Skipper v Boertien

[1999] NSWCA 220

CITATION:	SKIPPER v. BOERTIEN [1999] NSWCA 220
FILE NUMBER(S):	CA 40563/97
HEARING DATE(S):	6 November 1998
JUDGMENT DATE:	30 August 1999
PARTIES :	GREGORY STEPHEN SKIPPER (Appellant) FREDERICK BOERTIEN (Respondent)
JUDGMENT OF:	Handley JA at 1; Powell JA at 2; Beazley JA at 45

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CLD 11971/93
LOWER COURT JUDICIAL OFFICER:	Newman J

COUNSEL:	B. J. Gross QC and L.T. Grey (Appellant) D.F. Rofe QC and M.B. Williams (Respondent)
SOLICITORS:	Carroll & O'Dea (Appellant) Malcolm Johns & Company (Respondent)
CATCHWORDS:	NEGLIGENCE - Motor vehicle accident - Collision with cyclist - Whether cyclist on wrong side of carriageway or riding from footpath into path of oncoming car - Whether driver of car keeping proper look-out - No question of principle involved
DECISION:	Appeal dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL


CA 40563/97
CLD 11971/93

HANDLEY JA
POWELL JA
BEAZLEY JA

30 August 1999

SKIPPER v. BOERTIEN
JUDGMENT

1    HANDLEY JA: I agree with Powell JA.

2    POWELL JA: This is an appeal from a Judgment delivered, and orders made, by Newman J on 7 August 1997 when he dismissed with costs the proceedings which had been brought by the Appellant seeking to recover damages for personal injuries suffered by him when the bicycle which he was riding came into collision with a motor vehicle then being driven by the Respondent on 5 August 1992.

3    As will appear from what follows in the course of this Judgment, the principal question for determination on the appeal is whether this is one of those rare cases in which, although it is clear that the conclusion to which Newman J came upon the question of liability depended in no small measure upon the view which he took as to the credibility, on the one hand, of the principal witness called on behalf of the Appellant, and, on the other, the view which he took as to the credibility of the Respondent as a witness, this Court should, in the circumstances and, after considering the probabilities as to such facts as may be in issue, differ from the conclusion reached by Newman J.

4    As the authorities - most recently Abalos v. Australian Postal Commission (1990) 171 CLR 167 and Devries v. Australian National Railways Commission (1992-1993) 177 CLR 472 - make clear, while - the appeal to this Court being by way of re-hearing - it is the duty of this Court to set aside a challenged finding of fact which is shown to be wrong - to determine which this Court must weigh conflicting evidence and draw its own inferences and conclusions - as a general rule, findings of fact by a trial judge, based upon the credibility of witnesses, must stand unless it can be shown that the trial judge has failed to use, or has palpably misused, his advantage, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable. This is particularly so in a case in which either story told in the witness box might be true, in which the probabilities and possibilities are fairly evenly balanced and in which the personal motives of the parties and their witnesses might well affect their testimony.

5    At the time of the accident in August 1992, the Appellant was some two months short of his sixteenth birthday. At the time he was living with his sister and brother-in-law at their home in South Windsor, his parents being then separated and, perhaps, divorced. The Appellant had left school in May 1992 - seemingly because he was a poor student and had learning difficulties - and, one assumes, without having obtained the School Certificate. When he left school, the Appellant worked for a time for his brother-in-law, who then had a pizza parlour, known as “Ronnies Pizza House” which was situated in George Street, South Windsor. It would, however, seem that, at some time prior to the beginning of August 1992, the Appellant and his brother-in-law had a disagreement and the Appellant ceased to work at the pizza parlour. Thereafter, so it seems, the Appellant worked for a short time in a furniture factory in South Windsor but, as it seems, at the time of the accident he was unemployed.

6    The accident from which the Appellant sustained his injuries occurred in George Street, Windsor. George Street, which is the main commercial street in Windsor, runs from North-East to South-West to South Windsor. George Street is 20.32 metres (66 feet) wide, the carriageway being 12.8 metres (42 feet) in width and the footpath area on each side 3.66 metres (12 feet) in width. At the South-Western end of the main shopping centre George Street is crossed by Richmond Road which runs from Macquarie Street - which is to the East of George Street and parallel with George Street, Richmond Road proceeding in a West-North-Westerly direction past the Hawkesbury Showground and Race Course, which is to the South, and the Richmond RAAF Base, which is to the North, to the town of Richmond. At the intersection of Richmond Road and George Street traffic lights had been installed to control traffic.

