Peake v Grant (Ruling)

[2022] VCC 1104

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-21-01455

ROGER SILVESTER PEAKE (a person under disability who sues by his Litigation Guardian JANICE PEAKE)	Plaintiff
v
MADELINE ALICE GRANT	Defendant

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JUDGE:	HER HONOUR JUDGE TSIKARIS
WHERE HELD:	Melbourne
DATE OF HEARING:	15, 16, 17, 20, 21 and 22 June 2022
DATE OF RULING:	19 July 2022
CASE MAY BE CITED AS:	Peake v Grant (Ruling)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1104

RULING

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Subject:   CIVIL PROCEDURE
Catchwords:              Civil trial – motion for judgment non obstante veredicto

Legislation Cited:      Road Safety Act 1986 (Vic), s17A; Road Safety Road Rules 2017 (Vic), r75

Cases Cited:The Herald & Weekly Times Limited & Anor v Popovic (2003) 9 VR 1; Naxakis v Western General Hospital & Anor (1999) 197 CLR 269; Phillips v Ellinson Brothers Proprietary Limited (1941) 65 CLR 221; Micheli v Khousaba [2019] VSC 401; King v Amaca Pty Ltd [2011] VSC 422; Manley v Alexander [2005] HCA 79

Ruling:  Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S McCredie	Henry Carus and Associates
For the Defendant	Mr P D Elliot QC with Mr S Pinkstone	Solicitor to the Transport Accident Commission

HER HONOUR:

1On 22 June 2022, following a six-day trial, a jury of six returned a unanimous verdict in favour of the defendant.  After the jury’s verdict was announced and prior to judgment being entered in favour of the defendant, the plaintiff’s counsel applied for an order that the jury’s finding of no negligence on the part of the defendant be set aside notwithstanding the jury’s verdict.

2The plaintiff’s application was made pursuant to leave which was reserved on 22 June 2022 at the close of submissions.

3After hearing the parties’ submissions, I informed the parties I would reserve my decision.  I now rule on the plaintiff’s application.

The grounds 

4The plaintiff’s application is brought on the basis that having regard to the defendant’s uncontested evidence that when she was driving through the ‘KEEP CLEAR’ zone, at such speed that she was unable to take any evasive action when the plaintiff’s car came out in lane S4, that they were bound to find that a reasonable and careful driver should not have been driving at 35 kilometres per hour.

Legal principles 

5The principles to be applied in determining the plaintiff’s application are well established.[1]

[1]See The Herald & Weekly Times Limited & Anor v Popovic (2003) 9 VR 1 at paragraphs [126]-170]; Naxakis v Western General Hospital & Anor (1999) 197 CLR 269 at 274-275; Phillips v Ellinson Brothers Proprietary Limited (1941) 65 CLR 221 at 230

6I refer also to Micheli v Khousaba[2]  in which Zammit J (as she was then known) adopted the summary of legal principles as set out by Kyrou J in King v Amaca Pty Ltd:[3]

(a)   In order for a defendant’s application for judgment notwithstanding the jury’s verdict to succeed, the defendant must establish that there was no evidence upon which a reasonable jury, properly directed, could return a verdict for the plaintiff;

(b)   Where there is evidence to support the jury’s verdict, the verdict cannot be disregarded even if the trial judge were strongly against the jury’s conclusion;

(c)   A trial judge hearing an application for judgment notwithstanding the jury’s verdict should determine the application on the evidence most favourable to the party that carries the onus of proof;

(d)   A trial judge should proceed with great caution and only exercise the power to give judgment in disregard of the jury’s verdict in the clearest of cases.[4]

[2] [2019] VSC 401

[3] [2011] VSC 422

[4]        See King v Amica Pty Ltd (ibid) at paragraphs [7]-[10]

7The function of a trial judge in deciding such an application is more circumscribed than that of an appellate court.  Although each case must depend on its own circumstances, a trial judge “should proceed with care and caution and only in the clearest of cases should a judge take away an issue or direct a verdict in favour of a party”.[5]

[5]        See The Herald & Weekly Times Limited & Anor v Popovic (supra) at paragraph [134]

8The test to be applied in an application for judgment notwithstanding a jury’s verdict is an onerous one and difficult to make good.  In short, the plaintiff must establish that there was no evidence upon which a reasonable jury, properly directed, could return the verdict that it did, namely in relation to a finding of no negligence on the part of the defendant.

The evidence

9The circumstances giving rise to the proceeding may be summarised as follows.

