R L & D Investments Pty Ltd v Bisby

[2002] NSWSC 1082

CITATION:	R L & D Investments P/L v Bisby & Anor [2002] NSWSC 1082
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 10663/01
HEARING DATE(S):	04/11/02
JUDGMENT DATE:	22 November 2002
PARTIES :	R L & D Investments Pty Ltd (Pl) Harold Bruce Bisby (1 Def) Giovanni Oliveri Enterprises P/L (2 Def)
JUDGMENT OF:	Kirby J

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :	843/99
LOWER COURT JUDICIAL OFFICER :	Brydon LCM

COUNSEL :	R Toner SC (Pl) R C Tonner (1 & 2 Def)
SOLICITORS:	D Mosca (Pl) Jason Li Lawyers (1 & 2 Def)
CATCHWORDS:	Appeal from Magistrate on error of law - Whether jurisdiction to deal mixed fact and law - Meaning error of law - No evidence
LEGISLATION CITED:	Justices Act, 1902 Local Courts (Civil Claims) Act, 1970 Motor Traffic Regulations 1900
CASES CITED:	State Rail Authority v Smith [2000] NSWSC 334 Carr v Neill [1999] NSWSC 1263 Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126 Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Mahoney v Industrial Registrar of NSW & Anor (1986) 8 NSWLR 1 Haines v Leves & Anor (1987) 8 NSWLR 442 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Gangemi Holdings Pty Ltd v Salter & Ors [1999] NSWSC 1004 R v District Court: Ex Parte White (1966) 116 CLR 644 Trompp v Liddle (1941) 41 SR (NSW) 108
DECISION:	Appeal allowed; Matter remitted to Local Court to be determind according to law; Defendants to pay plaintiff's costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVID KIRBY J

Friday 22 November 2002

10663/01 - R L & D INVESTMENTS PTY LTD v BISBY & ANOR

JUDGMENT

1 KIRBY J: On 22 June 1998 at approximately 8.20 am, a bus collided with a car in Minto Road, Minto. The bus was owned by Giovanni Oliveri Enterprises Pty and driven by Mr Harold Bruce Bisby (the defendants). The motor vehicle was owned by R L and D Investments Pty Ltd (the plaintiff). It was driven by Mrs Doris Short. The damage to each vehicle was approximately $20,000.

2 Mrs Short and her company commenced an action for damages in the Local Court. The defendants denied responsibility. They filed a cross claim, claiming the damage to the bus.

3 The action was heard by Mr W Brydon, Local Court Magistrate. On 9 February 2001, his Worship gave judgment. He found that Mrs Short had been negligent. There had been no negligence by Mr Bisby, the bus driver. He therefore entered a verdict for the defendants on the plaintiff's action, and a verdict for the cross claimant (the bus company) in its action against Mrs Short. The verdict was for $23,784.60, plus interest, plus costs.

Jurisdiction of the Supreme Court

4 By Amended Summons, R L and D Investments Pty Ltd appeals against the orders made in the Local Court. Before dealing with the merits of that appeal, it is as well to be clear on the jurisdiction which can be exercised by the Supreme Court on such an appeal.

5 Section 104(5) of the Justices Act, 1902, is in these terms:

"104(5) Appeals by parties to civil proceedings
A party to any proceedings under the Local Courts (Civil Claims) Act 1970 may appeal under this Division to the Supreme Court as provided for by section 69 of that Act."

6 Section 69 of the Local Courts (Civil Claims) Act 1970, is as follows:

"69 Appeal
(1) Subject to subsection (2), all judgments and orders of a court exercising jurisdiction under this Act shall be final and conclusive.
(2) A party to proceedings under this Act who is dissatisfied with the judgment or order of the court as being erroneous in point of law, may appeal to the Supreme Court therefrom.
(2A) However, in the case of proceedings in the Small Claims Division of a court, an appeal under subsection (2) lies only on the ground of lack of jurisdiction or denial of natural justice.
(3) The provisions of Part 5 of the Justices Act 1902, apply, to the extent to which they are applicable, to appeals under subsection (2) in the same way as they apply to appeals to the Supreme Court under those provisions."

