Knox v Pitney
[2001] TASSC 145
•20 December 2001
[2001] TASSC 145
CITATION: Knox v Pitney [2001] TASSC 145
PARTIES: KNOX, David John
v
PITNEY, Fiona
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 106/2000
DELIVERED ON: 20 December 2001
DELIVERED AT: Hobart
HEARING DATE/S: 26 August 2001
JUDGMENT OF: Crawford, Slicer and Evans JJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant: T J Williams
Respondent: K B Procter SC
Solicitors:
Appellant: Gunson Pickard & Hann
Respondent: Murdoch Clarke
Judgment ID Number: [2001] TASSC 145
Number of paragraphs: 52
Serial No 145/2001
File No FCA 106/2000
DAVID JOHN KNOX v FIONA PITNEY
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
SLICER J
EVANS J
20 December 2001
Order of the Court
Appeal dismissed
Serial No 145/2001
File No FCA 106/2000
DAVID JOHN KNOX v FIONA PITNEY
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J 20 December 2001
I have had the opportunity of reading the draft reasons for judgment of Slicer J and with respect I agree with his Honour's reasons for rejecting each of the grounds of appeal. I wish to make a few of my own comments.
It was the appellant's case that when his motor cycle was at or extremely close to the give way line at the entrance to Talune Street, he saw on his left the respondent's car approaching along Talune Street approximately 18 to 20 metres away. His evidence was that at that point the respondent's car was still on its left half of Talune Street and travelling behind the Pretymans' vehicle, which was indicating its driver's intention to turn to the left into a private driveway. The Pretymans' vehicle had not quite reached the driveway, but it had commenced its turn, and its front wheel was just touching the gutter. Within a fraction of a second of him first seeing the respondent's car, the appellant saw it pull out from behind the Pretymans' vehicle to overtake and proceed onto the right side of Talune Street, to a point where only a quarter of it remained on the left side of the road. By that point in time, the appellant said, his front wheel was in Talune Street. Realising that a collision between his motor cycle and the respondent's car was imminent, he applied his brakes and used his body weight to bring the motor cycle towards the gutter. He thought that because he did so his front wheel lost traction and he and the motor cycle fell to the ground. He estimated that when he entered Talune Street his speed was between 5 to 10 kph and slowing. It is his case that he and the motor cycle, on its side, came to rest in Talune Street only approximately 1.5metres past the give way line and almost directly opposite the driveway into which the Pretymans' vehicle was turning.
Mr and Mrs Pretyman placed the appellant and his motor cycle, when they came to rest, further back towards or into Eldon Street, that is to say not as far out as 1.5 metres from the give way line. That would disadvantage the appellant's case and I am content to assume the facts in that regard in his favour. Nevertheless, I unhesitatingly conclude that his version of the events could not possibly be correct, for in the course of travelling about 1.5 metres, at the outset of which he was travelling at possibly 5 to 10 kph, he was able to observe all of the events to which I have referred, make a decision to stop and then do so. Far more consistent with the position of his motor cycle after coming to rest was the evidence of Mrs Pretyman and the respondent.
Mrs Pretyman gave evidence of seeing the appellant and his motor cycle still in Eldon Street some distance back from the give way line, probably 5 to 10 metres, she thought. Because of the speed of the motor cycle, which seemed fast to her, and the direction of it, she became fearful. She believed that it was not possible for the motor cycle to stop at the junction, and because it was also on a lean she was afraid that it might not make the left turn into Talune Street but instead slide into the vehicle in which she was travelling. Because of her perceptions she said to her husband "quick, turn".
The respondent's evidence described events which were similar to those described by Mrs Pretyman. She said that she went to overtake the Pretymans' vehicle as it was turning into their driveway. She did not believe that her vehicle crossed the centre of Talune Street by more than a few centimetres as she did so. As she passed the other vehicle she looked to her right up Eldon Street, whereupon she saw the appellant approaching on his motor cycle. She estimated that he was 10 metres or thereabouts back up Eldon Street from the give way line and it appeared to her that he was out of control and going to be involved in an accident. The motor cycle was wobbling, she said.
