at a speed equivalent to that of a fast running adult, say, 15 km/hr and therefore travelling at approximately 4 metres/second. This meant, he said, that the plaintiff would have been visible for approximately 3 seconds prior to impact with the truck.

“A truck driver who was reasonably alerted, and particularly as he was approaching a pedestrian crossing, ought to have been able to detect the presence of a pedal cyclist in a time of 1.2 to 1.5 seconds.
From a speed of 25 km/hr, with an effective tyre to road surface braking co-efficient of friction of 0.6, he should have been able to bring his vehicle to a stop after the commencement of braking phase, in a time of approximately 1.2 seconds.”

20 Mr Griffiths concluded:

“Overall, this meant that he should have been able to perceive and respond to the pedal cyclist in a time of not more than 1.5 seconds, brake his vehicle to a stop in a time of approximately 1.2 seconds, so that overall, between the first emergence of the cyclist as a hazard, and bringing his truck to a stop, the potential time should have been in the order of 2.7 seconds.
As this is less than the time that the cyclist was likely to have been within the line of sight of the truck driver, my analysis does not show how the vegetation on the landscaped area outside the hotel could have been a significant causal factor in this particular incident.”

21 The issue between the appellants and the plaintiff was whether shortly before the accident the plaintiff was standing either close to or on the intersection in a position on all accounts clearly visible to Mr Keam as he came to make his right-hand turn and yet Mr Keam failed to see him or whether the plaintiff had ridden his bicycle at some speed and from a position where he could not be seen by Mr Keam, or could not be seen until it was too late to avoid a collision, onto the pedestrian crossing and to the point of impact. If Mr Keam should have seen the plaintiff on or near the pedestrian crossing when he began his turn from Union Street a finding of negligence against him was, it seems to me, inevitable. He should have been able to stop before reaching the pedestrian crossing. On the other hand, if the plaintiff drove his bicycle fast and recklessly onto the pedestrian crossing into the back of the truck either Mr Keam was not negligent or, if he was, there should be a substantial deduction for contributory negligence.

Reasons for judgment in District Court

22 Judge Sidis made what she described as “the following findings on liability”:

“1. The evidence of Brett and Paul Scotchmer has been discounted for the reasons that there are three characteristics of the intersection which would have affected their capacity to view the precise path of travel of the plaintiff.
The footpath, leading to the paved area adjacent to the pedestrian crossing, was at a lower level than the paved area.
The view of the footpath and of the paved area, even at today’s date, is obscured by vegetation and the soil mound in which the vegetation is planted.
According to the evidence of Mrs Walsh, particularly the evidence which she gave in cross-examination by counsel for the first and second defendants, the vegetation on the south-western side of the crossing was of greater height on the date of this accident. And finally the left hand turn away from the pedestrian crossing would have made it improbable that they could have seen the precise point of impact. Mr Paul Scotchmer was prepared to concede that this was so. For that reason I have concluded that it is unlikely that Mr Brett or Mr Paul Scotchmer saw the plaintiff at any distance much further back than the point at which the raised paved area abuts the pedestrian crossing.
2. Neither the first defendant nor the plaintiff complained of any obstruction of view by vegetation, other motor vehicles or shadows. The plaintiff said he saw the truck clearly from some distance away. The first defendant said he could see the pedestrian crossing, and the southern side of Casino Street, at the commencement of his turn into Casino Street and when he was travelling over the pedestrian crossing. Mrs Walsh said that the view of the footpath was less obstructed by vegetation when she was seated in the elevated position of her van. The seated position of the first defendant in the tip truck was considerably more elevated.
I find, therefore, that the vegetation on the southern side of the intersection did not cause or contribute to this accident.
3. The plaintiff’s version of the accident, which he gave to the police in May 1999, two months after the accident, is more likely to be accurate than that which he gave to the Court two and a half years later. This version indicates that he entered the pedestrian crossing when the truck was moving towards him and that he continued to move forward to about halfway across the southern side of the crossing. At that point he realised that the truck was on the crossing. He did not stop until he looked up and saw the first defendant looking away from him. At this point the plaintiff realised that the truck would not stop and the collision took place with the rear wheel.
4. It is probably this stage of the plaintiff’s journey that the Scotchmers witnessed, that is, his entry on to the pedestrian crossing at about the same time as the front wheels of the defendant’s truck travelled over it.
5. The first defendant was in fact looking to the right when he travelled over the intersection. On his evidence he was concerned about a pedestrian at the northern end of the pedestrian crossing.
6. Brett and Paul Scotchmer stated that the plaintiff was travelling at speed. However, he was an eleven year old boy riding a small bicycle. If he had stopped before entering the pedestrian crossing, as he stated, and then scootered on to it in my view it is unlikely that he would have gathered significant speed before the point of impact. If he did not in fact stop he had travelled a short uphill section from the lower level of the footpath to the paved area before entry on the pedestrian crossing. In either case Mr Griffiths’ estimate of a speed of fifteen kilometres an hour is, in my view, conservative and well within the expected range. In those circumstances he ought to have been visible to the first defendant who said he had a clear view.”