7 The Small Claims Division of the Local Court deals with claims not exceeding $3,000. It therefore has no relevance. Two issues arise:

· The first is whether s69(3) of the Local Courts (Civil Claims) Act 1970, by the incorporation of Pt 5 of the Justices Act 1902, expands the basis upon which the Supreme Court may interfere beyond an error of law?

· The second issue concerns the meaning of the phrase "error of law". Are there circumstances in which findings of fact may be attacked as an error of law?

Questions of Mixed Fact and Law

8 The Amended Summons, and the submissions made by both parties, assumed that the Court had jurisdiction (with leave) where the question was one of mixed fact and law. There is some support for that assumption. In State Rail Authority v Smith [2000] NSWSC 334, Simpson J said this:

"3. But s69(3) makes the new provisions of Pt 5 of the Justices Act also applicable to appeals under sub s(2). Section 104 of the Justices Act is the introductory section of Division 2 of Pt 5 of that Act. Section 104(1)(b) confers a right of appeal, by the leave of this Court, on questions of mixed fact and law. By sub s(3) a party to proceedings under the Civil Claims Act has the benefit of the provisions of Pt 5. That includes s104(1)(b)."

9 However, Sully J, in Carr v Neill [1999] NSWSC 1263, took a different view. Referring to a submission that the jurisdiction conferred by s69(2) of the Local Courts (Civil Claims) Act 1970 had been expanded by reference to s104(1)(a)(b) and (c) of the Justices Act 1902, his Honour said this:

"11. In my opinion, this submission is unsound. It is unsound because, in my opinion, it cuts across the plain provisions of section 102(3). It would be entirely inconsistent with the plain provisions of section 69(2) of the Local Courts (Civil Claims) Act 1970 to treat an appeal brought to this Court under that very limited and particular provision, as having been extensively expanded by the provisions of sub-section 104(1) of the Justices Act. "

10 I prefer, with respect, the view of Sully J. Section 104(1) of the Justices Act, is plainly dealing with defendants in criminal proceedings. Section 69(2) of the Local Courts (Civil Claims) Act expressly states that appeals from Local Courts are to be confined to judgments "erroneous in point of law". Sully J, in Carr v Neill (supra), said this:

"12. ... The true relationship between section 69 of the Local Courts (Civil Claims) Act , and Part 5 of the Justices Act is, in my opinion, that section 69 of the Local Courts (Civil Claims) Act confers the jurisdiction which is relevant to the present case; while Part 5, and in particular section 104, of the Justices Act provides the procedural machinery by means of which a section 69 appeal is to be brought in fact before this Court."

11 The appeal is, therefore, confined to errors of law. As I will shortly describe, the Court was confronted by conflicting evidence and competing inferences. The learned Magistrate plainly understood (and did not mistake) the concept of negligence, and the companion concept of contributory negligence. Most of the complaints made on behalf of the plaintiff concerned the way in which his Worship resolved these conflicts. In that context, it is important to be clear on what is, and what is not, an error of law.

Error of Law

12 In Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126, Jordan CJ considered the nature of an appeal on a question of law. He distilled from the authorities a number of propositions. Relevantly, he said this (omitting references): (at 138)

"(3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences.
(4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences, or, (c) if it has misdirected itself in law."

13 The issue has been considered in a number of cases since that time, including Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Mahoney v Industrial Registrar of NSW & Anor (1986) 8 NSWLR 1; Haines v Leves & Anor (1987) 8 NSWLR 442; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Gangemi Holdings Pty Ltd v Salter & Ors [1999] NSWSC 1004; Carr v Neill [1999] NSWSC 1263; SRA v Smith [2000] NSWSC 334. Arising from these authorities, a number of broad propositions can be stated:

· First, there is no error of law in simply making a wrong finding of fact (Australian Broadcasting Tribunal v Bond (supra) per Mason CJ at 341), unless there is no evidence to support that finding.

· Secondly, it does not amount to an error of law if the finding of fact, or the inference (or the refusal to make a finding of fact or draw an inference) is perverse, in the sense that it is contrary to the overwhelming weight of evidence (Glass JA in Azzopardi v Tasman UEB Industries Ltd (supra) at 155).