Having regard to all of the evidence, I conclude on the balance of probabilities that the cause of the accident was that the appellant was travelling at a speed which was too fast and which prevented him from being able to stop before the give way line and give way to traffic travelling in Talune Street. He first looked for traffic to his right and the impression I have gained is that having seen no traffic in that direction, he determined to proceed round the corner to his left into Talune Street, incorrectly assuming that nothing would be obstructing his path. In a signed statement to a loss assessor made less than four weeks after the accident, the appellant said that having looked to the right and seeing nothing, he looked to the left and saw the Pretymans' Toyota indicating to turn left into a private driveway (in Talune Street almost opposite Eldon Street). He continued that "I began to merge into Talune Street as I thought it was clear and I then observed a silver Honda sedan registered number RC 4626 travelling around the right hand side of the Toyota onto the incorrect side of the road travelling toward my direction of travel". He stated that he was then forced to take evasive action to avoid a collision and braked heavily, resulting in loss of control of the motor cycle and he dropped it on its left side, sliding for a short distance. It is apparent from that version of the events that the appellant made a positive decision to enter Talune Street, turning to the left as he did so, at a time when he could not see whether the way was clear.
Counsel for the appellant conceded that what the respondent did in overtaking the Pretymans' vehicle was not inherently dangerous if there were no vehicles in her line of sight at that time. He said that it was the appellant's case that she was negligent because she commenced to overtake, without indicating, at a point in time when she could see the appellant or ought to have seen him. Because the appellant's version of the events could not be accepted, for the reasons I have explained, it was not established by the evidence that when the respondent commenced to overtake she should have seen the motor cycle.
Attempts were made by the appellant's counsel to find support for his client's version of the events from some pieces of Mrs Pretyman's evidence in particular, which he submitted supported the appellant's case that the respondent was much further back from the junction when the appellant entered it, than she was prepared to admit. I regarded counsel's efforts in that regard as highly selective. They ignored the essential thrust of Mrs Pretyman's evidence that she saw the appellant on his motor cycle some distance up Eldon Street, travelling at such a fast speed and on a lean that she became fearful.
Mrs Pretyman did not see the respondent's vehicle at any time, nor did she see the appellant and his motor cycle fall to the ground. The apparent reason for both of those things was that her vehicle had turned into the driveway and therefore she was prevented from seeing both the respondent's vehicle passing behind her and the motor cycle falling over. The respondent's evidence was that as she passed the back of the Pretymans' Toyota she looked up Eldon Street and saw the motor cycle approaching, and just after crossing the junction (she indicated on a plan it was just before a point about 10 metres past the junction) she saw (back over her right shoulder) the appellant fall off his motor cycle. A conclusion which is open from the evidence is that at the points in time to which the respondent referred she was not as far along Talune Street as she thought. In other words, it is open to conclude on the evidence of Mrs Pretyman in particular, that when the respondent first saw the motor cycle up Eldon Street she was not directly adjacent to the Pretymans' vehicle in the course of passing it but at best a little behind it but possibly about to come alongside it, and that when the respondent saw the appellant fall off his motor cycle she may not have been as far past the junction as she thought. But such conclusions do not support the appellant's case that when he was at or extremely close to the give way line the respondent was still some 18 to 20 metres along Talune Street from the junction.
I would dismiss the appeal.
File No FCA 106/2000
DAVID JOHN KNOX v FIONA PITNEY
REASONS FOR JUDGMENT FULL COURT
SLICER J
20 December 2001
The appellant was the plaintiff in an action following a motor vehicle accident which occurred at the junction of Eldon and Talune Streets, Lindisfarne, on 24 December 1994. The appellant had driven his motorcycle down Eldon Street intending to turn left into Talune Street. The respondent was driving west along Talune Street following a Toyota Hilux dual cab driven by Mr Pretyman, with his wife a passenger. Eldon Street ends at its junction with Talune Street and the Pretyman's residence was virtually opposite the point where the two streets junctioned.
