Savino v Schieven
[2015] VSCA 67
•23 April 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2014 0147
| John Savino |
| v |
| John Schieven |
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| JUDGES: | WARREN CJ, FERGUSON and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 April 2015 |
| DATE OF JUDGMENT: | 23 April 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 67 |
| ORDERS APPEALED FROM: | Orders of Williams J dated 31 October 2014. |
TORT – Negligence – Jury trial – Motor vehicle accident – Verdict for defendant – Whether verdict open to jury on evidence most favourable to defendant – Duty of care by defendant to plaintiff – Verdict in favour of defendant was open to jury on evidence adduced – Application for leave to appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| Applicant | Mr A Ingram Ms M Pilipasidis | Slater & Gordon |
| Respondent | Mr M Ruskin QC Mr D Oldfield | Transport Accident Commission |
WARREN CJ:
I agree with the reasons of Kaye JA. I too would dismiss the application for leave to appeal.
FERGUSON JA:
I also agree with Kaye JA.
KAYE JA:
On 14 August 2011, the applicant was injured when a motor cycle ridden by him collided with a motor vehicle driven by the respondent in Plenty Road, Bundoora. The applicant commenced proceedings in the Supreme Court claiming damages in respect of his injuries. At the trial of the proceeding, the jury returned a verdict that there was no negligence by the respondent that was a cause of the applicant’s injuries. The applicant seeks leave to appeal against the verdict and the judgment entered upon it.
Before the hearing of the application, the Court informed the parties that it would hear and determine the appeal instanter if the application for leave was granted.
The sole ground of the proposed appeal is that the verdict of the jury was not open on the evidence adduced at the trial.
The evidence at trial
Before the collision the applicant had been riding his motor cycle south in the bicycle lane along Plenty Road, Bundoora, with the intention of turning into the left hand turn lane to enter the River Gum Shopping Centre that was located on Plenty Road. His friend, Claudio Villa, was riding his motor cycle alongside him. The respondent was travelling in the same direction, in the left hand lane of the carriageway. As the respondent’s vehicle approached the shopping centre, he executed a left hand turn, intending to cross the bicycle lane in order to enter the left hand turn lane to the shopping centre. As he did so, the motor cycle ridden by the applicant collided with the front passenger door of his vehicle.
The applicant gave evidence that shortly before the collision he had been travelling at between 50 kph and 60 kph. He said that he had travelled in the bicycle lane for approximately 15 metres before the left hand turn, and in doing so had passed approximately two vehicles which were travelling south in the left hand lane of the carriageway. He said that suddenly a car in the left hand lane came out in front of him. He did not see an indicator operating on the respondent’s vehicle before it changed lanes into the path of his vehicle. The collision occurred just before the commencement of the left hand turn lane to the shopping centre. He applied the brakes on his motor cycle when he saw the respondent’s vehicle diverging into his path, but he did not have sufficient time to stop before the collision.
In cross-examination, the applicant stated that as he and Mr Villa rode along Plenty Road, they were, initially, unimpeded by other traffic, until they came close to where the accident occurred. At that stage, they were travelling at the speed limit, namely 80 kph, but they slowed to 50 kph to 60 kph as they approached the other vehicles. He agreed that, instead of entering the bicycle lane, he could have remained in the left hand lane behind the vehicle that was travelling slowly in front of him. In particular, he agreed that he had crossed into the bicycle lane at a point where the line on the roadway, demarcating that lane, was unbroken, and that he could have remained in the left hand lane, until that line became broken shortly before the left hand turn into the shopping centre. The applicant stated that he was only in the bicycle lane for a couple of seconds before the impact occurred, travelling at 50 to 60 kph.