· Thirdly, it is not an error of law even if the reasoning process by which the Court reaches its conclusion of fact is demonstrably unsound or illogical (Menzies J in R v District Court: Ex Parte White (1966) 116 CLR 644, at 654).

· Fourthly, there is limited exception (which has no application in this case) in relation to decisions of fact in the context of a statutory description. In such a case there may be an error of law if the decision on the facts is one which could not be reasonably entertained, or supported, if the tribunal had properly understood the true construction of the relevant enactment (Mahoney v Industrial Registrar of NSW & Anor (supra) per Hope JA at 1 and Samuels JA at 5).

14 There will, however, be an error of law in the circumstances described by Mason CJ (Brennan J agreeing) in Australian Broadcasting Tribunal v Bond (supra): (at p 355)

"The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law."

The Evidence before the Magistrate

15 As mentioned, the accident occurred at 8.20 am on Monday 22 June 1998. Mrs Short was on her way to work. She and her husband owned a business at the Minto Shopping Centre. The centre was on Minto Road, not far from the Minto Railway Station. Mr and Mrs Short had owned the business for 18 or 19 years. Mrs Short worked six days a week. She drove to work each day, parking her car in the carpark in front of her business.

16 A plan of Minto Road was prepared by a surveyor, on the instructions of Mrs Short. Minto Road is narrow, being 11.5 metres wide. It runs north/south. Mrs Short drove her vehicle in a northerly direction, past a bus turning bay at the Minto Railway Station. She continued driving along Minto Road until she was opposite the carpark.

17 According to the plan, the driveway giving access to the carpark was about 90 metres from the northern end of the bus turning bay. Mrs Short said that she intended to make a right hand turn into the carpark. As she drove along Minto Road at 20 to 30 kilometres per hour she noticed a bus parked in Minto Road on her left, that is, the western kerb. Because the road was narrow, and the bus was wide, she moved to her right, so that she was in the centre of the roadway. According to her evidence, there was no centre line. However, during this manoeuvre her vehicle straddled the imaginary centre line. Whilst passing the bus, Mrs Short reduced speed.

18 Having passed the bus, Mrs Short said that she had to bring her vehicle back onto its correct side of the road for the short distance before she made the right hand turn. She did so, moving to the left. There were no other vehicles parked on the western kerb beyond the bus. There was no traffic coming towards her. She put on her right hand blinker. She checked the rear vision mirror and could see nothing. She further slowed down to about 5 or 10 kilometres per hour, and then began to turn to the right from a position close to the centre line of the road. Almost immediately, her vehicle was struck from behind. The accident occurred within a matter of seconds after passing the bus. Mrs Short later determined that her vehicle had been struck over the rear back wheel by the bus.

19 The vehicle spun around. It was propelled towards the eastern side of the road, where it struck a parked vehicle near a pole. An ambulance was called. The ambulance officer prepared a report which included these words:

"(Patient) states she was doing a U-turn when she was hit by a bus at slow speed."

20 Mrs Short was taken to hospital. She was later interviewed by Snr Const Rafter. The interview took place a number of hours after the accident. Snr Const Rafter made a note of Mrs Short's words. She was invited to sign his notebook, and did so. The note was in these terms:

"Q. As you were travelling on Minto Road just prior to the accident, do you remember pulling your car to the left hand side of the road and then swinging across the flow of traffic to make a U-turn?
A. No, I just turned to do a U-turn in front of the shops."

21 Snr Const Rafter's question, no doubt, reflected a view he had formed, having been at the scene, and having spoken to the bus driver, amongst others.

22 The plaintiff tendered a statement of Ms Amanda Reghenzani. She was not available to give evidence. Ms Reghenzani confirmed the plaintiff's account that there was a bus parked opposite the Minto shops. She said the accident happened "so quick", perhaps two or three car lengths after the parked bus. Ms Reghenzani said that the bus was going very fast. She described what happened in these words:

"I saw a bus was parked on Minto Road opposite the shops. A Celica driven by Mrs Short went past the bus and slowed down as Mrs Short put her right indicator on to turn right into carpark. When stopped another bus came from behind and smashed into the rear of Mrs Short's car."

