Marie Stephens v Transport Accident Commission
[2019] VSCA 234
•18 October 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0156
| MARIE STEPHENS | Applicant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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| JUDGES: | WHELAN and T FORREST JJA and KENNEDY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 October 2019 |
| DATE OF JUDGMENT: | 18 October 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 234 |
| JUDGMENT APPEALED FROM: | [2018] VSC 667 (McDonald J) |
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ACCIDENT COMPENSATION – Negligence – Motor vehicle accident – Finding of fact re length of time indicator on – Finding based on assessment of witnesses – No error – Fox v Percy (2003) 214 CLR 188; Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 applied.
APPORTIONMENT OF LIABILITY – Whether trial judge erred in finding applicant 90 per cent liable for collision – Whether trial judge failed to give due consideration to position of driver following/overtaking – No error – Transport Accident Act 1986 s 104 – House v The King (1936) 55 CLR 499 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr B McTaggart SC with Ms F Ryan | Lander & Rogers |
| For the Respondent | Mr S A O’Meara QC with Mr S E Gladman | Wisewould Mahoney |
WHELAN JA
T FORREST JA
KENNEDY AJA:
On 8 February 2013, Mr Quentin Blackmore was riding his motorbike in a southerly direction along the Midland Highway in Perth, Tasmania. He was riding with his friend, Mr Ivan Coyle. As Mr Blackmore was passing through the town of Perth, he took up a position behind a Toyota Corolla being driven by the applicant, Ms Stephens, travelling in the same direction. The applicant’s husband was a front seat passenger in the car.
Between the intersections of Old Bridge Road and Eskleigh Nursing Home Road (‘ENH Road’), Mr Blackmore commenced to overtake the applicant’s vehicle, pulling out into the right-hand lane as he did so. At the point Mr Blackmore commenced to overtake Ms Stephens’ vehicle, broken white lines, permitting him to overtake, divided the Midland Highway. A speed limit of 60 kilometres per hour applied.
Prior to the collision, the applicant commenced turning her vehicle right, intending to enter ENH Road. As she did so, the right front of her car collided with Mr Blackmore’s motorcycle as Mr Blackmore was attempting to overtake the vehicle. Mr Blackmore was thrown onto the road and sustained serious injuries.
Mr Blackmore lodged a claim for compensation in respect of his injuries and resulting incapacity under the Transport Accident Act 1986 (‘the Act’). The claim was accepted and the respondent paid compensation to Mr Blackmore.
On 19 October 2017, the respondent filed proceedings in the Supreme Court of Victoria, seeking indemnity from Ms Stephens in respect of the compensation paid to Mr Blackmore pursuant to s 104 of the Act. This provided for the Commission to be indemnified for such proportion ‘as is appropriate to the degree to which the injury was attributable to the act, default or negligence of [Ms Stephens].’
At the time of the hearing, there was no issue that the compensation claimed had been paid in accordance with the Act. The only issue before the trial judge was whether the accident was caused by the negligence of Ms Stephens and, if so, whether there should be any apportionment of liability for negligence on the part of Mr Blackmore.
The judge found that the primary cause of the collision was Ms Stephens’ failure to indicate her intention to make a right-hand turn into ENH Road until immediately prior to commencing the turn. He determined that the applicant was 90 per cent liable for the collision and that Mr Blackmore was 10 per cent liable.[1]
[1]Transport Accident Commission v Marie Stephens [2018] VSC 667 (‘Reasons’).
Ms Stephens now seeks leave to appeal this decision on the following proposed grounds:
(a) the learned trial judge erred in finding the applicant’s responsibility for the collision at 90 per cent when such a finding was manifestly excessive on the evidence (ground 1);
(b) the learned trial judge failed to give due consideration, when apportioning liability for the collision, to the duty on the driver of a following/overtaking vehicle to observe carefully vehicles travelling in front and avoid creating a hazardous situation (ground 2);
(c) the learned trial judge erred in finding that there was a direct inconsistency between the evidence of Mr Stephens and Mr Cocker on the issue of how long the indicator of Ms Stephens’ car had been operating prior to the collision, and preferring the evidence of Mr Cocker (ground 3).