Claudio Villa gave evidence that he was riding his motor cycle side by side with the applicant, and that he was in the left hand traffic lane. He said that as they approached the vehicles that had slowed down in front of them, the applicant had overtaken him. They were both travelling between 50 kph and 60 kph. He said that the applicant had been in the bicycle lane for about three car lengths before the collision, and that the vehicles that they were overtaking were travelling at approximately the same speed. After the applicant had overtaken him, a vehicle came from the right hand lane into the bicycle lane and collided with the applicant’s motor cycle. He did not see an indicator operating on that vehicle before the collision. At that stage, Mr Villa’s motor bike was approximately three or four car lengths behind the applicant.
In cross-examination, Mr Villa stated that while the applicant and he were travelling south on Plenty Road, the vehicles in front of them slowed down to the traffic lights. The applicant and he had pulled into the bicycle lane in order to pass them. He confirmed that when the collision occurred, his motor bike was at least three car lengths behind the applicant’s motor bike. He agreed that the skid marks on the roadway, left by the applicant’s motor cycle, depicted on the photograph, commenced just before the end of the unbroken line that separated the bicycle lane from the left lane on the carriageway. He stated that the respondent’s vehicle had come from the right hand lane, and not the left hand lane, before entering the bicycle lane.
A witness to the accident, Gregory Roberts, gave evidence that he had been travelling in the line of traffic behind the respondent, at no more than 40 kph, and perhaps 30 to 40 kph. He said that there was a large four wheel drive vehicle, and perhaps one other vehicle, immediately in front of his vehicle, and he thought that the respondent’s vehicle was directly in front of that four wheel drive vehicle. He heard the noise of the motor bikes, looked in the rear vision mirror, and saw that they were approaching. He then saw the respondent’s vehicle veer to the left. He said that the turn executed by the respondent was not abrupt, but it was ‘quite a positive sort of turn’. In cross-examination, he said he could not say whether the indicator on the respondent’s vehicle was operating, because his view of it was interrupted by the vehicles that were in front of him.
The respondent said in evidence that he was travelling south along Plenty Road in the left of two lanes of motor vehicle traffic. His wife was in the front passenger seat of the vehicle. They were intending to turn left into the shopping centre. As his vehicle approached the turn off to the shopping centre, the traffic in front of him started to bank up, and his vehicle came to a stop a short distance from the left turn lane to the shopping centre. He said that while his vehicle was stationary, he was aware that there were vehicles behind him and in the right hand lane. He was also aware of the bicycle lane on his left hand side, but no vehicle or bicycle had passed him in that lane.
The respondent stated that when the traffic in front of him began to move forward, he commenced to move also. He then turned on his left hand indicator. He could recall doing so, because he habitually did that, and because, immediately after the accident, he discussed having done so with his wife. He said that he looked in his rear vision mirror on the windscreen, and then looked to the left side mirror, but he did not see any vehicle approaching. He did a head check to his left hand side, and again he did not see anybody approaching. He then commenced to turn his vehicle towards the left hand turn lane to the shopping centre at a point where the line on the roadway, separating the bicycle lane from the left hand turn lane, was broken. At that stage, he was travelling at no more than 15 kph. He said that as his vehicle commenced to turn towards the left turn lane, and after doing his head check to the left, he then looked ahead in the direction in which he was travelling. The turn that he made was not a sharp turn, but rather he veered into the left hand lane. He did not see the respondent’s motor cycle before the collision. As a result of the impact, his vehicle rolled onto its passenger side.
In cross-examination, the respondent said that he had last looked over his shoulder, to make a head check, almost a couple of seconds before he started to move, and perhaps three or four seconds before doing so. He agreed that approximately three or four seconds passed between when he last looked over his shoulder and the happening of the accident. He confirmed that immediately after the accident, his wife had asked him if he had turned on the indicator, and he said he had done so. He said that his wife was then hysterical and was fairly upset. He confirmed that before the accident, his vehicle had been stationary in the left hand lane, and that, at the time of the collision, his vehicle was travelling no more than 15 kph.