10On or about 20 July 2014, at approximately 11:45am, the plaintiff was travelling north on Manchester Road, Mooroolbark, intending to turn right to enter the Mooroolbark Railway Station carpark.  The plaintiff commenced to turn right and entered a ‘KEEP CLEAR’ zone on Manchester Road south bound.  

11As the plaintiff was executing his right-hand turn, he collided with the defendant’s motor vehicle which was being driven by the defendant in a southerly direction on Manchester Road, Mooroolbark.

12The plaintiff claimed that the collision was caused by the negligence and/or breach of duty of the defendant.

13The plaintiff’s evidence is that before executing the right-hand turn, he was able to see southbound lanes S1,[6]  S2 and S3.  In lane S2, there was a truck stopped north of the ‘KEEP CLEAR’ zone and a minibus was stopped in lane S3.  The plaintiff said that he could not see if there were any vehicles in lane S4, the lane adjacent to the footpath.

[6]        Lane S1 being a right-hand turn lane

14The plaintiff gave evidence that he made his right-hand turn and entered into the ‘KEEP CLEAR’ area and his vehicle was parallel to the solid white line which delineated the northern side of the ‘KEEP CLEAR’ zone.  At that point, he started to crawl and was in front of the stationary truck in lane S2.  The driver of the truck waved him through, and he edged his vehicle forward past lane S3.  The plaintiff said his vehicle was crawling, his bonnet was sticking out into S4, and he was struck by the defendant who was travelling south in lane S4.  He was unable to see the defendant before the accident because he could not see past the truck and the minibus in lanes S2 and S3.

15In cross-examination, the plaintiff accepted that he was required to give way to vehicles in lanes S1, S2, S3 and S4 before turning into the car park.  Before entering the ‘KEEP CLEAR’ zone, he observed that lanes S2 and S3 were “chock-a-block” with traffic.  The plaintiff accepted that as he proceeded to edge his vehicle forward in lane S4, he did not have a clear view of lane S4.  He agreed that to have a view of the vehicles in lane S4 he would have to move two feet forward past the minibus which was stationary in lane S3.

16The defendant’s evidence was that she was travelling south on Manchester Road and moved into lane S4.  She described Manchester Road as a hill which declined and started to flatten out as she approached the ‘KEEP CLEAR’ zone.

17The defendant said that she estimated her speed to be about 35 kilometres per hour.  There were no cars in her lane, either to the north or south of the ‘KEEP CLEAR’ zone.  She had a clear view of the boom gates which she said were down. In relation to lanes S2 and S3, the defendant said that they were both full to the point where they had cars on the north part of the ‘KEEP CLEAR’  zone.  Traffic was at a standstill, and she saw a four-wheel drive in the lane to her right.

18The defendant’s evidence is that as she was heading downhill, she was braking to prepare to head towards the boom gates and stop.  She was doing about 35 kilometres per hour before entering the keep ‘KEEP CLEAR’ zone.

19The defendant said that she applied the brakes fully when she saw the corner of the plaintiff’s car come out in front of her, but said it was too late by that time.  She said she slammed on her brakes, but her vehicle collided with the plaintiff’s car.

20In cross-examination, the defendant said that when she first saw the plaintiff’s car, she saw the headlight to the guard area of his car.  She agreed that the plaintiff was not travelling at any speed at all, not travelling very quickly and he did not “shoot out”.  She said that the plaintiff was going very slowly.

21The defendant agreed that she was going to have to stop at the boom gates and that the boom gates had gone down not long before the accident happened.  The traffic going south on Manchester Road had already banked up, both up to the ‘KEEP CLEAR’ zone in lanes S2 and S3 and north of the ‘KEEP CLEAR’ zone.

22The defendant said that she had right of way through the ‘KEEP CLEAR’ zone and she did not do anything with respect to the driving and control of her vehicle having regard to the ‘KEEP CLEAR’ zone.  Because she had right of way, she could drive through the ‘KEEP CLEAR’ zone without worrying.  She knew that the ‘KEEP CLEAR’ zone was available for vehicles such as the plaintiff’s to make a right-hand turn into the carpark and that cars doing a right-hand turn would have to wait for traffic to stop in order to enter the ‘KEEP CLEAR’ zone.  She agreed that if traffic stopped in lanes S2 and S3 north of the ‘KEEP CLEAR’ zone, then vehicles making a right-hand turn would consider entering the ‘KEEP CLEAR’ zone in order to make their right-hand turn and drive into the car park.