As Mr Pretyman approached the entrance to his residence, he slowed his vehicle and indicated that he was intending to turn left. As his vehicle commenced to enter the driveway, the respondent, who had also slowed her vehicle, moved to her right in order to overtake. As she did so, the appellant at or near the junction, fell from his motorcycle and was injured.
The appellant was subject to a requirement to "give way" to traffic in Talune Street. His view to the right or western end of Talune Street was partly obstructed by a fence and the learned trial judge was unable to make a finding as to his visibility to the left or eastern side. That mattered little because, as the learned trial judge found, "the plaintiff said that he did not look left until he was able to see that nothing was coming on his right, it follows that he took no view to the left, until he was virtually on the 'give way' line".
The appellant's case was that he was driving slowly down Eldon Street and when some 60 - 80 metres from the junction, he further slowed by use of gears and brake. He claimed his speed to be about 10 - 15 kph when 3 - 4 metres from Talune Street. At that stage, having ascertained that no vehicle was approaching from his right, he saw the Pretyman's vehicle commence its turn, noticed the following vehicle, and because of the sudden manoeuvre of that vehicle, applied his brakes, pulled left and fell from his motorcycle. He alleged that the respondent had failed to keep a proper lookout, drove at an excessive speed given her proximity to the Pretyman's vehicle, and veered to the incorrect side of the roadway causing him to take evasive action which resulted in his injury.
The learned trial judge found for the respondent. He resolved the differing accounts given by the appellant and the respondent by a process of analysing the evidence of Mr and Mrs Pretyman (whom he accepted as accurate witnesses), prior inconsistency on the part of the appellant, and the general position of the respective vehicles after the accident. He was unable to find "the extent to which she (the respondent) crossed over the centre of the road", but was "not prepared to prefer the plaintiff's description of three quarters of the defendant's vehicle being on the incorrect side of the road for he had only the briefest moment to observe the position of the car on the road before he was preoccupied with trying to avoid falling off his bike".
However, in relation to the passing manoeuvre, he found that the respondent "commenced this manoeuvre when she was something in the order of 12 metres back from the Prettymans' (sic) driveway entrance. From that point on the roadway she would not have been able to see up Eldon Street much past the 'give way' line painted on the roadway".
Having examined the evidence of Mr and Mrs Pretyman, he concluded:
"I accept all of that evidence and in consequence reject the plaintiff's account of his speed as he approached the intersection. I find that the plaintiff was travelling in excess of the speed he claimed he travelled, but the evidence does not permit me to make any more precise finding with respect to this aspect of the case. However, having regard to the limited visibility of any traffic that might be travelling either way in Talune Street, any speed in excess of that claimed by him reduced his capacity to obey the requirements of the 'Give Way' sign."
and in relation to the position of the motorcycle after the accident, he found that:
"… having regard to the finding that I have made with respect to the plaintiff's speed, the probabilities are that he saw the defendant's car when he was something in the order of 10 metres back from the intersection. From that point he would not have been able to see her until a fraction before she began to pass across the junction. For some reason, perhaps because he then saw the defendant on what appeared to him to be right over the incorrect side of the road, he began to brake heavily. These findings are consistent with the evidence of Mrs Prettyman (sic) and the evidence of the defendant."
The appellant claims error on the grounds:
"1That the learned Trial Judge erred in finding that the Appellant's speed was excessive in the circumstances.
2The learned Trial Judge erred in failing to make relevant findings of fact with respect to the:
(a)position on the roadway of the Respondent's motor vehicle immediately prior to the accident;
(b)position on the roadway of the Respondent's motor vehicle at the time of the accident.
2AThat His Honour erred in holding that having regard to the findings he made with respect to the Plaintiff's speed, the probabilities are that the Plaintiff first saw the Defendant's car when he was something in the order of 10 metres back from the intersection.