23 Judge Sidis stated her conclusions as follows:

“Mr Griffiths’ evidence that the plaintiff was visible from a distance of twelve metres has not been challenged. I have accepted this evidence and concluded that the first defendant either did not look south into Casino Street before travelling over the pedestrian crossing or did not pay sufficient attention if he did look in that direction.
On the first defendant’s evidence at a speed of twenty-five kilometres an hour had he seen the plaintiff he would have been able to stop. I therefore find the first and second defendants negligent in respect of this accident.
As far as the contributory negligence is concerned the plaintiff, then an eleven year old child, was entitled to expect that he would be seen and that he would be able to cross the pedestrian crossing with safety.
I find that he rode his bicycle on to the pedestrian crossing with that expectation. I find that at the age of eleven it was not negligent of the plaintiff to have failed to wait until the first defendant’s truck actually stopped before entering on to the crossing.”
Grounds of appeal

24 Judge Sidis dismissed the Council’s cross-claim against the appellants. The Council does not appeal against that order. Part of the appellants’ submissions was directed to the findings in favour of the Council on the plaintiff’s claim against it. Judge Sidis found that the vegetation on the southern side of the intersection did not cause or contribute to the accident and ordered a verdict for the Council against the plaintiff. The plaintiff does not appeal against this order. Ground 19 of the amended notice of appeal is that the trial Judge erred in not giving leave to the appellants to file in Court a cross-claim against the Council seeking indemnity and contribution. This was a discretionary decision and no material was advanced suggesting any error by her Honour in making it. The ground must fail and with it any argument, contrary to the findings below, that the vegetation played any part in causing or contributing to the accident.

25 The remaining eighteen grounds of appeal, which were directed only to liability, can be summed up under the following headings:

· That the trial Judge erred in preferring the version of events given by the plaintiff in his police statement without giving sufficient reasons for doing so; grounds 1 – 5.

· That the trial Judge erred in failing to make necessary findings upon the question of liability such as whether Mr Keam’s truck had entered the crossing before the plaintiff did, whether there was anything about the movement of the plaintiff towards the crossing that ought to have alerted Mr Keam to the fact that he was about to or could enter the crossing notwithstanding the proximity of the truck, whether the plaintiff was riding or “scootering” his bicycle as he approached the crossing, whether he stopped before entering the crossing, whether Mr Keam’s vehicle would have been able to stop when the plaintiff moved from a stationary position into the crossing, what would and should have been observable by the driver of the truck had the plaintiff been observed when 12 metres back from the crossing and whether any observations at that point or thereafter should have brought about immediate emergency braking; ground 6.

· Similarly that Judge Sidis did not make all relevant and necessary findings upon contributory negligence; ground 7.

· That her Honour failed to consider how the plaintiff could have been hit by the rear wheels of the vehicle on the account he gave; ground 8.

· Grounds 9, 10, 11 and 12 were directed to visibility and restriction of view.

· Ground 13 related to the evidence of the Scotchmers, particularly that the truck was on the crossing when the plaintiff rode on to the crossing.

· There followed general claims about insufficient reasons and failing to consider issues and questions about negligence and contributory negligence; grounds 14 – 18.

26 Mr Shore of counsel put the appellants’ argument forcefully. Ground 6 was pivotal. It was urged that the trial Judge either did not make findings where there was a conflict in the evidence or if she did failed to give sufficient reasons. If this be right, the result, a new trial, is most unfortunate. It was open to the trial Judge to accept the plaintiff’s account of what had occurred. However, nowhere did her Honour say clearly that she did so, only that she preferred one version he had given to another. It was open to her Honour to reject the Scotchmers’ account as a reliable account of what happened. I think the appellant can fairly claim that in the six numbered paragraphs I have quoted, which her Honour described as findings, there were only two unequivocally stated, that the vegetation did not cause or contribute to the accident and that Mr Keams was “in fact” looking to the right when he travelled over the intersection. Mr Shore submitted that the trial Judge fundamentally misapprehended the Scotchmers’ evidence which was consistent with both parties entering the crossing at about the same point of time. He pointed out that it was difficult to explain how the plaintiff could be hit by the very rear of the truck if he had been stationary at the time of impact. While he was standing on the paved area before entering the pedestrian crossing the approaching motorist would not have the slightest inkling that he was about to step out onto the crossing. It was not clear from para 6 in the findings whether or not the trial Judge accepted that immediately before the impact the plaintiff was travelling at speed. The trial Judge failed to make findings and then consider on the basis of them whether the driver could have had any chance of stopping.