For the reasons which follow we have determined that leave will be granted, but that the appeal will be dismissed.
Evidence at trial
Mr Blackmore’s evidence was that he was travelling behind the vehicle — at between 5–10 metres — for around a kilometre or so at about 50 kilometres per hour prior to indicating to overtake. Before he did so he did not observe any brake lights, or indicator lights, and said that there was no speed change.
His evidence was that:
when I was at the back right-hand door, um, I saw the indicator on the guard come on. But at the same time as the car turned. It all just happened at the same time. Indicator, turn. Um, again at the same time, I tried to veer to the right and accelerate, but it was — I — not enough time.
Under cross-examination he agreed that there was nowhere that the vehicle could turn off to a road to the left and did not recall considering that the car could have been turning right into ENH Road (though he would have considered it). He disagreed with the proposition that he failed to look properly at the rear indicator light when overtaking and disagreed with the suggestions that the indicator light was operating and that the car was slowing. He said he would not have overtaken if he had seen the indicator light operating.
Mr Coyle was riding alongside Mr Blackmore prior to the collision. He observed that Mr Blackmore indicated and that he first saw the indicator on Ms Stephens’ car when Mr Blackmore was ‘beside the car.’ He said that there was just ‘a couple of seconds’ between the indicator flashing and the car moving to the right. Ms Stephens’ car turned suddenly as though it had missed the turn. It was a sharp turn to the right, a 90 degree angle. He also denied that the car slowed down as it approached the intersection.
Under cross-examination he maintained that he clearly remembered that the car did not indicate until Mr Blackmore’s bike was beside the car. It was put to him that Mr Blackmore pulled out to overtake notwithstanding that the indicator was on. He stated: ‘I can’t see why he did pull out if he’d seen the indicator.’
Mr Cocker witnessed the accident when driving in his BMW X5 approximately 25 metres behind the motorbikes. Given the significance of his evidence it will be dealt with in more detail, below.
Mr Trevor Hanigan gave evidence that he was driving in a northerly direction when he saw the applicant’s vehicle with its indicator on waiting to turn right. He claimed that the vehicle was parked in the middle of the road with its indicator on waiting to turn right. However he also told the court that his memory of the accident was ‘vague’ and that he was now confused as to what he had in fact witnessed.[2]
[2]Agreed summary [11].
The applicant gave evidence that on the morning of 8 February 2013 she decided that she needed to go to the toilet. She saw a sign saying ‘public toilets’ on the left side of the highway but it was too late to stop. She decided to keep driving until she could find a place to turn. She noticed a road on the right-hand side of the road.
She slowed her vehicle down from 56 kilometres per hour to 35 kilometres per hour prior to commencing the turn. She said that she turned the indicator on before she turned the car and that the indicator clicked ‘maybe five to ten times’ prior to the collision. The respondent served interrogatories on the applicant. Interrogatory 15 asked: ‘how many seconds prior to commencing to turn into Eskleigh Nursing Home Road did you apply your vehicle’s indicator?’ In May 2018, the applicant’s sworn answer to that interrogatory was that she could not recall. However, the applicant said that her memory had been refreshed the night before she was called to give evidence when she examined some photographs of the accident scene.[3]
[3]Agreed summary [9].
She also accepted that she had not looked in her mirror for hundreds of metres before commencing the turn. Further, she agreed that she made a ‘quick decision’ to turn into ENH Road when it appeared on the right.
Mr Stephens gave evidence that they were on the Midland Highway on the outskirts of Perth when his wife said that she needed to go to the rest room. They observed a sign for a public bathroom on the left, but by the time they noticed the sign they had passed it, so he suggested that she turn at the next street and they come back. He proceeded:
Ah, we put our blinker on, it was probably a range of five to ten seconds, um, distinctly you know we heard the blinker, and just as we were beginning our turn — and we were slowing down to make the turn — just as we were getting our turn, we heard a motorcycle right on our bumper simultaneous to the beginning of our turn, and, um, he was riding extremely close to our car, but at that — you know, we had actually started our turn, it was a gentle turn, um, and he was — he’s literally just inches from the side and, um –
Sorry, if I could just stop you there, Mr Stephens. You actually saw him in that position close to the vehicle?---Yes, I did. I — because I was not driving, I could turn my head and look at him, um, you know, right — right where he was on the right rear of our car. And then I heard a very loud sound which sounded like he was accelerating, and I was — my thought was, ‘Oh my gosh, we’re turning and someone is trying to pass us’.