3That the learned Trial Judge erred in failing to reject the evidence of the Respondent in its entirety.
4That the learned Trial Judge erred in failing to accept the evidence of the Appellant with respect to the speed at which the Appellant's motor cycle was travelling when there was no evidence to the contrary.
5The learned Trial Judge erred in law in holding that:
(a)the Respondent was not obligated to delay pulling out from behind the Pretymans' turning vehicle until she could see up Eldon Street unless she went right over onto her far incorrect side of the roadway.
(b)the Appellant was required to establish the Respondent's overtaking manoeuvre deprived him of sufficient room on Talune Street to have completed his left hand turn at a slow speed."
Regard is had to the principles of appellate review of findings of fact as stated by the High Court in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 493 - 494:
"A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds'. Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury …"
a statement repeated in Liftronic Pty Limited v Unver (2001) 75 ALJR 867.
That test will be applied in the determination of this appeal.
Speed
Grounds 1 - 4 are considered together. The finding of the learned trial judge was that the motorcycle was travelling at a speed faster than that claimed by the appellant. He concluded at par20 that:
"… the agony of the moment was created by him approaching the intersection at a speed that deprived him of the opportunity to properly assess the situation and to take appropriate action to avoid coming off his motor bike."
He had ample evidence from the respondent and, in particular, Mrs Pretyman, to warrant that finding. The respondent stated that when she first saw the appellant he was "Ten metres or thereabouts back from the edge of the road, where the lines go. And he looked to be - looked like he was out of control at that stage. … it was just wobbling".
That account was consistent with one provided in a statement made to a loss assessor in January 1995. Mrs Pretyman was a passenger and had not been distracted by the necessity of manoeuvring a vehicle. She saw the motorcycle when it was reasonably close to the intersection and stated that "it was travelling at a reasonable speed. … It more had a lean to the kerb side as if it was intending to turn towards Lindisfarne".
Mrs Pretyman described her method of assessing its speed by reference to the effect her observation had on her in the following terms:
"The lean on the motor bike, and that it didn't appear to me as if it could actually stop at the intersection, and it would come straight out on to Talune Street. And because of the lean it had, I was rather fearful it may not make the turn and slide into us, or come straight into the ute. Well not straight into the ute because he was leaning. But I just - I just had this horrible feeling that may be -"
and in cross-examination said:
"… he did seem to be moving reasonably quickly for the position he was in - … down the road, where - where it was a give-way sign. … he seemed to me to be moving quite quickly."
The appellant's evidence as to speed given at trial was vague and contradicted his answers to interrogatories. In his affidavit, he stated that he was travelling at:
"Approximately 10 to 15 klms per hour prior to braking heavily in order to avoid the collision. He estimates at the moment of the fall he was travelling at 0 kilometres per hour."
It is difficult to reconcile the answer that he was stationary at the time of falling from his motorcycle with the injuries he sustained, and the damage caused to his motorcycle.
The appellant was subject to a "give way" rule which required him to observe certain procedures. The circumstances of the accident, especially his failure to look to the left, show that he had not retained the capacity to "give way". His estimate that the motorcycle was travelling at a speed of 10 - 15 kms when he crossed the "give way" line was itself evidence that his speed was excessive.
The findings made by the learned trial judge on the issue of speed were permitted by the evidence and no error in his reasoning process or conclusion has been shown.
Position
The learned trial judge did make necessary findings in relation to this issue. He found that the respondent's vehicle had moved to, and over, the centre of the road, but that he was "unable to make a finding as to the extent to which" that occurred.
The claimed position of the appellant's motorcycle at the point of fall did not assist in the resolution of the position of the respondent's vehicle. In any event, its position was not so clear. The position of "fluid" on the roadway was not conclusive of position.
The learned trial judge made a finding in rejecting the evidence of both the appellant and the respondent as to position. The evidence permitted a finding in general terms and did not require a conclusion as to the precise position of the vehicle.
Ground 2 ought be dismissed.