The respondent’s wife, Sylvana Schieven, also gave evidence. She said that she was in the front passenger seat of the respondent’s vehicle at the time of the collision. She said that as they approached the turn off to the supermarket, the traffic lights at the next street had turned red, and their vehicle came to a stop. At that stage, the vehicle had not reached the left turning lane. The traffic lights then changed, she heard the indicator of the vehicle turn on, and then the vehicle started moving slowly as the traffic ahead of them commenced to move. At that stage, they were ‘just crawling along’. She said that she was a ‘back seat driver’, and that she did a quick head check, because she had developed the habit of doing so when she taught her children how to drive. When she did the head check, she did not see anything approaching. The respondent’s vehicle started to move over to the left, and then she heard a bang. In cross-examination, she said that she had no recollection of asking the respondent whether he had put on the indicator before the accident. However, she confirmed that she did hear the indicator turn on. She said that there was ‘no way’ that the respondent’s vehicle was doing between 30 and 40 kph at the time of the accident.
The final witness on the issue of liability was Detective Senior Constable Paul Mullingar, who was called to give evidence on behalf of the respondent. Detective Senior Constable Mullingar was called to the scene of the incident, and had carried out an investigation of it. He said that as a result of his observations, he concluded that the accident occurred south of the point at which the unbroken traffic line, separating the bicycle lane from the left hand lane, became a broken line. He said that at that point, a vehicle was permitted to turn from the left hand lane across the bicycle lane, in order to enter the lane to the shopping centre.
Submissions on application
On behalf of the applicant, it was submitted that it was not open to the jury to find that the indicator on the respondent’s vehicle was operating at and shortly before the time of the collision, and that the respondent had checked his mirrors and had done a head check before commencing to turn left across the bicycle lane. It was submitted that the respondent failed to provide any explanation for not having seen the applicant immediately before the collision. Accordingly, it was submitted that the jury was bound to find that the respondent had failed to keep a proper lookout and had thereby caused the accident in which the applicant was injured.
In response, it was submitted, on behalf of the respondent, that it was open to the jury to conclude that the respondent did look in the mirrors, and that he did conduct a head check, before diverging into the bicycle lane. It was submitted that the applicant was travelling at a speed significantly faster than the vehicles in the left traffic lane beside him, and that he had only been in the bicycle lane for a short period of a ‘couple of seconds’ before the collision. In those circumstances, it was open to the jury to accept the submission, that had been made on behalf of the respondent at trial, that the applicant realised he was going to collide with the respondent’s vehicle almost immediately after the applicant had diverted into the bicycle lane. Accordingly, it was submitted, in those circumstances it was open to the jury to accept the submission that the applicant entered the bicycle lane after the respondent had made his head check, and in circumstances in which the respondent had no realistic opportunity of seeing him before the collision.
Legal principles
The principles, governing an appeal against a jury’s verdict, are well established. The test for this Court is not whether it considers that the jury should have come to a different conclusion. Rather, the question is whether the verdict of the jury was not reasonably open on the evidence. In that respect, the applicant must demonstrate that the verdict of the jury was ‘irrational’, in the sense that it could not be supported on any view of the evidence before it.[1] In applying that test, the appellate court is required to act on the view of the evidence that is most favourable to the respondent.[2] It has been emphasised in the authorities that where the jury has found against the appellant who carried the onus of proof before it, the onus of proving error on behalf of the jury is difficult, and is ‘… only likely to be satisfied in rare instances’.[3]
[1]See for example Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33, 41 (Mason CJ, Deane, Toohey and McHugh JJ); Pujick v Savic, Cox and Cudgewa Dairy Co Ltd [1971] VR 632, 634; Pippos v Craig [1993] 1 VR 603, 614 (Southwell J), 625 (Tadgell J); Capers v State of Victoria [2011] VSCA 97, [35] (Ashley JA); Ibrahim v Davis [2013] VSCA 238, [5].