7    To the South-West of the intersection of George Street and Richmond Road the development is mixed, there being both commercial and residential properties.

8    Commencing at the South-Western corner of the intersection with Richmond Road, the Western side of George Street for a distance of approximately 120 metres (396 feet) is occupied, first, by a motor repair workshop and car sales yard known as “Kev John Motors”, which appears to have a frontage to George Street of approximately 80 metres (264 feet), then by a brick cottage, No. 397 and two weatherboard cottages Nos. 399 and 401, each of which appears to have a frontage of about 13.4 metres (44 feet) to George Street, the three cottages thus having a total frontage to George Street of approximately 40 metres (132 feet).

9    Along the Western kerb of George Street over the distance of 120 metres to which I have referred, there are a number of vehicle crossings of which, for present purposes, one needs to note only two. At the Northern boundary of No. 397 George Street there is a single crossing which appears to be about 3.5 metres (12 feet) in width at the kerb’s edge. At the common boundary between No. 399 and No. 401 George Street there is a double crossing which appears to be about 7 metres (24 feet) in width at the kerb edge.

10    Certain other features should also be noted. Immediately to the North of the Northern boundary of No. 397 George Street and on what might be called the footpath reserve outside the South-Western boundary of the car yard is what is has been described as an electricity box - possibly a “step down transformer”. Opposite that electricity box and adjacent to the kerb and the vehicle crossing outside No. 397 George Street is an electricity and light pole. Adjoining the kerb and at the Southern edge of the vehicle crossing outside Nos. 399 and 401 George Street is an electricity pole.

11    The development on the Eastern side of George Street to the South-West of the intersection with Richmond Road is similarly mixed. Running South-West from the South-Eastern corner of the intersection for a distance of what appears to be about 80 metres (approximately 260 feet) is what has been described as “a small cemetery”. Adjoining the South-Western boundary of the cemetery is a single storey brick building, which appears to have a frontage of about 9 metres (30 feet) to George Street which building houses, in the Northern part, a laundromat and, in the Southern part, a butchery - that building faces the Southern part of the car yard across the street. To the South-West of that building is a narrow passage which is joined on its South-Western side by a two storey building having a frontage of about 9 metres (30 feet) to George Street, which building houses, at the ground floor level, a general store and, on the upper level, a number of residential flats. That building faces the boundary between the car yard and No. 397 George Street across the street. To the South-West of that building is a somewhat wider passage to the South-West of which is a weatherboard cottage, “Dawnford”, No. 396 George Street which has a frontage of about 18 metres (approximately 60 feet) to George Street. That cottage faces the Southern half of No. 397, and the cottage known as No. 399, George Street across the street. Adjoining the passage on its South-Western boundary and at the street frontage of “Dawnford” is what appears to be a stone pillar about a metre high (see Exhibit G Blue AB 11; Exhibit 17 photograph D1 Blue AB 100).

12    On the Western side of George Street to the South-West of No. 401 appear to be a number of cottages and several two-storey commercial buildings (see Exhibit 17, photographs D9, D15 Blue AB 108, 114) while on the Eastern side of George Street to the South West of “Dawnford” development appears for the most part to be residential cottages.

13    Further to the South West again, George Street passes under a bridge carrying the railway line to Windsor Railway Station which is nearby. Beyond the railway line there would appear to be a group of shops at South Windsor. The Appellant’s sister’s home appears to have been beyond those shops.

14    On the morning of 5 August 1992, the Appellant left his sister’s home near the South Windsor shops to go to the Windsor office of the Department of Social Security (“the DSS”) which is in George Street to the North of the intersection of George Street and Richmond Road, apparently to make inquiries as to “the young homeless allowance” (Black AB 4). When he did so he rode a bicycle which he had apparently borrowed from an uncle a day or two earlier. Although when he went to the DSS office the Appellant - so he said - was unaccompanied, while he was waiting to be attended to, he was joined by his friend, Jason Wilson, who appears also to have ridden a bicycle to the office.

15    The Appellant and Jason Wilson appear to have left the DSS office at about 12.30 p.m. intending to go to the Appellant’s sister’s home. After they left the office of the Department of Social Security the Appellant and Jason Wilson cycled down George Street - in this area George Street slopes downhill to the South West - in the direction of South Windsor, the Appellant travelling on the Western footpath but Mr. Wilson travelling on the Eastern side of the carriageway.

