Pankelis v Francombe

[1990] TASSC 34

Serial No 29/1990
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Pankelis v Francombe [1990] TASSC 34; A29/1990

PARTIES:  PANKELIS
  v
  FRANCOMBE

FILE NO/S:  LCA 10/1989
DELIVERED ON:  8 August 1990
JUDGMENT OF:  Cox J

Judgment Number:  A29/1990
Number of paragraphs:  18

Serial No 29/1990
List "A"
File No LCA 10/1989

PANKELIS v FRANCOMBE

REASONS FOR JUDGMENT  COX J

8 August 1990

1. This is an appeal from the dismissal by a Commissioner of the Court of Requests of the appellant's claim for damages for injuries caused by the allegedly negligent driving of the respondent. The accident giving rise to the claim occurred on 9 September 1985, in daylight, at or near the junction of Sheffield Main Road and a country side road known as Nook Road.

1. The appellant, an elderly gentleman of Latvian origin, who gave evidence through an interpreter and who has no vision in his right eye, was driving his motor vehicle north towards Devonport along Nook Road where he had lived for some thirty years. His wife was a passenger in the car. Nook Road joins Sheffield Main Road at a junction roughly shaped like an inverted "Y". A "Give Way" sign is erected facing traffic entering the Main Road from Nook Road. The driver of a vehicle so entering the Main Road must look to the left at an acute angle to observe and give way to anything approaching from the south, but his view to the north is clear and unimpeded. An intermittent stop line is delineated across the mouth of Nook Road at this junction.

1. The appellant gave evidence that on reaching the junction he halted, looked to the left or south–west which was clear of approaching traffic, and then looked to the north along Sheffield Main Road which lay before him extending slightly to his right. He said he could see a south bound red coloured vehicle approaching him approximately 120 metres away. A little later in his evidence he said words to the effect that he first saw the car when it was 150 metres away and judged it to be far enough away for him to enter the Main Road safely. When he was in the middle of the road, the red car was 120 metres away and travelling on the east or correct side of the road for south bound traffic. Again "while (he) was in the middle of the road the (other) car started to go to the wrong side of the road". He said he turned his own car as close as possible to the side so that the left wheels were off the bitumen on the western side of the road. Then the other car struck the two–thirds of the right front of his car, pushing it three metres backwards and into a bank at the side of the road, while the red car turned around and came to rest "approximately two and a half away (sic) and one metre from my car".

1. Photographs were tendered showing the appellant's vehicle entirely on its correct side of the road, its rear section diagonally resting on a bank to the side of the road and its body straddling a culvert. The respondent's vehicle is shown at rest diagonally across the south bound section of the Main Road, its left front tyre being on the north bound side of the road. A short distance separates the cars. Glass and debris is shown on both sides of the road and in the culvert on the west side of it. The windscreens of both vehicles appear to have been shattered in the impact.

1. The appellant said that the collision had occurred on the western side of the road. In cross–examination, he was asked where the red truck was when he looked north on reaching the junction and said,

"When I started to drive I was in the middle of the road 150 metres away when I started to drive. When I got into the middle of the road the car started to go the other side of the road. About 80 metres away, 80 metres away he turned to the wrong side of the road".

He claimed the red truck was going at a speed of "40 to 40 metres a second (sic)". This equates 90 miles per hour. The gravamen of his case was that he had entered the intersection when the respondent's vehicle was well over eighty metres away and that when the two vehicles were that distance apart and he in the middle of the road, the respondent had gone to the wrong side of the road and continued on the wrong side of the road at a very high speed until a collision occurred on the western side of the road. If the learned commissioner had accepted his evidence, he would clearly be entitled to judgment. He called no other evidence, his wife having been fatally injured in the collision.

1. The respondent gave evidence that he had no recollection of the accident at all, having lost consciousness in the impact. He said that he had a blank patch in his memory from a point before the accident scene on his way home from Devonport until he regained consciousness after the collision, and had no recollection of his speed. He claimed in reliance of his experience of it, that his car could not do speeds of more than 70 or 80 kilometres "up there". While he was challenged in cross–examination as to the speed capabilities of the car, there was no suggestion that his inability to recall the events surrounding the collision was other than quite genuine.