He said that the vehicle slowed down to approximately 40 kilometres per hour over the 20–30 metres leading up to the turn.
He also initially said that he and the applicant both saw the accident at the time and they did not discuss it further. However, on further questioning, Mr Stephens admitted that, in preparation for giving evidence in the trial, he and the applicant had discussed how long they thought the indicator had been on; that he had told the applicant he had heard the indicator operating for five to 10 seconds before the commencement of the turn; and that, before that discussion, the applicant had not known how long the indicator had been on. He denied that they had discussed any photographs of the accident scene.[4]
Mr Cocker’s evidence
[4]Agreed summary [10].
Mr Cocker provided a statutory declaration the day after the accident which included the following statement:
As we were coming around the bend, I noticed the small light blue vehicle slowing down. I saw the front motorcycle starting to get closer to the rear of the vehicle as if preparing to overtake. He was on the right-hand side of the traffic lane. The road markings there were a broken white line from memory. The small blue car was slowing down just before a right hand turnoff. The turnoff is about 100 metres or less before the South Esk River Bridge. I don’t recall seeing an indicator operating on the small blue vehicle. I was travelling at 60 km/h at this point and the bike and car would have been approximately 50 metres in front of me. The second bike was still maintaining its position to the rear of the first bike and over to the left.
I then saw the first bike gradually start to overtake the small car. I don’t recall seeing an indicator operating on the bike — but it may have been, I am not sure. The small car started to gradually turn right into that side road. I only knew its intention to turn as it changed direction. I didn’t see any smoke come off the bike tyres and I don’t even think he got to brake. I don’t recall seeing a brake light on the bike.[5]
[5]Emphasis added.
Under examination-in-chief he said that he saw the car and the two motorcycles in front of him with nothing obscuring his view. All vehicles were driving out of the main part of the town at around 60 kilometres after leaving the 50 kilometre zone. In the lead up to the collision he was about 25 metres behind the bikes. In fact the four wheel drive he was driving had quite an elevated position with the Harley Davidson sitting quite low.
The vehicle started to slow down without braking as it went around a sweeping bend in the road and he was asking himself ‘what are they up to?’ He also gave the following evidence:
Okay. Now, before the car commenced to turn, did it indicate?–No.
Why is it that you can say that so confidently?–Ah, number — the first reason is that my recollection which I documented in my statutory declaration very close to the event, I was clear about that. But also, I was at that time when the accident was unfolding uncertain myself what the car was doing. If it had been indicating, I would not have had that doubt in my mind and asking myself, ‘what are they up to?’
So in terms of the — if his Honour has to decide the question as to whether the car had put its indicator on before the motorbike got alongside the car as part of a thing?–Yes.
– you would say? — I would say that — it didn’t happen. The — the indicator wasn’t turned on.[6]
[6]Emphasis added.
He said that the car did slow down to something like 30 kilometres an hour. In response to a question as to whether he had a recollection of seeing an indicator come on at any point in time on the car he said ‘No.’ He said he would have expected that if the car had its indicator on, he would have been aware that it was turning but that the way it unfolded he was ‘uncertain about what they were going to do.’
Under cross-examination he was asked about his statutory declaration and agreed that he had stated that he did not recall seeing an indicator on the vehicle. He also gave the following evidence:
And that was a fact, was it not, that you didn't recall seeing the indicator on on that car?‑‑‑That's correct. I — I don't recall seeing the indicator.