16    Since the Appellant has virtually no recollection of what occurred between the time when he crossed Richmond Road until he recovered consciousness after the accident and while being taken by ambulance to the hospital, the primary case in negligence which the Appellant sought to advance at trial depended almost entirely upon the acceptability of the evidence given by Mr. Wilson as to what then occurred.

17    Although it is not entirely clear that this was so, the Appellant’s evidence (Black AB 5-6) would suggest that, when he reached the intersection of George Street and Richmond Road, he stopped his bicycle, dismounted and, after checking for traffic walked across the road pushing his bicycle, not mounting his bicycle until he reached the other side where he rode up onto the footpath on the Western side of George Street. The Appellant’s evidence would also suggest that, after he had crossed Richmond Road, Jason Wilson rode his bicycle up onto the footpath on the Eastern side of George Street and proceeded South along that footpath. The Appellant’s evidence also was that the last recollection he had was of Jason Wilson apparently seated on his bicycle leaning against the stone pillar at the boundary of the passage beyond the general store and “Dawnford”.

18    Jason Wilson’s evidence in chief (Black AB 43-48) was to the effect that he crossed Richmond Road ahead of the Appellant - and he did not see him cross-over - and having done so, cycled down the Eastern footpath of George Street - which at that point appears to have sloped slightly away to the South-West - until he reached the stone pillar on the boundary between the passage and “Dawnford” at which point he stopped his bicycle and, although remaining seated on it, lent against the pillar. When he did so, so Jason Wilson said, he looked over his shoulder to see where the Appellant was and saw the Appellant riding his bicycle from the footpath on a diagonal track across a driveway and onto the road. Shown a number of photographs which formed Exhibit B, Jason Wilson identified, by reference to Exhibit B2 (Blue AB 1), the driveway and vehicle crossing at the Northern boundary of No. 397 George Street.

19    Jason Wilson’s evidence in chief then continued (Black AB 45-46):

“Q. All right. Then, when Greg rode down onto the road, what did you see next? A. After he left the footpath he came diagonally to the road. At that point in time I seen him and out of the corner of my eye a red car, and Greg turning back off the road slightly swerving towards the road to avoid the red car and at that time I looked forward again.
Q. And then what did you do? A. I started to proceed along the fence, hauled myself up with one hand and just pushing along.
Q. What is the next thing that you heard or saw? A. At that point I heard an impact and I looked back, I rested against the fence again and looked back and saw Greg coming on the red car. He was there.
Q. Before you heard an impact, or what sounded like an impact, did you hear any other noise at all? A. There was a squealing of tyres.
Q. And when you looked across and saw Greg on the car, are you able to place where the car was? A. No, no.”
Then, having once more been shown Exhibit B, Jason Wilson, by reference to Exhibit B5 (Blue AB 3), identified the point at which he saw the Appellant “on the car” as being near the electricity pole to the South of the double vehicle crossing between Nos. 399 and 401 George Street and about half-way along the frontage of No. 401 to George Street and, by reference to the same photograph, identified the point at which the red car came to a halt as having been between the Southern and Northern boundaries of that vehicle crossing - a little later (Black AB 47) he said “ The front of the vehicle would be half-way across the driveway ”. When the accident happened, so Jason Wilson said (AB 48) he had reached a point “ about 12 foot, 13 foot ” along the fence of “Dawnford” and the accident site was “ towards the front right of me ”, which would accord with his earlier description of the point at which the red car had come to a halt.

20    Some, at least, of the detail given by Jason Wilson in his evidence in chief is missing from the statement taken from him shortly after the accident by Sergeant Holloman. That statement (Exhibit 14, Blue AB 47-48) was as follows:

“I was with Greg at the Social Security, Windsor. We left and rode our bikes down George Street toward South Windsor, we crossed over the lights and I was riding on the footpath on eastern side and Greg was on the footpath on the western side. I looked over and saw he was trying to cross onto my side. I looked forward and then heard a bang, I looked over and saw Greg on the bonnet of a red car.”