[2]Pujick v Savic, Cox and Cudgewa Dairy Co Ltd [1971] VR 632, 634; Capers v State of Victoria [2011] VSCA 97, [35]; Duma v Mader International Pty Ltd [2013] VSCA 23, [48] (Tate JA).
[3]Pujick v Savic, Cox and Cudgewa Dairy Co Ltd [1971] VR 632, 634; Capers v State of Victoria [2011] VSCA 97, [35] (Ashley JA); Munday v Court [2013] VSCA 279, [27]-[29] (Priest JA).
In applying those principles, it is important to bear in mind the advantages enjoyed by the jury which are not available to the court on appeal.[4] The jury had the opportunity to assess the reliability and credibility of the witnesses called before it. It was better placed to understand some parts of the evidence, and, in particular, explanations given by witnesses by reference to photographs and sketch plans tendered in evidence. The jury had the opportunity of hearing and considering the evidence as it was revealed to it over a period of some few days. Each of those factors are real advantages which should not be underestimated. A bare reading of the transcript, by comparison, is, I consider, an inferior substitute for the advantageous position of the jury to which I have referred.
[4]Munday v Court [2013] VSCA 279, [25] (Priest JA); Willett v State of Victoria [2013] VSCA 76, [2] (Tate and Priest JJA).
In John Fairfax Publications Pty Ltd v Rivkin,[5] McHugh J expressed the applicable principles in the following terms:
In determining whether a civil jury acted reasonably in reaching its verdict, an appellate court must approach the question on the basis most favourable to the respondent to the appeal. The question for the appellate court is not whether the verdict is right or appears to be right but whether in the light of the evidence the verdict shows that the jury failed to perform its duty. As long as the verdict cannot be described as irrational, it must stand.
[5](2003) 201 ALR 77, 80 [17].
While it has been said that the standard of care, that drivers of motor vehicles are required to exercise, is high, nevertheless the standard remains that of the reasonable driver.[6] It requires that reasonable attention be given, by drivers of motor vehicles, to all that is happening in or near the roadway, that may present a source of danger.[7] Nevertheless, the standard is not that of perfection.[8] Nor is the question, whether the duty of care has been breached, to be assessed with the wisdom of hindsight, by considering whether the accident, in which the plaintiff was injured, might have been averted by some different conduct by the defendant in the management or control of his or her vehicle.[9]
[6]Clarke v Freund (1999) 29 MVR 361, 363 [14] (Beazley JA).
[7]Manley v Alexander (2005) 223 ALR 228, 230-231 [11] (Gummow, Kirby and Hayne JJ).
[8]Mamo v Surace (2014) 66 MVR 199, 212 [60]-[61] (McColl JA).
[9]Derrick v Cheung (2001) 181 ALR 301, 304-5 [13]; Hawthorne v Hillcoat [2008] NSWCA 340, [47] (Hodgson JA).
Conclusions
Applying those principles, I do not accept the submission on behalf of the applicant that the jury was bound to find that the respondent did not operate the indicator on his vehicle, and that he did not check his mirrors or undertake a head check, before commencing to veer left across the bicycle lane.
Both the respondent and his wife gave evidence that the respondent did engage the indicator before the respondent commenced to turn left. There was nothing inherently improbable about the evidence of either witness in that respect. The respondent did state, in his evidence, that immediately after the collision his wife asked him whether he had operated the indicator. On the other hand, Mrs Schieven did not recall asking the respondent that question. However, Mrs Schieven was then in an hysterical state, and she had to be extracted from the vehicle through its boot. In any event, the difference between the evidence of those two witnesses, on that fact, did not compel the jury to reject the account of both of them that the respondent did operate the indicator on the vehicle before commencing to veer left into the bicycle lane.