And it may well have been on, I suggest, but the fact is when your memory was fresh on 9 February 2013, the position was that you just didn't recall whether it was on or not?‑‑‑Ah, that's correct. Ah, but it — it was a case of, um, that I don't recall having seen it and also, I was uncertain was up to. If it had been indicating, there would've been no doubt in my mind what it was doing and that further supports my recollection, ah, that I don't recall seeing the indicator.
But you were not so certain, I suggest, as at 9 February 2013 that the indicator was not on because you never said in your statutory declaration the indicator wasn’t on. The high as you — as high as you put it was, “I don’t recall seeing it”? — Yes.
And that’s the fact, I suggest. That you didn’t recall seeing it? — I don’t recall seeing it is correct.[7]
[7]Emphasis added.
He agreed that he did not recall seeing an indicator on the motorcycle and did not have a recollection ‘one way or the other’ whether it was on or off. However, he was unsure whether the small car was turning or not, and if the indicator on the small car had been on he would not have been uncertain about that. He was more certain about the indicator not being on with the car than the motorcycle. His evidence was also that the car turned very sharply into ENH road when it was almost directly opposite the intersection.
Reasons of trial judge
After summarising the evidence, his Honour noted a direct inconsistency between the evidence led on behalf of the plaintiff and defendant regarding the question of how long Ms Stephens’ indicator was on prior to the collision. Further, the resolution of this dispute was critical to the question of liability. He found that:
The evidence strongly supports a conclusion that Ms Stephens did not activate her indicator until immediately prior to the collision. I place particular weight upon the evidence of Mr Cocker. I found him to be a very credible witness, both in the manner in which he gave his evidence, and the contents thereof. He presented as having an excellent recall of the events of 8 February 2013.[8]
[8]Reasons [16].
He noted that counsel placed particular weight on the statement in the statutory declaration: ‘I don’t recall seeing an indicator operating on the small blue vehicle.’ He rejected a submission that this statement was tantamount to an admission that Mr Cocker had a poor recollection of events.[9]
[9]Ibid [19].
He cited the statement in the statutory declaration that Mr Cocker ‘only knew of its intention to turn as it changed direction’ and found this to be consistent with Ms Stephens not indicating prior to turning. Also, if the indicator had been operating, Mr Cocker would not have had the reaction: ’what are they up to?’ He found the evidence of Mr Cocker to be consistent with the evidence of both Mr Blackmore and Mr Coyle that the indicator on Ms Stephens’ car was only activated as Mr Blackmore commenced overtaking her vehicle.[10]
[10]Ibid [20].
He did not accept Ms Stephens’ evidence that her indicator ‘clicked’ five to 10 times prior to turning into ENH Road.[11] He also did not accept Ms Stephens’ evidence that her recollection of how long the indicator had been turned on for prior to the collision had been refreshed by photographs of the collision scene which she had viewed. He found that Ms Stephens’ evidence in relation to this critical issue was based on what she had been told by her husband.[12] He also found that there was a direct inconsistency between the evidence of Mr and Ms Stephens and Mr Cocker on the issue of how long the indicator had been turned on for prior to the collision, and he strongly preferred the evidence of Mr Cocker as an independent witness with a clear recollection of events of 8 February 2013.[13]
[11]Ibid [23].
[12]Ibid [25].
[13]Ibid [25].
He also dealt with the angle at which Ms Stephens turned into ENH Road. He noted that both Mr and Ms Stephens gave evidence that, immediately prior to the collision, the car was turning slowly and not sharply. However, this evidence was contradicted by the evidence of Mr Cocker and Mr Coyle which was consistent with Ms Stephens’ own evidence that she made a ‘quick decision’ to make the turn.[14] He also gave much less weight to the evidence of Mr Hanigan that the vehicle was stationary before the turn, finding him to have a poor recollection of events.[15]
[14]Ibid [21].
[15]Ibid [22].
The trial judge concluded:
The primary cause of the collision on the morning of 8 February 2013 was Ms Stephens’ failure to indicate her intention to make a right-hand turn into ENH Road until immediately prior to commencing the turn. Mr Blackmore was given no notice of her intention to turn. Further, Ms Stephens turned sharply into ENH Road, making it impossible for Mr Blackmore to take evasive action.[16]
[16]Ibid [26].