23The plaintiff tendered a copy of s17A of the Road Safety Act 1986 (Vic) and submitted to the jury that the defendant had failed to have any or any adequate regard to the prevailing traffic conditions.[7]

[7]        Exhibit D3

24The defendant tendered a copy of Rule 75 of the Road Safety Road Rules 2017 (Vic)[8] – Giving way when entering a road related area or adjacent land from a road.

[8]        Exhibit D2

25For the purposes of this application, I assume the following matters which represent the facts most favourable to the plaintiff.

26The plaintiff entered the ‘KEEP CLEAR’ zone when cars were stationary in lanes S2 and S3 on the northern side of the zone.  He was travelling at a very slow speed and crawled past the cars in lanes S2 and S3, when he edged his vehicle forward past lane S3 into lane S4.  He was driving in that manner as he was alert to the possibility that there may be vehicle driving down S4.  The defendant conceded in cross-examination that in driving down lane S4 at the speed of 35 kilometres per hour, she did not adjust her driving, allowing for the presence of any vehicles entering the ‘KEEP CLEAR’ zone to execute a right-hand turn into the car park.

Submissions 

27In moving for judgment, the plaintiff relies on the following submissions:

(a)   The standard of care owed by the defendant was consistent with Manley v Alexander;[9] and

(b)   The defendant accepted in her evidence that by the time she saw the plaintiff’s vehicle, she had no opportunity to take any evasive action due to the speed of her vehicle – either by braking, veering or sounding a horn.

[9] [2005] HCA 79

28Counsel for the defendant submitted that the plaintiff’s case was that the speed of the defendant was unsafe in the circumstances of this case, which had been rejected by the jury.  Counsel for the defendant submitted that it was open to the jury to reject that argument.

29The defendant was travelling at 25 kilometres per hour under the speed limit, she had been braking slowly and she entered the ‘KEEP CLEAR’ zone at a speed less than 35 kilometres per hour.  Counsel for the defendant submitted that the jury completely rejected the submission of the plaintiff and therefore the actions of the defendant were reasonable in the circumstances.

Discussion

30There was no dispute between the parties as to the circumstances of the accident. The plaintiff’s submission to the jury was essentially that the defendant’s speed when driving south on Manchester Road towards the ‘KEEP CLEAR’ zone and the boom gates, was unsafe in circumstances where traffic was banked up in the other lanes.

31Counsel for the plaintiff submitted that it was not open to the jury to make a finding in favour of the defendant because:

(a)   the defendant accepted in cross-examination that if traffic was stopped in lanes S2 and S3 north of the ‘KEEP CLEAR’ zone, then vehicles making a right-hand turn would consider entering the ‘KEEP CLEAR’ zone in order to make their right-hand turn and drive into the car park;

(b)   her visibility was obstructed; and

(c)   the defendant accepted that by the time she saw the plaintiff’s vehicle it was too late for her to take any evasive action to avoid the collision.

32Counsel for the plaintiff accepted that my charge to the jury was unexceptional in terms of explaining to the members of the jury the standard of care that was owed consistent with Manley v Alexander.[10]

[10]        Ibid

33I do not accept counsel for the plaintiff’s submissions that based on all of the evidence, the jury could not have made a finding in favour of the defendant.  The plaintiff’s application is predicated on the basis that the jury should have accepted the plaintiff’s version that he had no option when entering the ‘KEEP CLEAR’ zone to continue to drive, albeit very slowly to cross lane S4, particularly as another driver had waved him through.

34However, it is probable that the jury preferred the evidence of the defendant and concluded that the defendant had right of way.  The lane she was driving in was clear from traffic past the ‘KEEP CLEAR’ zone and she was slowing down on her approach to the boom gates.  Such a finding would have been well and truly open to them on the evidence led at trial.

35The jury was entitled to find that the defendant was not negligent in light of the evidence of the defendant and Rule 75 of the Road Safety Road Rule (Vic) 2017 which was tendered.

36It was a matter for the jury, having regard to the totality of the evidence, to determine whether the defendant’s negligence was a cause of the collision.

Conclusion

37The defendant’s evidence was more than sufficient to enable the jury to conclude that the defendant had right of way through the ‘KEEP CLEAR’ zone, she had been slowing down on her approach and by the time she saw the plaintiff’s vehicle, she had no opportunity to take any evasive action. 

38In addition to the viva voce evidence of the witnesses, multiple images of the accident site were tendered.

39There was evidence for the jury to reach its conclusion that there was no negligence on the part of the defendant which caused the collision.

40Therefore, I dismiss the plaintiff’s application.

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