23 Ms Reghenzani said that Mrs Short's vehicle was facing "straight on", so that the bus struck her vehicle in the rear. She also said that Mrs Short was not doing a U-turn.

24 The plaintiff called Ms Jane Wilson, a passenger on the bus. Ms Wilson said that she boarded the bus a couple of stops before Minto Station. She was seated behind the driver. Throughout the journey, a woman aged about 40 stood alongside the driver, talking to him. Ms Wilson was able to recount aspects of their conversation.

25 The bus pulled into the turning bay at the Minto Station. It then proceeded north along Minto Road. There was another bus parked on the western kerb of Minto Road, "just after leaving the railway station". Ms Wilson said that the bus driver and the woman "were talking the whole way down to the accident" (transcript p 3, 14.12.00). She added (p 4):

"Q. From the time you left the Minto Railway Station to the time of the accident, what was the woman doing?
A. As far as I can remember she was still talking to the driver."

26 In cross examination, Ms Wilson said that she later saw a sign in Mrs Short's shop window, calling on people to come forward who had witnessed the accident. She knew Mrs Short, having previously been to Mrs Short's shop to obtain loans on various items, including her son's Playstation.

27 Ms Wilson said that she saw the crash. The damage to Mrs Short's vehicle looked to be on the side at the back. She did not speak to the police after the accident. At that stage she did not want to become involved.

28 Mr Bisby, the bus driver, gave evidence. He was driving the bus north along Minto Road. There was no parked bus on the western kerb. Suddenly a blue car (Mrs Short's vehicle) came across in front of him. He was doing 50 to 55 kph. He applied the brakes. However, the front left hand side (that is, the passenger's side) collided with the side of the blue car, above the rear wheel. Photographs of the bus were tendered. They depicted damage to the bumper bar on the near-side (that is, the passenger's side) beneath the headlight. The area damaged extended several feet from the side of the bus.

29 In cross examination, Mr Bisby acknowledged that a woman had been standing talking to him during the course of the journey. The woman helped Ms Wilson onto the bus. Mr Bisby said he did not know whether she was still standing next to him when he drove off from Minto Station. The following questions were put: (transcript 14.12.2000, p 23)

"Q. You say you didn't see a bus I think was your evidence, you didn't see a bus parked on the side of the road?
A. No.
Q. Is that because you were talking to the woman that was standing along side of you?
A. No.
Q. Well, you've heard evidence from Mrs Wilson that she overheard a conversation that this was your first day back from holidays?
A. That's correct, it was.
Q. So you've had a conversation with this particular woman about your holidays?
A. It's possible I mentioned it yes. She is a regular customer and I knew her.
Q. The reason you didn't see a bus parked on the side of the road is because you were busy talking to the woman, isn't it?
A. No.
Q. Could the bus have been there and you didn't see it?
A. No.
Q. You say you definitely didn't see a bus?
A. That's correct."

30 Mr Bisby said that his bus was in the left lane, close to the centre of the road. All he knew was that the car pulled in front on him. It shot out of nowhere. He did not know where it came from. Suddenly it was 5 or 10 feet in front of him. It was definitely not in the centre lane.

31 The defendants also called the police officer, Snr Const Rafter. Snr Const Rafter's statement included the following:

"4. ... I made preliminary investigations and established that prior to the accident ... vehicle QLN-723 was being driven north upon Minto Road by Doris Short, and vehicle MO-7088 was also being driven north upon Minto Road by Harold Bisby, a short distance behind QLD-723.
5. At a point about 50 metres south of Stafford Street vehicle QLN-723 attempted to make a 'U' turn on Minto Rd, and in doing so caused her vehicle to cross directly in front of omnibus vehicle MO-7088. The front of the omnibus collided with the rear off side of QLN-723, then spun this vehicle around ..."

32 Snr Const Rafter determined the point of impact as follows:

"6. The point of impact was about 50 metres south of Stafford Street, and about 5 metres east of the western kerb of Minto Road."