21    Some of the detail given by Jason Wilson in chief was also missing from, or differed from, the detail contained in a further statement (Exhibit 6) which he made - and which was witnessed by his mother (Black AB 59) on 12 December 1992. That statement (so far as is relevant) was as follows (Blue AB 58-60):

“
………
3. At about 12.30 p.m. on Wednesday 5 August 1992 I had been riding with Gregory and we attended the CES looking for work. We rode along George Street, Windsor toward the railway station. We came to the intersection of Richmond Road which is controlled by traffic lights. I wasould riding along the left hand side footpath and Gregory was riding down the footpath on the other side of the road.
4. When the lights turned green in our favour, I rode across Windsor Road on the left hand side of the roadway and then I moved onto the footpath on my left. Gregory had alighted from his bicycle at the lights and waited to walk his bike across the foot crossing and he was some distance behind me. He walked his bike across Richmond Road then started to ride down the footpath on the opposite side to me. About a house width past the car yard on the corner, he rode across the gutter onto the road. I saw a car coming up in the opposite direction to me on that side of the road. I saw Gregory try to veer back towards the gutter and then I heard an impact. I also heard the car tyres squeal. I am not sure if the tyres squealed before, during or after the impact.
5. I saw Gregory in the air, still hanging onto the handlebars of his bike. Gregory hit the front left hand headlight area of the car, then smashed the windscreen of the car and dented the roof of the car. Gregory was lying on his stomach and unconscious for about 20 seconds. He tried to get up but there was a first aid man there and made him stay still. I did not have any conversation with the car driver.
6. The police arrived and then the ambulance arrived. The ambulance conveyed Gregory to hospital and I told the police what had happened.
7. At the time of the accident it was a fine sunny day. Traffic at the time was light. At the time Gregory was travelling at about jogging speed.
………”

This statement invites the following comments: first, that, in his evidence in chief (Black AB 44) Jason Wilson had estimated “ jogging speed ” as being “ about three times average walking speed ”; second, that the phrase “ about a house width past the car yard on the corner ” would suggest - although, in the course of his cross-examination (Black AB 56) Jason Wilson denied - that the point at which the Appellant rode onto the carriageway was to the South of No. 397 George Street; third, that implicit in it was the suggestion that - contrary to the case which the Appellant sought to make at trial - the Appellant was - as Jason Wilson had apparently told Sergeant Holloman - attempting to cross over George Street, rather than riding down the Western side of the carriageway; and finally, that, in any event, the evidence which Jason Wilson gave at trial was, as he appeared (Black AB 56) to concede the product of later reconstruction.

22    The Appellant’s father, who appears to have reached the accident scene shortly after the accident, in his evidence in chief (Black AB 63) indicated that there were cars parked along the Western kerb of George Street up to the double vehicle crossing adjacent to Nos. 399 and 401 George Street and that the red Commodore - which was the car which had been driven by the Respondent - had come to rest with its front bumper about a metre and a half (approximately 5 feet) North of the electricity pole in the kerb opposite No. 401 George Street. Sergeant Holloman, who appears to have arrived at about the same time, confirmed the Appellant’s father’s observations. Sergeant Holloman also noted, first, that parked on the Western kerb of George Street near the electricity pole outside No. 401 George Street was a motor vehicle which apparently was registered No. ROE 684 (Black AB 184) and, second, that there was a black tyre mark on the roadway which stopped under the off-side front wheel of the defendant’s car which tyre mark he paced out at 9 paces (Black AB 190) - Sergeant Holloman’s (measurement) might be compared with the estimate given by the Respondent in a statement (Exhibit K, Blue AB 17) apparently made by him on 4 November 1992 which was “I braked my tyres did leave skid marks, from memory I think that they were about 2 car lengths long” - it was suggested (Black AB 190) that two cars lengths was of the order of 11 metres.

23    At the time of the accident the Respondent was the area sales manager for a company known as “Traders Auto Spares”. In his evidence in chief (AB 167-168) the Respondent said that, prior to the accident, he had visited a shop called “Windsor Auto Parts” which was located in George Street, South Windsor and to the South of the railway line. Having completed his business at “Windsor Auto Parts” the Respondent then left to call on another shop “Hawkesbury Valley Auto Spares” which appears to have been half a kilometre to the North of the accident site. His evidence in chief continued (Black AB 168-169):