27 I accept that in the numbered paragraphs I have quoted her Honour intended to make findings of fact. In para 4 she said that “probably” the Scotchmers witnessed the plaintiff’s entry onto the pedestrian crossing at about the same time as the front wheels of the defendant’s truck travelled over it. This conclusion is consistent with the plaintiff’s version to the police. It is certainly not consistent with an acceptance of the Scotchmers’ account of what happened which it was open to the trial Judge to reject in whole or in part.

28 I understand the trial Judge to find that the Scotchmers did not see the plaintiff much before he reached the pedestrian crossing. She accepted the plaintiff’s version of the accident given to the police in May 1999 which explains para 4 of the finding about what the Scotchmers saw. Her Honour rejected the suggestion that the truck was already on the crossing when the plaintiff reached the crossing. She also rejected the Scotchmers’ evidence that the plaintiff was travelling at speed. There is more difficulty about the last two sentences of para 6. By them I think her Honour meant that assuming a maximum speed of 15 kilometres an hour across the paved area to the pedestrian crossing the plaintiff would have been clearly visible to Mr Keam. If the plaintiff was going more slowly and had stopped before entering the pedestrian cross, Mr Keam should have seen him even earlier and for a longer period.

29 Though her Honour did not refer to this, Brett Scotchmer’s evidence in part suggests that his attention was originally attracted by the commotion at the pedestrian crossing and therefore at, or very shortly after, the moment of impact. If this be right his evidence of what happened before the impact was reconstructed.

30 If there was a difficulty with the plaintiff’s account of what happened it centred on how, while he was standing still on the pedestrian crossing, he was missed by the front near side wheel of the truck and run over by the back near side wheels. No particular attention was directed to this though it is probably obvious that if the truck was proceeding straight ahead the plaintiff would only have been hit by the rear wheels if he had, at that moment, been moving towards the truck. However, as Judge Sidis pointed out, vehicles were required to make a turn to the left after turning right into Casino Street to proceed down that street. Photos 4 and 6 in Mr Griffiths’ report show this clearly. Therefore, almost immediately after the front wheels of the truck crossed the pedestrian crossing, it would have been necessary for Mr Keam to turn the vehicle towards the left to proceed on down Casino Street. If such a turn were made, as it must have been at about that time, it would explain why, even if the plaintiff was stationary, the rear wheels of the truck twisted towards him and his bicycle and ran him over. There was no evidence of this nor was it put to Mr Keam in cross-examination. But this is the consequence of the topography of the street. It cannot be said that the plaintiff’s account of what happened should be rejected because he could not have been missed by the front wheel and run over by the rear wheels of the truck if he had been standing still when the front wheels passed him.

31 It was open to Judge Sidis to accept the account of the accident given by the plaintiff in the statement he made to the police. That was a statement made within two months of the accident. The plaintiff’s evidence was that he saw the truck and was aware that it intended to turn right. He moved on to the crossing knowing that the truck would turn right. Mr Keam’s evidence was that he never saw the plaintiff until after the accident. Her Honour found, and it was open to her to find, that Mr Keam was in fact looking to the right when he travelled over the intersection. The trial Judge accepted Mr Griffiths’ evidence that the plaintiff was visible from a distance of 12 metres, by which I understand her Honour to have meant 12 metres from the point of impact and that travelling at a speed of 25 km/hr if Mr Keam had seen the plaintiff he would have been able to stop.

32 It is unarguable that if the plaintiff came on to and stood on the pedestrian crossing at or before the time Mr Keam began to make his turn to the right and, as is his evidence, Mr Keam never saw him, the appellants are liable and there could be no question of contributory negligence. It is perhaps regrettable that the trial Judge did not make her findings more plainly. It may be that she left open as an alternative finding that the plaintiff was approaching the pedestrian crossing, scootering, and came on to it at a point when Mr Keam’s truck was in the course of making its turn. But again Mr Keam’s evidence was that he never saw the plaintiff. It was not that he saw the plaintiff too late and was unable to stop. The plaintiff had right of way over the pedestrian crossing and it was not negligent for the plaintiff to decide, even though he knew that the truck intended to turn towards the pedestrian crossing, that he should proceed. He could reasonably expect the truck to give way to him which undoubtedly it would have done if Mr Keam had been keeping a proper lookout and seen the plaintiff.

33 Clearly her Honour rejected the evidence which suggested, perhaps, that the plaintiff recklessly rode on to the pedestrian crossing into the side of the truck.

Order

34 In my opinion, the appeal should be dismissed with costs.

35 BEAZLEY JA: I agree with Sheller JA.

36 HODGSON JA: I agree with Sheller JA.

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