33 Snr Const Rafter described his interview with Mrs Short. She said that she was doing 5 kph and was just starting to turn when she was hit. She said she had not pulled to the left hand side of the road, before veering in front of the traffic. She acknowledged that she may have veered a little to the left, but not far from the lane that she was in.

34 When Snr Const Rafter came to the scene, the bus was stationery, with the off-side wheels on the centre line. It was 15 metres past the entrance to the driveway to the carpark.

35 Two other statements were tendered in the defendants' case. The witnesses were not called. The first was a statement by Mr Eric Dale. Mr Dale was aged 79 years and a retired civil engineer. He had been walking on the eastern footpath in a southerly direction. He was looking down Minto Road towards Mrs Short and the bus. Mr Dale said this:

"4. ... I got to the Auto Parts shop on the corner of the access driveway into the carpark, I saw a dark sedan car travelling north on Minto Rd, pulled off to the left hand side of the road. The driver of this vehicle paused for about three seconds, but certainly no more than five seconds before the driver put his right hand indicator on and began to move out and attempted to make a 'U' turn across the road."

36 Mr Dale said that less than a cricket pitch (that is, 22 yards) separated the car and the bus at the time the car put its indicators on. He said this:

"6. The next thing the car moved out and appeared to attempt to make a 'U' turn, and the bus appeared to be too close to take any evasive action to avoid the collision. Both vehicles then collided, and the car was pushed in my direction, colliding with a parked car pushing it into the power pole just to the rear of where I was standing, approximately two metres away."

37 The second statement was that of Ms Beverley Brien. She said this:

"5. After I completed my shopping, I came from the rear of my car and got into the driver's side door. It was then that I noticed a dark blue car, I think it was a Toyota Celica coming in a direction towards my car (indicating north) on Minto Road. When the blue car was about three or four car lengths from the front of my car, I saw it pull to the side of the roadway, she never stopped, put her right blinker on. The blinker only had time to (blink) once or twice, then swung her steeling wheel."

38 Ms Brien added:

"5. ... an Interline bus was travelling directly behind the car. The bus was only about ten or twelve feet behind her when she pulled back onto the road, and left the bus driver no room or time to avoid the collision."

The Magistrate's Findings Concerning Mrs Short

39 The learned Magistrate, in his judgment, identified the competing versions. He said this: (p 2)

"Mrs Short states that she had just commenced making her right-hand turn when she was hit from behind from what she now knows to be a bus driven by the second defendant Mr Bisby."

40 His Worship added: (p 2)

"Mr Newell also drew the Court's attention to the damage to the plaintiff's vehicle and the evidence of the defendant Bisby, particularly as to him not seeing Mrs Short's vehicle until some 10 feet away. Mr Newell concluded that Mr Bisby must have been distracted perhaps by a conversation that was taking place with a lady who was standing next (to) him, see the evidence of Mrs Wilson."

41 The defendants' case was described in these words: (p 2)

"The defendant's case is that Mrs Short was nearing the entrance to the car park at the front of her premises, when she pulled her vehicle to the left-hand side of the road. She stopped for a short time before pulling back out onto the main carriageway without adequate warning and into the path of the defendant's bus. The driver of the bus Mr Bisby was left with little or no opportunity to swerve to avoid the plaintiff's care and a collision resulted."

42 The defendants relied upon the admission made by Mrs Short that she was doing a U-turn. The damage was inconsistent with a rear-end collision. They suggested that the evidence of Mr Dale and Ms Brien was compelling as to the actions of Mrs Short.

43 Given the conflict between different versions, his Worship looked for objective evidence to provide insight. He found the photographs "persuasive independent evidence of how the accident may have occurred". He added: (p 3)

"It is clear from the photograph six that little if any damage was occasioned to the offside rear bumper of Mrs Short's vehicle. Mr Bisby's unchallenged evidence was that the first contact on his bus took place on the front nearside corner. He says that he struck Mrs Short's car on the offside rear panel not inconsistent with that suggestion there is a clear tyre tread pattern mark appearing on the front nearside of the bus as depicted in photograph one of exhibit 15."