“Q. Can you just describe the course you took leading up to the unfortunate accident. You had to go from South Windsor, what route did you follows? A. I followed George Street, came from underneath the railway bridge, had to make a 90 degree turn.
Q. That is in George Street? A. That is in George Street but it is a ninety degree turn and moved towards North Windsor.
………
Q. As you were coming along after making that turn about what speed were you doing? A. Out of that turn I would have been doing about 20 at the 90 degrees and then I accelerated to move towards George Street North.
Q. As you came around that turn and accelerated did you notice anything about parked cars on your left in George Street? A. Yes.
Q. What do you say about that? A. George Street was full of parked cars.
Q. Can you just give us as best you can your account of what happened. About what speed had you reached approximately before anything happened? A. Approximately 45 to 50 kilometres per hour.
Q. You tell his Honour what happened as you saw it? A. Well I was travelling along all of a sudden a flash appeared to me from the left hand side. I felt a thud on the left front of the car and an impact on the windscreen and after I stopped I saw a boy lying on the road.
Q. When you saw this flash on your left, at that moment could you see anything else through the flash, could you see what it was at that moment? A. No.
Q. You say you felt the thud? A. Yes.
Q. Then the windscreen smashed? A. And then the impact and the windscreen smashed.
Q. And it was a flash, a thud on the front of the car, in that sequence? A. The impact off the windscreen.
Q. Yes. A. And after I stopped the vehicle, after I braked I saw the boy lying on the road.
Q. I will come to that in a moment. When you say you braked, how did you brake? A. As hard as I could.
Q. Your car came to a halt? A. Yes.
Q. You saw a boy on the road. Where was he in relation to your car? A. He was slightly in front of the vehicle but just about on the other side of the road.”

and a little later (Black AB 171):

“Q. In relation to this flash, can you tell us where it came from when you saw it? A. It came from the left.
Q. In relation to parked cars, where did it appear to come from? A. It came from behind a parked car.
Q. When you say it came from the left, did it come directly out, or at angle or what? A. At an angle.
Q. Are you able to assume (sic) how far it was when you first saw it? A. A few feet.
Q. I think you said it came from the left? A. Yes.
Q. Are you able to say, time wise, what the time distance was between the flash, the thud, the smashing of the windscreen? A. A fraction of a second.”

and later again (Black AB 173-174):

“Q. Before this unfortunate accident where was your car in relation the parked cars as you were driving along? A. In what respect?
Q. There were parked cars, what position did your car occupy on the roadway? A. I was a few feet from the vehicles on the left.
Q. Was your car wholly on its correct side of the roadway? A. Yes.
Q. Do you recall any particular parked car after the accident, or not? A. Just that there was something red, a red vehicle.
Q. You recall seeing a red vehicle? A. Yes.
Q. Parked? A. Yes.
Q. Do you remember anything else about it? A. No.
Q. Do you remember where it was parked? A. It was parked at the beginning of a drive.
Q. The beginning of a drive? A. Yes, or from my angle from the direction I came.”


and later still, having been shown a photograph (Exhibits 13, 13A Blue AB 119,120) - (see also Exhibits 15, 15A and 15B Blue AB 96, 97, 98 taken by Detective Senior Constable Smith on the day of the accident) - he identified the red car to which he had referred, which red car was that which had registration No. ROE 684 and which was parked adjacent to the electricity pole to the South of the double vehicle crossing outside Nos. 399 and 401 George Street.

24    Since the Appellant has sought to make much of what was said to be the inconsistencies between the Respondent’s oral evidence and earlier statements made by him it should be recorded, first, that in his police notebook (Annexure L Blue AB 15-16) Sergeant Holloman noted, and had the Respondent sign, the following:

“I was driving north in George Street about 45 kph I saw a boy on a push bike riding coming toward me, he was just a flash, he came out from behind a parked car (ROE 684) I was only feet away from him and had no chance of stopping, he hit the front of the car, I braked and stopped and the boy fell onto the road.”

Underneath that statement Sergeant Holloman also noted, but did not have the Respondent sign:

“9 metres of single skid
Q. Do you agree that skid mark was made by our vehicle.
A. Commonsense tells me its mine.”
The statement made by the Respondent on 4 November 1992 (Exhibit K, Blue AB 17), to which I have earlier referred, was as follows:

“I am a married man residing with my wife and family at 6 Brenda St, Ingleburn. I was born on 4.9.47 and I have been a licensed driver for 22 years. I am an area manager in sales for Traders Auto Spares Pty. Ltd. of Auburn.
On Wednesday the 5th August 1992 I was driving a company vehicle Registered No. OTY 745 in a northerly direction along George St, Windsor towards the shopping centre.
I was travelling along at about 45 to 50 km per hour when suddenly I saw a flash on my left just in front of my car as a boy on a push bike rode the bike out from the left hand side and in front of a parked car. The boy on the bike collided with the near side front of my vehicle. I remember that the passenger’s headlight was broken in the accident. The boy came up onto the bonnet of my car and then he hit and broke the windscreen. I did not have any chance to brake before the accident but I certainly braked as quick and as hard as I could. To me the boy seemed to go forward and he landed on the road in front of and to the right of my car.
There were no cars in front of me as I drove along George Street. I am sure that if he had been riding on the footpath I would have seen him.
It was about 12.30 p.m. and the weather was fine.
When I braked my tyres did leave skid marks, from memory I think that they were about two car lengths long. I think that the Police may have measured them.
I never drink intoxicating liquor whilst at work and I was at work when the accident happened. I did everything that I could and I did not have any time to veer to my right to avoid the cyclist before the accident.
I would have been about 1½ metres from the side of the vehicles parked at the kerb on my left as I drove past them.
I am quite sure that I was watching directly ahead of me prior to the collision.
My vehicle had been fulloy (sic) serviced about one week before the accident and it was in very good roadworthy condition.
I understand that there was a witness who saw the accident and he made a signed statement to the Police.”