1. The last witness was his daughter, aged eight years at the time of the collision and six weeks short of her thirteenth birthday at the time of the trial. She was sworn and gave this evidence:

"QCan you tell the Judge what happened that day?

AWe were coming home from the sale in Quoiba and we come to this cross section and the man came out from the Nook way and ran into us.

QNow do you recall which side of the road any collision occurred on?

AThe left hand side.

QNow when you say the left hand side, do you mean when the road is going away from Devonport or towards Devonport?

AAway."

1. She then pointed out on one of the photographs what she claimed was the point of collision, indicating the approximate centre of the eastern lane of Sheffield Main Road. She was also asked:

"Q       Was your father on the right hand side of the road at all before the accident?"

and replied "No".

1. I reproduce the entire cross–examination of this witness:

"QTheresa, how old were you when this accident happened?

A8.

Q8, and when did you first know that you were going to be asked to give evidence today?

ALast week sometime I can't remember.

QThat was the first time that you were asked which side of the road the collision occurred on?

AI think so.

QI am just going to show you a document, Theresa – I don't want you to say what it is just take your time and read it through. Is that a statement that you made earlier on?

AYes.

QThat is your signature at the bottom there is it?

A(inaudible)

QAnd you agree that in that statement you say this just reading out one paragraph:

'We were near the Nook Road, and I saw a whitish car which was coming out of the Nook Road, the car slowed down but it didn't stop before it came out onto the bit of road where we were going we were close to the other car when it came out in front of us and Dad swerved to the right and we then crashed into the front of the other car'

did you say that?

A        Yes."

There was no re–examination.

1. The learned commissioner made the following findings:

"1The plaintiff was obliged to give way to the defendant by virtue of both a give way sign and a T junction.

2The plaintiff may or may not have stopped at the stop line in Nook Road, but the situation which then followed was brought about in my view by his failure to –

a)judge accurately the speed of the defendant's vehicle which I believe he saw andor, and more probably,

b)judge accurately its distance from him when he made his decision to move – I add, move across the stopline.

3He either never had sufficient room or took too long about the manoeuvre.

4The speed of the defendant's vehicle was never likely to have been significantly greater than 80 kms per hour and as such its drivers speed was [at] all material times reasonable and well within the speed limit which I infer was 110.

5Either the plaintiff moved out when the defendant was so close nothing could be done to avoid him or the distance was so short that the defendant only had time to swerve.

6It is not necessary to resolve the apparent conflict in my paragraph 5. If it was the latter option that is the distance was so short there was only time to swerve. The defendant was entitled and indeed obliged in my view to attempt to avoid the accident by reasonable means including swerving to the wrong side of the road.

Gentlemen, I forgot to bring the authorities down with me, but there are a line of them listed in the second edition of Mazengarb which I looked at quickly upstairs and there are two of them reported in the Tasmanian Lillas Digest in the old yellow bound intermediate volume after the original thick one – they're all now incorporated in a new one. There are two of them, one of them was in 1974 and the other one I think was a little bit after that.

7I can in fact make no finding as to where the point of impact was. I have heard no expert evidence. There is a lot of glass on the road at the rear of the Suzuki in photographs B & C, that's in the eastern lane. There is mud and other debris scattered over a wide area of both lanes especially the western lane shown in photograph E, one vehicle was moving roughly north–west, and the other roughly south. In all the circumstances no conclusion could be drawn from the position they ended up and I add no conclusion in my view could be drawn in the absence of expert evidence from any of the evidence of debris or where the vehicles ended up as to which lane or which part of which lane the actual point of impact occurred in.

8I can make no room in my view for a finding of contributory negligence.

9I could make, it's not necessary to make, but I could make no finding on the evidence of distances as I wasn't told first how they'd been arrived at and there was also I believe although it's not necessary again to decide this, there was some conflict in respect to the evidence of distances in the plaintiff's evidence.

Putting all those points together there will be judgment for the defendant on the claim".

1. The appellant claims that the decision of the learned commissioner was against the weight of the evidence. By way of greater particularity, he claims that of the numbered findings set out above, those numbered 2,3,4,5 and 8 were opposed to the preponderant weight of the evidence. While it is true that it is the duty of a judge upon the hearing of an appeal under s123 of the Local Courts Act 1896 to form his own judgment on the facts so far as he is able to do so, this proposition is subject to the limitation that an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen or heard the witnesses ould not be sufficient to explain or justify the trial judge's conclusion (per Nettlefold J in Wiggans v Tasmanian Breweries Pty Ltd Unreported Serial No 45/1975).