Nor did that factor require the jury to accept the evidence of the applicant and Mr Villa as establishing, on the balance of probabilities, that the respondent did not operate the indicator. The jury was entitled to come to a number of different conclusions in relation to that aspect of the case, none of which, logically, compelled the conclusion that it should reject the evidence of the respondent and his wife on that aspect of the case. The jury might have concluded that neither the applicant nor Mr Villa were keeping a sufficient lookout. Alternatively, as the respondent’s counsel submitted to the jury, on one view of the evidence, the applicant diverged into the bicycle lane momentarily after the respondent had commenced to turn into that lane. In those circumstances, it was open to the jury to conclude that the applicant’s first view of the respondent’s vehicle was after it had commenced to merge into the lane. Mr Villa was travelling in the left hand lane, and he may not have had sufficient opportunity to see the indicator on the respondent’s vehicle, as, on the evidence, there were a number of vehicles between Mr Villa’s motor bike and the respondent’s vehicle. Mr Roberts did not see the indicator operating on the respondent’s vehicle, but he stated that he could not say whether the indicator was operating or not. In particular, there was a four wheel drive vehicle immediately in front of Mr Roberts’ vehicle, which may have obscured his view.
The respondent gave specific evidence that he checked his mirrors, and carried out a head check, before he diverged left into the bicycle lane. His wife stated that she also conducted a head check, which was her habit. Once again, there is nothing inherently unlikely in the evidence of either of those witnesses, such that the jury was bound to reject it. The fact that neither witness observed the approach of the applicant’s vehicle did not, logically, necessitate a conclusion that the respondent did not check his mirrors, or conduct the head check, as he stated in his evidence. Once again, the fact that he (and his wife) did not see the approach of the applicant is susceptible of the same explanation, namely, that, on the evidence, his vehicle may have commenced its turn into the bicycle lane a bare moment before the applicant also entered that lane.
In this context, counsel for the applicant placed substantial emphasis on evidence given by the respondent, in cross-examination, that he commenced to diverge into the bicycle lane some three or four seconds after he had checked his mirrors and carried out the head check. Counsel submitted that, in light of that evidence, the jury was bound to conclude that the respondent had failed to keep an adequate lookout as he diverged from the left hand traffic lane into the bike lane.
That proposition on behalf of the applicant fails for two reasons. First, the evidence given by the respondent, as to the period of time between the mirror and head checks, and the stage at which he diverged into the bicycle lane, was purely an estimate. Indeed, in the same passage of cross-examination, he gave varying estimates as to that time period, ranging from one to two seconds to three to four seconds. Those estimates were manifestly not exact or accurate. The jury was not bound to base its verdict on the highest of the estimates, or to regard any of them as being precise.
Secondly, and importantly, the estimates given by the respondent as to that time lapse must be considered in the context of the consistent evidence by the respondent that he checked his mirrors, and then, without any further delay, diverted into the bicycle lane. In his evidence in chief he stated:
… indicated that we were going to start turning, because we were approaching the break, um, looked in my rear vision mirror, looked in my side mirror, had a quick head check and then started to turn as we approached the break.[10]
[10]T 307.
A little later in his evidence in chief, he stated:
… as I did my head check and started looking towards where I was going, that’s when the um, the motor cycle, hit the side of the car and I quickly pulled to the right … .[11]
[11]T 308.
Later in his evidence in chief he, again, said:
I looked in the rear view mirror first, on the windscreen, then I looked on the side mirror and the side mirror, because on the vehicles are concave, they make everything seem further away. So I did a quick head check and then started proceeding.[12]
[12]T 311.
Similarly, in the passage of the cross-examination in which he gave the estimates of time to which I have referred, the respondent stated:
It was almost the, well let me see, it was probably almost a couple of seconds. It wasn’t a long time after I did the final check then we started to move into the next lane. So however long it takes to look in the mirror — indicator, look in the mirror, look in the side mirror, back, and then turn.[13]
[13]T 318.
Based on that evidence, the jury was not obliged to find that there was any material delay between the time at which the respondent checked his mirrors and conducted the head check, and commenced to move into the bicycle lane. Rather, the jury was entitled to proceed on a view of the evidence that the respondent commenced to diverge into the bicycle lane almost immediately after completing the mirror checks and head check. Further, and understandably, the jury was entitled to consider that the respondent acted responsibly, and not in breach of his duty of care, by looking in the direction where he was going as he commenced to turn left into the bicycle lane.