44 His Worship added: (p 3)

"To accept Mrs Short's version as to where she was on the roadway, taking into account that portion of the bus said to have come in contact with that portion of Mrs Short's vehicle. The bus must have been either predominantly if not wholly on the wrong side of the road. There is no evidence which would suggest that the defendant's vehicle was ever on the wrong side of the road. Constable (Rafter) saw the bus on its correct side of the road, close to the centre line, when he attended. Similar evidence that the bus had been in that position was given by Mr Bisby."

45 Mr Brydon LCM therefore reached the following conclusion: (p 3)

"I did not accept that Mrs Short's vehicle was in the position she claims immediately prior to the accident, that is close and parallel to the centre line of the road. Having made that finding, it lends further support to accepting the view that Mrs Short was performing a U-turn as allegedly asserted by her."

46 His Worship accepted that Mrs Short had said to the ambulance officer and Snr Const Rafter that she was doing a U-turn. He did not accept that she had looked in the rear vision mirror before making that turn.

47 The learned Magistrate then discussed the other evidence. Ms Reghenzani, having not been cross examined, could not attract the same weight as evidence that had been tested. Her suggestion that the bus struck the rear of Mrs Short's vehicle, which was then facing straight ahead, was inconsistent with the photographic and other evidence. Mrs Short was plainly at an angle. Her vehicle, on the evidence, was struck above the rear off-side (that is, driver's side) wheel.

48 His Worship then dealt with the witness statements of Mr Dale and Ms Brien. He said this: (p 4/5)

"On the question of weight I also note similarly that the evidence of Mr Dale and (Ms Brien) was not tested on oath under cross examination. As to the position of Mrs Short's car on the roadway on the day in question I find on the evidence before me that her car had veered to the left-side of the roadway, off the main carriageway and remained stationary for a very short time. I accept that she put her right-hand indicator on consistent with the evidence of Dale and (Ms Brien), and thereafter commenced to turn, in the process of which she came into the path of the bus driven by Mr Bisby."

49 The Magistrate concluded, therefore, that Mrs Short had been negligent. He said this: (p 5)

"I find that she had failed to take adequate precautions to determine whether it was safe to drive across the northbound carriageway and that she failed to keep a proper lookout and failed to give way to anything that may have been on that northbound carriageway."

The Magistrate's Findings Concerning Mr Bisby

50 The learned Magistrate then determined whether Mr Bisby had also been negligent, contributing to the collision. Again he set out the competing cases. He said this: (p 5)

"Mr Bisby says that he drove down Minto Road and at (no) time did he see the plaintiff's car on the road being driven. The first time he saw the vehicle was when he said that he was approximately 10 feet away and it commenced to move into his path."

51 The plaintiff contended that Mr Bisby had failed to keep a proper lookout, due in part to the female passenger standing next to him. On this issue, his Worship said this: (p 5)

"There is evidence which I can accept that this woman who was not identified in the proceedings, was standing next to the driver contrary to signs within the bus and the two had been talking previously about Mr Bisby's recent holiday. However, there is no evidence that the two were talking immediately before the accident and nor that the course of driving was affected by her presence. Mr Newell submits that there was an inference that the lack of attention, or distraction, should be drawn by the fact that Mr Bisby failed to see the plaintiff's car at all until it commenced to turn. It was inferred that had he seen the vehicle he should have observed the right-hand blinker being on and should have been put on notice of Mrs Short's intended actions."

52 His Worship then made a finding in these terms: (p 5)

"I find on the evidence, see the statements of Dale and (Ms Brien), that the bus was travelling at such distance behind the plaintiff that in my view Mr Bisby should have been expected to observe at least Mrs Short's vehicle veer over to the left-hand side."

53 His Worship then drew attention to the findings he had made, first, that the plaintiff's vehicle stopped for a short time whilst Mr Bisby's bus proceeded along Minto Road, and, secondly, that Mrs Short engaged her blinker a short time before moving out onto the road. Referring to Trompp v Liddle (1941) 41 SR (NSW) 108, his Worship said a driver was entitled to assume that other drivers would observe the road rules. He added: (p 6)

"Accepting Mr Bisby did not pay due attention to the plaintiff's car, then at the side of the road, was there anything that he should or could have done which would have prevented the accident or damage suffered to his bus. I am satisfied on the evidence that due to the indicator being put on Mrs Short's car only seconds before the plaintiff's car moved out into the carriageway, there was insufficient time for Mr Bisby, even if he had been carrying out a proper lookout, to have done anything or prevented the accident from occurring."