Observation
The learned trial judge found that the probability was that the appellant first saw the respondent's vehicle when he was some 10 metres back from the intersection. It is obvious that the appellant had seen something which caused him to swerve. Mrs Pretyman had seen the "lean" of the motorcycle when it was 5 - 10 metres back from the intersection. The appellant had no reason to manoeuvre because of the Pretyman's vehicle. It is impossible in a case such as this for witnesses to describe relative positions down to the last metre. In an answer to interrogatories, the appellant said that he had told Mr and Mrs Pretyman that "he slowed as he approached the corner turned and took evasive action in order to avoid a collision".
In another answer he said that he had braked heavily and "applied his brakes approximately 6 metres from the corner" and made a second braking application "when he swerved to avoid a collision" and estimated that "the second he braked he was approximately 2 to 3 metres from the point of the fall".
In another answer he said:
"The Plaintiff did not see the Defendant's vehicle before 18 to 20 metres from the corner of Talune and Eldon Street. The Defendant's vehicle was being driven directly behind another vehicle which turned into a private driveway which was almost immediately opposite Eldon Street. The Defendant's vehicle drove around the rear of the other vehicle as it entered into it's driveway, crossing the centre line of the roadway to the Plaintiff's side of the road as the Plaintiff turned the corner into Talune Street. The Plaintiff estimates that the Defendant's vehicle was travelling between 40 to 60 kilometres per hour and that speed remained constant of the Defendant's vehicle and continued over the centre line of the roadway."
In a statement to a loss assessor made in January 1995, he stated:
"As I approached the intersection of Eldon and Talune Streets I indicated to turn left I looked to my right and saw that I was ok to proceed and then looked to my left and observed a white coloured Toyota Hilux duel cab indicating to turn left into a private driveway almost opposite the intersection.
I began to merge into Talune Street as I thought it was clear and I then observed a silver Honda sedan registered No CR 4626 travelled around the right hand side of the Toyota onto the incorrect side of the road travelling toward my direction of travel.
I was then forced to take evasive action to avoid a collision and broke [sic] heavily resulting in the bike losing control and I dropped it on its left hand side sliding for a short distance."
It would appear that the appellant observed many events in a short space of time. The course of the respondent's vehicle, recounted at length, would have taken place during the time he travelled 2 - 3 metres.
The accounts are contradictory, inherently implausible and have the hallmark of reconstruction. The learned primary judge was entitled to disregard his evidence on this point. Ground 2A is not made out.
Evidence of respondent
Counsel for the appellant conducted a detailed critique of the respondent's evidence. The contention that a rejection of portion of the evidence of an "honest" witness requires rejection of the whole does not accord with either "commonsense" or legal principle. Evidence dependent on recollection is often tested by reference to known or easily determined facts. The respondent's evidence was corroborated in many respects by the testimony of Mr and Mrs Pretyman. The import of her evidence was strengthened by the inconsistencies and tenor of the appellant's evidence.
The critique assumes that special significance ought be placed on specific identified pieces of evidence. Some of the matters relied on were transient or peripheral which, even if accepted, did not warrant rejection of the totality of the respondent's evidence. The methodology employed by counsel was selective. There are many processes in a trial which impact on the final determination. There can never be a mathematical formula which determines the outcome. Ground 3 ought be dismissed.
Respective duties
Both parties had a duty of care to each other and each had an obligation when approaching the intersection. The onus of proving negligence on the part of the respondent remained with the appellant at least until a finding as to contributory negligence became necessary.
The appellant was required to establish causation (March v E & M H Stramare Pty Limited (1991) 171 CLR 506). Identification of a series of errors does not assist in a finding of negligence unless and until the issue of causation is isolated. An act of negligence committed before an accident might have nothing to do with the occurrence of injury.