Accordingly, I reject the submission made on behalf of the applicant that, based on the estimates given by the respondent, in cross-examination, of the time period between when he last checked the bicycle lane and commenced to diverge into that lane, the respondent had failed to keep a proper lookout.
Counsel for the applicant placed some reliance on the fact that, because the applicant was able to see the respondent’s vehicle merging into the bicycle lane before the collision, equally the respondent should have been able to see the applicant as the respondent commenced to merge into the bicycle lane. Self-evidently, the fact that the applicant managed to see the respondent, before the collision, does not, logically, mean that the respondent similarly ought to have seen the applicant approaching in the bicycle lane. The applicant’s vehicle and the respondent’s vehicle were in very different positions on the roadway when they each made their relevant observations. In addition, the applicant, in his evidence, stated that he did not actually see the respondent merging into the bicycle lane, but, rather, stated that he saw a sharp movement by the respondent’s vehicle to the left which cut him off. The evidence of the respondent and his wife contradicted the proposition that the respondent did in fact turn sharply into the bicycle lane, rather than veering into it. The jury were entitled to accept that evidence. Thus, the jury was not, in any event, obliged to accept the proposition that the applicant saw the respondent’s vehicle as it was merging into the bicycle lane.
In a similar manner, counsel for the applicant also placed reliance on the evidence of Mr Roberts, that he saw the applicant’s motor bike before the collision. Counsel argued that, similarly, the respondent should have been able to observe the approach of the applicant’s motor bike. However, again, that argument ignores the fact that Mr Roberts’ vehicle was in a different position to the respondent’s vehicle. In particular, Mr Roberts gave evidence that he had only just come to a stop, at the tail end of the traffic in the left lane, when he heard and observed the applicant’s vehicle approach. In addition, it is not clear whether, at that stage, the applicant was still in the left hand lane, or had entered the bicycle lane.
The key thrust of the submission made by counsel for the applicant was that the jury was bound to conclude that the explanation, why the respondent did not see the approach of the applicant’s vehicle before the accident, was that the respondent had failed to keep a proper lookout.
That proposition is not sustainable. The applicant’s evidence was that he diverged into the bicycle lane approximately 15 metres from the left hand turn lane into the shopping centre. He had passed one or two vehicles before the collision. The applicant, and Mr Villa, both stated that the applicant was driving at between 50 kph and 60 kph. The skid marks on the roadway, which resulted from the application by the applicant of the brakes on his motor bike, commenced just before the end of the unbroken line that demarcated the left hand lane from the bicycle lane. There was some dispute as to the speed at which the respondent’s vehicle was travelling, but it was open to the jury to accept the respondent’s evidence that, at the time of the collision, he was driving at approximately 15 kph.
In those circumstances, the jury was entitled to accept that the applicant entered the bicycle lane only a short distance before the point of the collision. He was travelling at a speed substantially faster than the speed of the respondent. Thus, it was open to the jury to accept the submission, made to it by the respondent’s counsel at trial, that the explanation, why the respondent (and Mrs Schieven) did not see the applicant’s vehicle, was that the respondent’s vehicle commenced to enter the bicycle lane a bare moment before the applicant’s vehicle did so.
The applicant’s counsel relied on the decision of this Court in Gui v Weston,[14] in which the court allowed the appeal of the plaintiff on the basis that the jury was constrained to find that the reason why the respondent in that case did not see the appellant, who was a pedestrian, was because the respondent had failed to keep a proper lookout.
[14][2011] VSCA 265.