54 His Worship therefore found Mr Bisby had not been negligent.

Errors of Law?

55 Was there evidence to support the finding that Mrs Short stopped her vehicle on the inside lane (the western lane)? Mrs Short said that she slowed her vehicle to 5 kph, but did not stop. Mr Bisby simply did not see her until she crossed his path. Ms Reghenzani suggested that Mrs Short did stop momentarily, but in the lane near the centre of the road. Ms Brien specifically said that Mrs Short's vehicle did not stop. The suggestion that Mrs Short stopped comes from the statement of Mr Dale, which for convenience I repeat:

"4. ... I saw a dark sedan car travelling north on Minto Rd, pulled off to the left hand side of the road. The driver of this vehicle paused for about three seconds, but certainly no more than five seconds before the driver put his right hand indicator on and began to move out and attempted to make a 'U' turn across the road."

56 Mr Dale does not say that Mrs Short stopped. He says that she "paused for about three seconds, but certainly no more than five seconds", before moving out. Is that consistent with Mrs Short reducing speed to 5 kph? It may be. The action of Mrs Short, as found by the learned Magistrate on the basis of Mr Dale's statement, was odd. She drove along Minto Road. She was repeating a journey she had made 6 days a week for 19 years. At a point opposite a carpark where she habitually parked, she stopped for three to five seconds. Why would she do that? She was never asked in cross examination. It was not suggested to her that she had stopped. All that was suggested was that she had pulled over to the left.

57 This was a crucial finding. If Mrs Short did not stop, so that she was on the carriageway somewhere, ahead of Mr Bisby for his entire journey along Minto Road, then his failure to see her was more than momentary. If Mrs Short's vehicle were moving, however slowly, Mr Bisby must shoulder a significant proportion of the blame for the collision.

58 However, the issue is not whether this Court agrees with the findings of the learned Magistrate. The issue is whether there was evidence that Mrs Short stopped her vehicle. I believe that it was open to the learned Magistrate to infer from Mr Dale's statement that she had.

59 Was it also open to infer that Mrs Short had stopped in the left hand lane? Mrs Short said that she was close to the centre of the road when she began her turn. She was supported by Ms Reghenzani. Mr Dale said that Mrs Short "pulled off to the left hand side of the road" before she put her indicator on, and began to move out, as if to make a U-turn. He did not specify where, on the left hand side of the road, Mrs Short's vehicle was. He was, of course, not cross examined. Ms Brien said that she saw Mrs Short "pull to the side of the roadway" and she later describes her "pulling back onto the roadway". She, likewise, was not cross examined as to exactly what she meant.

60 There was no question that Mrs Short did pull to the left. She thought that she nonetheless remained within the outside lane. On a road surface that she said to be unmarked, it would not be surprising if Mrs Short were partly occupying the inside lane. If that be right, how far did she intrude into the inside lane? The suggestion that Mrs Short was intending to do a U-turn has some relevance to that issue. If she were doing a U-turn, she may travel further to the left, towards the western kerb, to give herself room to make the turn.

61 However, was Mrs Short doing a U-turn? She denied that she was. She had no recollection of having said that she had to either the ambulance officer or the police officer. Again, such a manoeuvre, having arrived at the entrance to her place of work, would be odd. It was, nonetheless, certainly open to the Magistrate to accept that that is what she said, and intended. However, that does not conclude the issue. It will be noticed that the entrance to the carpark outside Mrs Short's shop was at an awkward angle. It was shaped to make it easy for traffic driving south along Minto Road to enter the carpark. For vehicles, such as that of Mrs Short, travelling north, it would have been necessary to make a sweeping turn, rather like a U-turn, to comfortably enter the carpark at that angle.