25    In addition to the Appellant, Jason Wilson and the Respondent there were at or near to the site of the accident at the time of the accident a Mrs. Parsons, a Mrs. Leijen and her mother Mrs. Brooker.

26    Mrs. Parsons lived in No. 401 George Street. At the time when the accident occurred Mrs. Parsons was in the hallway of her home near the front door, the hallway and the front door being located a short distance to the South of the electricity pole which is to the South of the double vehicle crossing between Nos. 397 and 401 George Street. At the time the front door was open, although a wire screen door, through which one could see, was locked. As she came into the hall, Mrs. Parsons heard a bang, at which she glanced to the right and, saw a red car with a body on the windscreen travelling up George Street in a Northerly direction (Black AB 195). At the time, Mrs. Parsons also noticed that there was a car parked outside her home, the front mudguard of that car being about in line with the electricity pole in the kerb and about one foot to the South of the Southern edge of the double vehicle crossing between Nos. 399 and 401 George Street.

27    Mrs. Leijen, who was accompanied by her mother, was seated in her car, which she had parked on the Eastern side of George Street, facing South, adjacent to the laundromat, while she had been to the general store to buy a paper. In her evidence in chief (AB 204-206) Mrs. Leijen said (inter alia):

“Q. Take it slowly? A. I just came back from the shop and I hopped into my car and I heard voices yelling and talking and I had seen …
Q. You heard voices yelling? A. I heard voices yelling and I seen Greg on one side of the street, on my right hand side, and I seen a boy on my left hand and they were yelling out to each other across the street.
Q. And did you know the other boy on the bicycle, or not? A. I don’t remember.
Q. All right. Well, now, you sat, you continued to sit in your driver’s seat there? A. Yes.
Q. And then what, if anything, did you see happen? A. I heard a brake and then ‘bang’. Greg was hit on a car.
Q. Before you heard that, did you see anything? A. Just the boys yelling out at each other.
Q. But that is hearing. What led up to the noise you heard? A. Sorry?
Q. You heard the boys yelling, right? A. Yes.
Q. And you described what you saw, the movement that Greg was on the other side of the road. Did you see any movement thereafter before the noise? A. I just seen him riding up the road and then they came …
Q. Up the road, or the footpath, or what?
OBJECTION
A. They were riding on the footpath. I saw Greg riding up the footpath and then he came onto the road.
Q. You saw that? A. Yes.
Q. And he came onto the road, yes, and what? A. And then he was hit by the car.
Q. Did you see that? A. Yes.
Q. And did your hear something? A. I heard brakes, but it was just real quick (indicated).
Q. Yes, I realise that you heard brakes. You heard the sound of him being hit? A. I just heard the noise of the collision. I just hear (sic) that.
Q. What did you see then? A. I seen Greg up into the air and he hit the top of the car and the car’s windscreen and he rolled down onto the bonnet.
Q. And after that what did you see happen to him when he rolled onto the bonnet? A. He was laying face down on the road.
………
HIS HONOUR: Q. Where did you see Greg leave the footpath to go onto the roadway? A. Well, where I was parked I could see him come between two cars, down and drop down onto the road.
ROFE: Q. From the time you saw him do that to the time he hit the car, how much time passed? A. That is like (indicated) that is real quick
Q. You flicked your finger, real quick? A. That just happened so quickly, yes.
Q. How (sic) at any stage did you see Greg move onto the roadway from the footpath, turn his bike to the right so that he was driving along the roadway coming up to this on-coming car, did you see anything like that? A. No, I didn’t.
………
Q. … Now I want to ask you this, you see the driveway out of 397? A. Yes.
Q. And the driveway that seems to come out of the Kev John Motors which is the one just north, the driveway out of 397, do you see those two? A. Yes.
Q. When Greg left the footpath and got onto the road, did he use either of those two driveways? A. No, he didn’t.
………
Q. Now this calling out from one to the other that you heard attracted your attention? A. That’s correct.
Q. It was still going on when you saw Greg leave the footpath onto the road? A. Yes it was. I can still hear them yelling at each other across the road.
Q. Could you pick up what they were saying? A. No, I couldn’t.”