His Honour then went on to deal with the question of apportionment for any negligence on the part of Mr Blackmore. He found that, although Ms Stephens failed to give any indication of her intention to turn right, ‘the manner in which she was driving was such that a reasonable person would have anticipated that the reason for the vehicle slowing down may have been her intention to make a right-hand turn’.[17]
[17]Ibid [28].
He noted that senior counsel for the plaintiff had accepted that it would be open to the Court to apportion a maximum of 10–15 per cent of the liability to Mr Blackmore. His Honour concluded that it was appropriate that there be apportionment of liability so that Ms Stephens was 90 per cent liable and Mr Blackmore was 10 per cent liable. He concluded:
Ms Stephens is overwhelmingly liable for the collision by reason of her failure to:
(i)have looked in her rear vision mirror for several hundred metres prior to commencing to turn into ENH Road, as a result of which she was not even aware of the presence of Mr Blackmore and Mr Coyle; and
(ii)then turning sharply into ENH Road without giving any indication of her intention to do so, until immediately prior to commencing the turn. [18]
Submissions
[18]Ibid [29].
Applicant
Primary attention was given to ground 3 which alleged specific error of fact. It was submitted that Mr Cocker’s evidence did not corroborate the evidence of Mr Blackmore and Mr Coyle and was not directly inconsistent with that of Mr and Ms Stephens. Rather, his evidence was that he ‘could not recall’ seeing any indicator lights operating on the vehicle. The applicant’s case was that the judge should have therefore found that Mr Cocker could not say whether the car indicated or not as he had no recollection. It was submitted that, under cross examination, he had agreed that it was ‘correct’ that he did not recall whether it was on or not.
The applicant also submitted that the evidence that Ms Stephens must not have been indicating because, if she was, then he would have known what she was intending to do, was ‘reconstruction’.
Next, it was submitted that it was relevant that Mr Cocker could not say whether the indicator on the motor bike was operating when Mr Coyle and Mr Blackmore say that it was operating. It was also significant that he never saw the indicator on the car notwithstanding that the other witnesses gave evidence that Ms Stephens did indicate (with Mr Blackmore and Mr Coyle giving evidence that she indicated late).
This was to be contrasted with the evidence of Mr and Mrs Stephens that she gave adequate indication. In particular, (given the trial judge found that Ms Stephens’ evidence was based on that of her husband) the evidence of Mr Stephens was that Ms Stephens indicated for five to 10 seconds before turning. It was submitted that this evidence was unshaken and that the trial judge did not express adequate reasons for rejecting it.
Given the finding of direct inconsistency (between Mr and Mrs Stephens and Mr Cocker) was determinative to the ultimate finding that Ms Stephens only gave indication immediately prior to commencing the turn, it was submitted that this finding cannot stand. The proceedings ought to be remitted for retrial before another judge.
In relation to grounds 1 and 2, the applicant highlighted the finding that a reasonable person would have anticipated that the reason for Ms Stephens’ vehicle slowing down ‘may have been her intention to make a right-hand turn.’
Given this relevant finding, it was submitted that the apportionment of 90 per cent was manifestly excessive or unreasonable.
It was also submitted that the trial judge failed to give due consideration to the extent of the duty owed by the driver of a following/overtaking vehicle to watch carefully the leading car for indication of its intention and to avoid creating a hazardous situation. A number of cases were cited in support of the alleged duty.[19]
[19]Rains v Frost Enterprises Pty Ltd [1975] Qd R 287; Braund v Henning (1988) 79 ALR 417; Elphrick v Elliott [2002] QSC 189; Freeleagus v Nominal Defendant (2007) 47 MVR 491; Vos v Hawksell (2010) 55 MVR 271.
This failure was also said to give rise to the separate ground 2.
It was further submitted that if grounds 1 or 2 succeed, then this Court should re-determine the apportionment of liability.