If it was the appellant's case that he was injured by reason of a specific series of acts or omissions, then he was required to prove their occurrence and nexus to the injury. In this case, he was required to prove that the presence of the respondent's vehicle was so close to his path of travel that it created a "dangerous" situation. He was required to establish "that the defendant's (respondent's) overtaking manoeuvre deprived him of sufficient room on Talune Street to have completed his left turn at a slow speed". He failed to do so, and the learned trial judge was correct in holding that he bore the onus of proof.
The existence of a "Give Way" sign governing the conduct of the appellant required him to exercise care in entering the intersection. The issue of competing or concurrent obligations remained a question of fact (Sibley v Kais (1967) 118 CLR 424).
The turning movement of the Pretyman's vehicle was indicated some 10 - 15 metres before the driveway which was opposite Eldon Street. There was no obligation on the part of the respondent to pay particular attention to the presence of vehicles in Eldon Street. When the Pretyman's vehicle commenced its turning manoeuvre, the respondent moved out aware that there was no oncoming traffic. There was no obligation, on the facts established at trial, for her to delay the passing movement until after she had looked for traffic further up Eldon Street.
Conclusion
The conclusion of the learned trial judge ought not be disturbed (Byrnes v Snare (1986) 60 ALJR 507 and Kibble v Smith (2000) 31 MVR 442). None of the grounds of appeal have been established. In my opinion, the appeal ought be dismissed.
File No FCA 106/2000
DAVID JOHN KNOX v FIONA PITNEY
REASONS FOR JUDGMENT FULL COURT
EVANS J
20 December 2001
The appellant suffered injuries when he fell from his motorcycle some 2 metres into the intersection of the T-junction where Eldon Street, Lindisfarne, meets the northern side of Talune Street. Shortly prior to the fall, the appellant was riding his motorcycle in a southerly direction down Eldon Street towards the T-junction. At the same time, the respondent was driving her motor vehicle in a westerly direction along Talune Street towards the T-junction. The respondent's vehicle was travelling behind a dual cab motor vehicle driven by Mr Geoffrey Pretyman, whose wife was a front seat passenger in that vehicle. Mr and Mrs Pretyman resided at 27 Talune Street, the entrance to which property is virtually opposite the mouth of the T-junction, so that if an imaginary line was drawn down the eastern side of Eldon Street across Talune Street, it would enter the Pretyman's driveway. About 12 metres east of the entrance to the Pretyman's driveway, Koluri Court forms a T-junction with the southern side of Talune Street.
Mr Pretyman turned his vehicle left from Talune Street into the driveway of his residence after indicating his intention to make that turn and slowing his vehicle. The respondent, who was driving behind Mr Pretyman's vehicle, slowed as Mr Pretyman made the turn and she moved her vehicle to the right in order to overtake Mr Pretyman's vehicle and continue down Talune Street past Eldon Street.
At about the time that Mr Pretyman and the respondent were undertaking these manoeuvres, the appellant entered Talune Street from Eldon Street with the intention of turning left. As he did so he fell from his motorcycle and suffered injuries. His motorcycle came to a halt approximately 2 metres into Talune Street beyond the give way line marked across the mouth of Eldon Street. He suffered injuries in the fall. Although there was no contact between the respondent's vehicle and the appellant or his motorcycle, the appellant sued the respondent, claiming that his injuries were caused by the respondent's negligent driving. In his statement of claim the appellant alleged that in order to avoid a collision with the respondent's vehicle, he applied the brakes on his motorcycle and took evasive action which caused the motorcycle to slide and fall. The question of negligence was tried as a preliminary issue and the learned trial judge found against the appellant. That decision is the subject of this appeal.
In the course of advancing the various grounds of appeal detailed in the appellant's amended notice of appeal, counsel for the appellant distilled his argument down to a submission that the critical issue was whether, at the time the respondent commenced to overtake Mr Pretyman's vehicle, she could have seen the appellant. Counsel submitted that it was negligent of the respondent to pass Mr Pretyman's vehicle at a time when she should have been aware that the appellant's motorcycle was about to enter Talune Street from Eldon Street. Counsel acknowledged that it would not have been negligent for the respondent to undertake that manoeuvre if, at the time she did so, she was not and could not have been aware of the position of the motorcycle. He identified the key error in the learned trial judge's decision as being his failure to find that as the respondent commenced to pass Mr Pretyman's vehicle, she should have seen that the appellant's motorcycle was about to enter Talune Street.