28    Since the Appellant seeks to place stress on what are said to be the inconsistencies in Mrs. Leijen’s evidence, I record that, during the course of her cross-examination, Mrs. Leijen gave the following evidence (Black AB 208-212):

“Q. And when they went past you, what did you do, what were you doing at that moment? A. I don’t remember.
Q. Can I suggest to you that from the moment that Greg and the other boy passed you what you were doing was putting the ignition key back into the ignition with a view to starting your car and drive away, do you agree with that? A. Yes, I was probably doing that.
………
Q. Well, I am suggesting that you have told others that from the time when Greg passed you, you were then intent in putting your key into the ignition? A. Yes, I don’t remember.
………
Q. See you don’t have a good memory at all about what happened on this day at all? A. It is just such a long time ago.
Q. It is very understandable you wouldn’t remember it very well? A. I just remember seeing it happen.
Q. See, you didn’t see the impact itself, did you or didn’t you? A. I seen Greg get hit by a car.
Q. What I am putting to you is, it was the brakes that drew your attention, that is when you saw Greg up on the car, that is what happened? A. I heard braking and then I seen Greg on top of the car yes.
HIS HONOUR: I don’t think she is agreeing with your question.
GREY: Q. What I am suggesting to you is that in the period of time before the actual sound of the brakes you were intent on putting your keys in the ignition and not upon looking where Greg was going? A. I can’t even remember putting my keys in the ignition of the car.
Q. But you say it is not the case that you were putting your key in the ignition? A. I can’t remember doing it.”

29    Although able to corroborate Mrs. Leijen’s evidence as to the Appellant and Jason Wilson riding their bicycles on the footpath on opposite sides of George Street and as to hearing a noise and seeing the Appellant thrown into the air, Mrs. Brooker was not able - perhaps because she had recently been ill (Black AB 216) - otherwise to corroborate Mrs. Leijen’s evidence. In regard to the events immediately preceding the accident Mrs. Brooker gave the following evidence (Black AB 214):

“Q. Did you yourself see Greg leave the footpath to go onto the road? A. I don’t remember that part, no.
………
Q. At any stage did you see Greg leave the footpath and turn right onto the road and proceed in the path of this on-coming vehicle? A. I don’t remember.
HIS HONOUR: Q. When was it you last saw Greg riding the bicycle? By that I mean, where was he when you last remember seeing him riding the bicycle? A. I last remember seeing him ride his bike along the footpath.”

30    As the result of the collision, the Appellant suffered a fracture and dislocation at the T6/T7 spinal level with consequent paraplegia, as well as other injuries, which, in the circumstances, it is not necessary to detail.

31    The proceedings were commenced on 31 May 1993.

32    Although, at times, I had the impression that both the written submissions which had been filed, and the oral submissions which were advanced on behalf of the Appellant on the hearing of the appeal, were directed toward arguing that even if, contrary to the evidence given by Jason Wilson, the Appellant had, as the Respondent said, came onto the road from the double vehicle crossing outside Nos. 399 and 401 George Street, the Respondent had been negligent, it seems clear enough that, at trial, the case which was advanced on behalf of the Appellant was, that the Appellant had moved onto the roadway from the driveway outside No. 397 George Street and then proceeded South in George Street on the Western side of the carriageway for a distance of some 30 metres or more during which time he would have been in the line of sight of the Respondent who ought to have seen him and who ought therefore to have taken steps to avoid the collision. That this was so is made clear by the following passage in Newman J’s Judgment (RAB 20-21):