In that case, the Court came to the conclusion, on the evidence, that there was no other explanation available to the jury, for the failure of the respondent to see the appellant, than that the respondent had failed to keep a proper lookout. As I have explained, that is not the case in this application. Rather, an explanation, for the failure of the respondent to see the applicant’s vehicle, was proffered to the jury, and it was supported by the evidence in the trial.[15]
[15]Cf Ibrahim v Davis [2013] VSCA 238, [24].
Further, and in any event, care must be taken, in an appeal such as this, in applying decisions by appellate courts, in different factual situations, to the present case. As counsel for the respondent correctly pointed out, findings of negligence in individual cases very much depend on the particular set of factual circumstances of each case. As such, those findings, in previous cases, do not have the status of precedents for the purpose of determining the issue that is before the court in this case.[16]
[16]Vairy v Wyong Shire Council (2005) 223 CLR 422, 425-6 [2]-[3] (Gleeson CJ, Kirby J).
In that respect, a close examination of the judgment of the court in Gui demonstrates that it is a decision very much based on the specific combination of particular factual circumstances that were before the court in that case. That decision, with respect, gives very little assistance in a case such as this, in which the facts were relevantly and significantly different, and in which the court is considering an application for leave to appeal from the verdict of a jury.
Counsel for the applicant also referred to the decision of the High Court in Manley v Alexander,[17] to demonstrate the principle that a driver of a motor vehicle is required to keep a lookout, not only for usual hazards on the roadway, but also for what might be regarded as unusual hazards of which the driver might have some notice. In that case, the High Court was concerned with a finding, not by a jury, but by a judge, at trial, that there was no negligence by the respondent (defendant). Thus, the court was not constrained by the limitations on an appellate court, to which I have referred, when considering an appeal from a verdict of a jury. Further, and again, the facts before the High Court in Manley were significantly different to the set of facts on which the jury returned its verdict in the present case.
[17](2005) 223 ALR 228.
For those reasons, I am not persuaded that there was an arguable case of error by the jury. Indeed, having read the transcript of the relevant witnesses, I do not consider that the verdict of the jury in this case was at all surprising. On the one hand, the applicant chose to enter the bicycle lane at a point earlier than he was permitted at law to do so. He entered that lane with the specific purpose of overtaking the vehicles in the left hand lane. The evidence supports the conclusion that the speed, at which the applicant was riding his motor bike, significantly exceeded the speed of the vehicles alongside him in the left hand traffic lane. The applicant intended to turn left into the shopping centre, and thus he was, or should have been, aware that vehicles driving in the left hand lane might also diverge across his path in the bicycle lane in order to enter the shopping centre.
On the other hand, as I have already stated, there was evidence on which the jury was entitled to find that, before the respondent’s vehicle diverged across the bicycle lane, the respondent engaged the left hand turn indicator on it, checked his mirrors, and did a head check, and that he did not see the applicant’s vehicle, because the respondent commenced to enter the bicycle lane a short moment before the applicant did so. Given that set of circumstances, it is not surprising, and indeed understandable, that the jury returned a verdict that there was no negligence by the respondent that was the cause of the collision in which the applicant was injured.
In order to be granted leave to appeal, the applicant must demonstrate, pursuant to s 14C of the Supreme Court Act 1986, that he has a ‘real prospect of success’ on the proposed appeal. As I have explained, an appellant, in the position of the applicant in this case, faces significant difficulty where the proposed appeal is from the verdict of a jury on an issue on which the appellant bore the onus of proof at trial. Leading counsel for the applicant in this case put all the arguments that could be mustered in favour of the grant of leave to appeal. However, for the reasons that I have set out above, I am not persuaded that there is any argument in favour of the proposed appeal that has a ‘real prospect of success’, as that phrase was explained by Whelan and Ferguson JJA in their recent judgment in Kennedy v Shire of Campaspe.[18]
[18][2015] VSCA 47, [12]-[13].
In those circumstances, the application for leave to appeal should be dismissed. If, contrary to that conclusion, leave were to be granted, for the same reasons, I consider that the appeal, pursuant to such leave, should be dismissed.
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