The substantially unchallenged evidence of Mrs Susan Pretyman was that as her husband made the turn into their driveway, the sound of the motorcycle attracted her attention. She had not previously seen the motorcycle. She looked to her right and saw the motorcycle coming towards the intersection of Eldon Street with Talune Street. She said the motorcycle had to be reasonably close to the intersection for her to see it and she estimated the distance at 5 - 10 metres up Eldon Street. She was unable to estimate the speed of the motorcycle. At different points in her evidence she described the speed of the motorcycle as "a reasonable speed", "quite fast", "moving reasonably quickly" and "moving quite quickly". What is clear from her evidence is that the speed and manner of the motorcycle's movement caused her to fear that it would not stop at the intersection and would crash into the rear of the Pretyman's vehicle. What she saw prompted her to call to her husband "quick". As to what caused that exclamation and her fear she said:
"The lean on the motor bike, and that it didn't appear to me as if it could actually stop at the intersection, and it would come straight out on to Talune Street. And because of the lean it had, I was rather fearful it may not make the turn and slide into us, or come straight into the ute. Well not straight into the ute because he was leaning. But I just - I just had this horrible feeling …".
Mrs Pretyman did not see the respondent's vehicle until subsequent to the incident. Mr Pretyman did. Besides seeing the respondent's vehicle following his vehicle, he said he saw her vehicle pass behind his vehicle as he was entering his driveway. After that he saw the appellant's motorcycle for the first time when he was prompted to look in the rear mirror of his vehicle by his wife's exclamation of concern. At that time he had almost completed the turn into his driveway. He saw the motorcycle in Eldon Street. Mr Pretyman's failure to see the motorcycle prior to this suggests that it could not have been seen from the position in Talune Street where Mr Pretyman commenced the turn into his driveway. This in turn suggests that the respondent, who commenced her overtaking manoeuvre at about the time Mr Pretyman commenced his turn, could not at that time have seen the appellant's motorcycle. That the appellant's motorcycle could not be seen from the position where Mr Pretyman commenced his turn and the respondent commenced to overtake, is also consistent with the evidence of Mrs Pretyman to the effect that she first saw the appellant's motorcycle when its sound attracted her attention after her husband had commenced the turn.
The appellant said that when he first saw the respondent's motor vehicle it was 15 - 20 metres to his left down Talune Street adjacent to Koluri Court. At that time the appellant says his motorcycle was extremely close to, if not right on, the give way line across the mouth of Eldon Street. Whilst this suggests that there was no line of sight between the appellant and the respondent prior to the appellant being virtually on the give way line, the appellant also hazarded a guess that his view in the direction from which the respondent's vehicle came was obstructed until he was about 5 or 6 metres from the give way line.
The respondent said she first saw the appellant's motorcycle as she passed by Eldon Street at which time the motorcycle was about 10 metres beyond the give way line across the mouth of that street. It was not put to the respondent, in the course of her cross-examination, that she could have seen the appellant's motorcycle at the time she commenced to overtake Mr Pretyman's vehicle.
This brief overview of the evidence demonstrates that it was inadequate to establish how far, if at all, the respondent could have seen up Eldon Street at the time she commenced the overtaking manoeuvre. If anything, the evidence suggests that she could not have seen the appellant's motorcycle at that time. The evidence does not support counsel for the appellant's contention that the learned trial judge erred in failing to find that at the time the respondent commenced the overtaking manoeuvre, she could have seen that the appellant's motorcycle was about to enter Talune Street.
I have read the reasons for judgment prepared by Slicer J and agree with his reasons for rejecting the individual grounds of appeal.
I would dismiss the appeal.
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