Respondent
In relation to ground 3, counsel highlighted that Mr Cocker gave evidence that the applicant’s car did not indicate before the commencement of the turn. Further, he was confident in that evidence because, if the car had been indicating, there would have been no doubt in his mind about what the car was doing. The respondent also highlighted that, in his statutory declaration, Mr Cocker stated that he ‘only knew [the car’s] intention to turn as it changed direction’, which was consistent with the evidence he gave that the applicant had failed to indicate before the commencement of the turn. In such circumstances, Mr Cocker’s evidence was correctly characterised as inconsistent with that of Mr Stephens and Mrs Stephens (which was internally inconsistent in any event given the applicant said she heard the indicator ‘click’ 5 to 10 times whereas Mr Stephens said the indicator had been on for 5 to 10 ‘seconds’).
Further, after identifying the inconsistency between the evidence of Mr and Mrs Stephens and Mr Cocker, the trial judge stated that he ‘strongly preferred’ the evidence of Mr Cocker, ‘an independent witness with a clear recollection of events.’[20] He thereby necessarily rejected the inconsistent evidence of Mr Stephens.
[20]Reasons [25].
In terms of grounds 1 and 2, the respondent submitted that, on the facts found by the trial judge, the apportionment was open. In particular: the applicant slowed down without braking; failed to look in her rear vision mirror; failed to indicate until the last moment; turned sharply in front of Mr Blackmore’s motorcycle at a point in the road where he was permitted to overtake; and turned in such a way that it was impossible for Mr Blackmore to take any evasive action. In such circumstances the apportionment was neither unreasonable, nor plainly unjust.
Counsel also highlighted that the relevant finding was only that the reason for the vehicle slowing down ‘may’ have been an intention to make a right-hand turn. It was negligence of a ‘subtle kind’ and was also consistent with other explanations, including that the driver was letting the following driver go past (where there were dotted lines).
The respondent further submitted that there was no principle of law that supported the imposition of a duty on the driver of a vehicle following behind another vehicle. Rather, negligence, contributory negligence and apportionment are always questions of fact. It was also noted that senior counsel for the applicant had referred to the same cases in address below, but ultimately conceded that ‘each case must be determined on its own facts.’
Analysis
Ground 3
Principles
A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law.[21]
[21]Lee v Lee [2019] HCA 28, 23 [55]; 93 ALJR 993, 1002-1003 [55] per Bell, Gageler, Nettle and Edelman JJ citing Fox v Percy (2003) 214 CLR 118 at 126-127 [25] per Gleeson CJ, Gummow and Kirby JJ; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at 686 [43]; 331 ALR 550 at 558; [2016] HCA 22.
In relation to alleged errors of fact:
(d) a court of appeal ought not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts’ or ‘uncontested testimony’ or that they are ‘glaringly improbable’ or ‘contrary to compelling inferences’;[22]
(e) such appellate restraint applies to findings of fact which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It also includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts;[23]
(f) thereafter an appellate court is generally in as good a position as the trial judge to decide on the proper inferences to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.[24]
[22]Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at 686 [43]; 331 ALR 550 at 558; [2016] HCA 22 citing Fox v Percy (2003) 214 CLR 118 at [28]-[29] per Gleeson CJ, Gummow and Kirby JJ.
[23]Lee v Lee [2019] HCA 28, 23 [55]; 93 ALJR 993, 1002–1003 [55].
[24]Lee v Lee [2019] HCA 28, 23 [55]; 93 ALJR 993, 1002-1003 [55] citing Warren v Coombes (1979) 142 CLR 531 at 551; 53 ALJR 293 (Gibbs A-CJ, Jacobs and Murphy JJ); see also Fox v Percy (2003) 214 CLR 118 [25]; 77 ALJR 989; Phelan v Melbourne Health [2019] VSCA 205 [77].
An illustration of the above principles is provided in the case cited of Fox v Percy.[25] That case also concerned an accident on a country road and raised an issue as to which side of the road the accident happened. In that case there was a motor vehicle which collided with a woman on a horse. The trial judge had accepted the evidence of the horsewoman and her companion to the effect that they were on the correct side of the road when the accident occurred. It was held, however, in both the Court of Appeal in New South Wales and in the High Court that that conclusion was inconsistent with incontrovertible evidence which showed that there were skid marks on the correct side of the road for the vehicle.