1. Clearly the learned commissioner was not prepared to accept as reliable much of the appellant's evidence. He did not accept his evidence in respect of estimates of the speed of the respondent in his approach towards the junction, of the appellant's estimates of the distance between both cars when the appellant reached the middle of the road, and on the claim that the point of collision was on the western side, or the respondent's incorrect side of the road.

1. There are several cases which support the proposition that "where the account of an incident put forward by a witness is uncontradicted and there are no circumstances throwing doubt on the story, which is definite and coherent, as well as reasonable and probable in setting and detail, it should be acted on" (per Mayo J in City of Burnside v Hillier [1947] SASR 301 at p302). See also Holman v Holman (1964) 81 WN NSW 374; Sheahan v Woulfe [1927] QSR 128 where McCrossan SPJ said at p131 "A manifest rejection of uncontradicted evidence must be explained by some circumstances appearing from the evidence itself, and must not be unreasonable"; Richards v Jager [1909]) VLR 140; Swinburn v David Syme & Co [1909] VLR 550; and Llewellyn v Reynolds [1952] VLR 171. However, in the present case the appellant's evidence was not uncontradicted and contained some elements of inherent improbability which, in my view, justified a considerable degree of scepticism on the learned commissioner's part.

1. It is true that the driver of the other vehicle did not contradict much of the appellant's evidence. There was, however, a valid reason why he was unable to do so, namely amnesia, the genuineness of which was in no way challenged. Had he merely chosen not to give evidence when he was presumably able to put a version of events different to the appellant and the evidence provided no sufficient explanation for his absence from the witness stand, then not only, in accordance with Jones v Dunkel (1958) 101 CLR 298 would the court have been in a position to more confidently draw inferences favourable to the appellant, but it could probably be said, in the circumstances, that there was no proper basis for rejecting his version. However, he did advance an unchallenged explanation of his inability to put any different version and in any event, he did contradict an important plank in the appellant's case, namely that his vehicle was travelling at a very high speed. There was ample evidence for the learned commissioner's finding that the speed of the respondent's vehicle was never likely to have been significantly greater than 80 kilometres per hour. That finding on its own must have cast considerable doubt on the correctness of the appellant's version.

1. In addition, there was evidence from the respondent's daughter that the car in which she was a passenger never left the correct or eastern side of the road, and that the two cars collided at a point on that side of the road. It was argued that the learned commissioner ought to have rejected this evidence for three reasons: first, she was only eight years old at the time of the collision and not quite thirteen at the time of trial; second, when she was asked in cross–examination whether the first time she had been asked which side of the road the collision occurred on had been in the week preceding that trial, she had replied "I think so"; and third, she had made prior statements inconsistent with her present testimony. The mere fact of age or youthfulness cannot be a basis for rejecting evidence, otherwise such evidence should never be called. It was for the learned commissioner to evaluate her evidence and in that task he enjoyed an advantage an appeal court can never hope to enjoy. The same can be said for the second objection. It may be that she misunderstood the question or conceded she "thought so" because she could not recall having been asked that question before. In any event, it was not put to her that she had not previously adverted to where on the roadway the collision had occurred.

1. Thirdly, the previous statement was not necessarily inconsistent with her evidence at the trial. I accept Mr Levis' submission that a statement "we crashed into the other car" is not necessarily inconsistent with one to the effect "the man ran into us". Both expressions might interchangeably be used to convey the concept that both cars came into collision. The earlier statement that "Dad swerved to the right" did not conflict with her evidence that her father's car was not on the right hand side of the road at all before the accident.

1. Hence there was evidence the learned commissioner was entitled to treat as reliable and to take into account in assessing the somewhat improbable claim of the appellant that the respondent had crossed to the wrong side of the road for no apparent reason a considerable distance from the appellant's vehicle and had closed the gap at a very high speed with the result that a collision had occurred on the wrong side of the road. He was entitled to find that the glass and debris shown in the photographs was of no assistance in determining the point of collision and to reject the appellant's version of how the accident occurred.

1. The findings announced by the learned commissioner were open to him and there is no basis to disturb them. The appeal will be dismissed.