62 This was a manoeuvre which Mrs Short habitually made. Had I been finding the facts, I would have found that she had swung to the left, partly into the western lane, and from that position, having put her blinker on, had begun to make the right hand turn when the collision took place. That finding, no doubt, would have justified a reduction in Mrs Short's verdict on the basis of contributory negligence. Regulation 71(1) under the Motor Traffic Regulations 1900, obliges a motorist, who is making a right hand turn, to do so from a position close and parallel to the centre of the roadway.

63 However, my view of the facts is not the test. Was there evidence from which the learned Magistrate could find that Mrs Short had pulled off the main carriageway, into the inside lane? Mr Dale and Ms Brien viewed these events from the opposite side of the road. Their vantage point may have made it difficult to judge where, in relation to the kerb, Mrs Short's vehicle was on the carriageway. Mr Dale, as mentioned, simply said that Mrs Short "pulled off to the left hand side of the road", an observation which is consistent with the description provided by Mrs Short of her actions. However, Ms Brien said that she saw the blue car "pull to the side of the roadway" and then the car "pulled back onto the road". That is evidence capable of justifying the Magistrate's finding. I would not find error upon the basis of no evidence in respect of such a finding.

64 The learned Magistrate made the following further finding, in the context of an evaluation of Mrs Short's version, which would require the bus to have been "either predominantly, if not wholly, on the wrong side of the road": (p 3)

" There is no evidence which would suggest that the defendant's vehicle was ever on the wrong side of the road. Constable (Rafter) saw the bus on its correct side of the road, close to the centre line, when he attended. Similar evidence that the bus had been in that position was given by Mr Bisby." (emphasis added)

65 However, I believe that there was evidence capable of suggesting that the defendants' vehicle was on the wrong side of the road, both on the journey to the point of collision, and at the point of impact. His Worship found, appropriately, that the first contact was, in the case of the bus, on the front bumper bar on the passenger's side, and in the case of the car, in an area above the driver's side (off side) rear tyre. To fix the position of the bus on the road's surface, that finding must be combined with the point of impact, as identified by the evidence. The evidence of Snr Const Rafter that the point of impact was 5 metres from the western kerb was unchallenged. On a road 11.5 metres wide, that is only 0.75 metres from the imaginary centre line. The observation by Snr Const Rafter, when he got to the scene, that the bus was on the correct side of the roadway, is not determinative. The location of the bus after it came to a halt is not the issue. Rather, the issue is where the two vehicles came into collision. If the point of impact was almost at the centre of the roadway, and the damage to the bus was on passenger's side below the headlight, it follows that the bus must have been significantly over the centre line.

66 Such a suggestion was not surprising on the evidence. Mrs Short said that there was a bus parked in Minto Road. She moved to the centre of the road to pass the bus because it was wide. Mr Bisby denied that there was a parked bus. However, it was said against him, and found by the learned Magistrate (at least in part), that he had failed to keep a proper lookout. His failure to remember the bus may have been evidence of his inattention and distraction. Ms Reghenzani saw the bus. Ms Wilson (a passenger of Mr Bisby's bus) saw the parked bus. She said that it was a "Buslines bus". She remembered a female police officer allowing a motorist to drive around the bus in order to take her children to school. Mr Dale did not refer to the parked bus, nor Ms Brien. Since they were not cross examined, it cannot be assumed that they did not see the bus.

67 I believe, therefore, that there was error requiring me to remit the matter to the Local Court.

68 Further, in the context of the cross claim, the learned Magistrate said this: (p 5)

"There is evidence which I can accept that this woman who was not identified in the proceedings, was standing next to the driver contrary to signs within the bus and the two had been talking previously about Mr Bisby's recent holiday. However, there is no evidence that the two were talking immediately before the accident and nor that the course of driving was affected by her presence." (emphasis added)

69 However, there was evidence from Ms Wilson, which I have set out above, that the woman was talking to the bus driver right up until the time of the accident. Indeed, as I have said, that was the obvious explanation for the driver not seeing the parked bus, nor indeed Mrs Short's car. It is clear that the learned Magistrate did not take that evidence into account when determining the issues. I believe not to have done so was an error of law.

Order

70 I therefore make the following orders:

1. The appeal is allowed.

2. The matter is remitted to the Local Court to be determined according to law.

3. The defendants should pay the plaintiff's costs.

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Last Modified: 11/22/2002