Resolution
[25](2003) 214 CLR 118; 77 ALJR 989.
The critical finding in this case was that ‘Ms Stephens did not activate her indicator until immediately prior to the collision.’ Contrary to a suggestion of the applicant, this was a primary finding of fact involving an evaluation of the evidence of Mr Blackmore, Mr Coyle, Mr and Mrs Stephens, as well as Mr Cocker. There was no process of inference. Further, although the applicant suggested that credit was not an issue in respect of Mr Cocker, in making the critical finding, the trial judge considered the reliability and/or credibility of all the relevant witnesses. He also explicitly stated that he found Mr Cocker to be a ‘very credible witness.’
No direct attack was made on this critical finding. Rather, by ground 3, the applicant alleges that the trial judge ‘erred’ in his characterisation of certain evidence (of Mr Cocker) which was relied on in support of this finding. In particular, it is suggested that the trial judge should have found that Mr Cocker had no recollection as to whether the indicator was on or not.
However, under examination-in-chief, Mr Cocker expressly said that the car did not indicate before it commenced to turn. There was no suggestion in this response that he had no recollection. Rather, he clearly stated that this ‘first reason’ was based on his ‘recollection’ (as documented in his statutory declaration) which was that the indicator was not on.
Mr Cocker also gave evidence that he had doubt at the time as to what the car was doing, which he would not have had if an indicator had been on. This, however, was expressed as an additional matter which further supported his recollection. Such evidence did not amount to ‘reconstruction.’ Rather, it constituted evidence of what he was observing and thinking at the time. It was also consistent with the evidence in his statutory declaration that he ‘only knew its intention to turn as it changed direction.’
It is true that, at various times, he said he ‘could not recall’ and even, at one point, appeared to agree with the proposition that he did not recall whether the indicator was on or not. However, it is unclear that he appreciated the distinction being made in circumstances where he then clarified that his mindset at the time ‘further supports’ his ‘recollection’ that he did not recall ‘seeing it.’ This evidence can also be compared with his evidence about the motorcycle where he gave evidence (in his own words) that he did not have a recollection ‘one way or the other.’ It was open for the trial judge to form the impression (as he did) that, consistent with his other evidence, Mr Cocker ‘did not recall’ because he did not see an indicator on (rather than that he had no recollection). No error is demonstrated in this approach.
The applicant highlighted Mr Cocker’s evidence that he did not see the indicator come on at all on the car. However, it is unsurprising that Mr Cocker did not observe the indicator in the context of a collision where, according to Mr Blackmore, everything ‘happened at the same time’, and where even the applicant conceded that she made a ‘quick decision to turn.’ The applicant also relied on Mr Cocker’s evidence that he could not recollect ‘one way or the other’ whether he saw the indicator on the motor-bike. That evidence was consistent with the fact that he was concentrating on the car (rather than the motor-bike) given he was ‘uncertain what the car was doing.’
The applicant has thereby failed to demonstrate any error in the characterisation of Mr Cocker’s evidence. Rather, not only was it was open for the trial judge to characterise the evidence of Mr Cocker as being inconsistent with that of Mr and Mrs Stephens (and consistent with that of Mr Blackmore and Mr Coyle), we consider that it was correct.
There is particularly no error that would warrant intervention by this Court within the principles cited above. There was nothing to suggest that the critical finding was wrong by reason of ‘incontrovertible facts’, ‘uncontested testimony’ or ‘contrary compelling inferences.’ Thus, unlike Fox v Percy, there was no equivalent to the ‘skid marks’ to demonstrate how long the indicator was on. Although the judge placed particular weight upon the evidence of Mr Cocker, there was also other evidence to support the critical finding from both Mr Blackmore and Mr Coyle. The applicant’s own case also appeared to be the more ‘glaringly improbable’ of the alternative positions given it presumed that a motorcyclist would try to pass a car which had a right-hand indicator on.
Insofar as ground 3 alleges error in ‘preferring the evidence of Mr Cocker’ the critical finding was that ‘the evidence’ strongly supported that Ms Stephens did not activate her indicator until immediately prior to the collision. This critical finding implicitly accepted the evidence of Mr Cocker, Mr Blackmore and Mr Coyle and rejected that of Mr and Mrs Stephens. Insofar as Mr Cocker was concerned, the trial judge also provided express reasons for preferring his evidence, finding him to be a ‘very credible witness’ with ‘an excellent recall.’ After later highlighting the inconsistency with the evidence of Mr and Mrs Stephens he also expressly stated: ‘I strongly prefer the evidence of Mr Cocker, an independent witness with a clear recollection of events of 8 February 2013.’
He has thereby given adequate reasons for preferring the evidence of Mr Cocker with no error demonstrated.
Ground 3 is not sustained.
Grounds 1 and 2
Principles
These grounds raise the appropriateness of the apportionment which involves ‘an individual choice or discretion, as to which there may well be differences of opinion by different minds.’[26]
[26]Podrebersek v Australian Iron Steel Pty Ltd (1985) 59 ALR 529 at 532 citing British Fame (Owners v Macgregor (Owners) [1943] AC 197 at 201 (emphasis added).
The applicable principles are those set out by the High Court in House v The King as follows:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[27]
Resolution
[27]House v The King (1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ).
In reaching the figure of 10% the trial judge made the relevant finding that the manner in which Mr Stephens was driving was such that a reasonable person would have anticipated that the reason for the vehicle slowing down ‘may have been her intention to make a right-hand turn.’
However, he also made other findings that were not the subject of challenge for the purposes of these grounds. More particularly, he found that Ms Stephens was ‘overwhelmingly liable’ by reason of her failure to look in her rear vision mirror for several hundred metres; that she turned ‘sharply’ into ENH Road (which he had also found made it impossible for Mr Blackmore to take evasive action); and that she failed to give any indication of her intention to turn until immediately prior to commencing the turn.
Given these findings, an apportionment of 90/10 was open to the trial judge and was not ‘manifestly excessive’. More significantly, it was not ‘plainly unjust’ or ‘unreasonable’ within the principles, above.
Ground 2 must also fail. It is true that Dunn J in Rains v Frost suggested that there is a ‘special relationship’ between the ‘leading vehicle’ and the ‘following vehicle’ with the latter normally being in a better position to observe and avoid creating a hazardous situation.[28] However, he also acknowledged that the relationship ‘will vary with the circumstances of the case’[29] and did not suggest that the following car is inevitably liable. Subsequent cases have also emphasized that there is no applicable legal principle, and certainly no special or different duty imposed on a following vehicle other that the duty owed by all road users to exercise reasonable care. Rather, as properly conceded by senior counsel,[30] the cases provide ‘guiding factors’ only with every case determined on its own facts.[31]
[28][1975] Qd R 287, 294.
[29]Ibid 295.
[30]Transcript of Proceedings, Marie Stephens v TAC (Victorian Court of Appeal, Whelan & T Forrest JJA, Kennedy AJA, 8 October 2019) 47.12-16.
[31]See eg Braund v Henning (1988) 62 ALJR 433 at 422; Vos v Hawksell (2010) 55 MVR 271 [31]; Freeleagus v Nominal Defendant (2017) 47 MVR 491 [23].
In any event, the trial judge has not failed to give consideration to the position of Mr Blackmore’s motorcycle as a ‘following vehicle.’ To the contrary, as was also fairly conceded by senior counsel,[32] the trial judge considered what a reasonable person in Mr Blackmore’s position ought to have observed and anticipated at paragraph 28 of his Reasons. This then led to the 10 per cent figure.
[32]Transcript of Proceedings, Marie Stephens v Transport Accident Commission (Victorian Court of Appeal, Whelan & T Forrest JJA, Kennedy AJA, 8 October 2019) 48.16-25.
It cannot be said that the trial judge did not take a material consideration into account within House v the King principles. Rather, the complaint is about the weight to be given to this consideration which does not constitute a relevant basis for review.
Grounds 1 and 2 are not sustained.
Conclusion
Leave to appeal will be granted, but the appeal will be dismissed.
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