“There was no issue at the trial that the collision happened on the western half of George Street. Equally, there was no issue that Frederick Boertien was driving his vehicle within the speed limit and on the correct side of the road. The issue of importance was which vehicle entrance was used by the plaintiff to enter the carriageway of George Street.
………
There was no issue as to where the impact occurred. It happened on the carriageway at a point to the east of the vehicle entrance situated on the northern extremity of the premises known as 401 George Street, Windsor. It was the plaintiff’s case that he had ridden his bike onto the carriageway from one of the vehicle entrances to the north of the entrance adjacent to which the impact happened.
It was the plaintiff’s case that once having entered the carriageway he had travelled in a southerly direction along George Street at a distance from the kerb which enabled him to ride in the gap which would exist between cars parked by the western kerb and cars travelling north in George Street. This being so the defendant, had he been keeping a proper look-out, would have been able to take evasive action either by braking or so steering his vehicle to avoid colliding with the plaintiff.
On the other hand it was the defendant’s contention that the plaintiff in fact used the vehicle entrance adjacent to 401 George Street to enter the carriageway and came out behind the car parked immediately to the south of that entrance straight into the path of the defendant’s car. In short that the plaintiff’s mode of entrance to the carriageway was such that the defendant had no chance of avoiding the accident.”

33    That this was the Appellant’s case at trial is ultimately confirmed by the following passage in the Transcript on the hearing of the appeal (T. 3):

“GROSS: If the Court would go to the red book at p.20 V to W the Court will see that his Honour stated the issue of importance was which vehicle entrance was used by the plaintiff to enter the carriageway of George Street.
It was the plaintiff’s case based on the evidence predominantly of Mr. Wilson, the witness, that he had come from the driveway of 397 and it was the defendant’s position he had come from the double driveway 401-399.
HANDLEY JA: We understand that.
GROSS: But it is called the issue of importance because it was common ground in the case that if the plaintiff had come from 397 that is some 30 metres or so further to the north …
HANDLEY JA: He must have been travelling in the line of sight of the driver for some 30 metres.
GROSS: Yes, and he should have been seen.
HANDLEY JA: Yes we understand that.
GROSS: And avoided by the defendant. So that on this critical issue the plaintiff lost and it’s a combination of two things, one, the rejection of the witness, Jason Wilson and two, what his Honour found to be corroboration to the hilt by the evidence of Mrs. Layergins (sic).”

34    The evidence which was given at trial directed to the issue of liability included, in addition to that of the various persons to whom I have referred above, that of three engineers, Messrs. Simpson and Johnston called on behalf of the Appellant and Mr. Bailey called on behalf of the Respondent. The nature of the evidence given by these three witnesses is sufficiently indicated by the following passage in Newman J’s Judgment (RAB 27-28):

“Mr. Colin Simpson, an engineer with appropriate qualifications, gave opinion evidence as to the dynamics of the accident. In essence his evidence supported the case brought by the plaintiff ascribing the fact that the defendant did not see the plaintiff in time to inattention brought about by such as looking for a house or adjusting the car radio.
Mr. Simpson had been provided with the photographs taken by the plaintiff’s father of skid marks, viewed photographs of the damage to the defendant’s vehicle and had viewed the scene of the accident.
Much of the challenge to his evidence in cross-examination was based on the way in which the human body would move in an accident having regard to angles at which that body presented at the time of impact. While he at no time resiled from his opinion that the plaintiff was travelling in a straight line at the time of impact he conceded that the damage marks were consistent with the plaintiff having come in at an angle from the defendant driver’s left hand side. However, his preferred view was that the plaintiff had been travelling in a straight line at the time of impact.
Mr. Grant Johnston another engineer with appropriate qualifications, gave similar opinion evidence to Mr. Simpson. Again, his preferred view was that the plaintiff was travelling in a straight line at the time of impact. Like Mr. Simpson he conceded that the impact could have occurred by the plaintiff’s cycle coming in at a 45 degree angle on the defendant driver’s left hand side. He was prepared to quantify the possibilities as being seventy-five percent in favour of the plaintiff travelling in a straight line at the time of impact and twenty-five per cent in favour of an angular approach of the type to which I have just referred.
Much of the challenge made to his evidence was based on the evidence given by another engineer, Mr. Bailey, on behalf of the defendant later in the proceedings. Mr. Bailey, as indeed he later deposed, was of the view that the physical evidence supported only one scenario, namely that the impact happened when the plaintiff entered the roadway at an angle of about 45 degrees impacting immediately after entering with the left front of the defendant’s car. Mr. Bailey’s evidence is based on, inter alia, vector analysis and studies performed with dummies in simulated accidents. Mr. Johnston emphatically disagreed with Mr. Bailey’s vector analysis and, indeed, with computerised graphic representation prepared by Mr. Bailey. Suffice it for me to say that Mr. Johnston did not resile from his evidence in chief.”

35    The approach which Newman J adopted to the expert evidence which had been given before him is sufficiently revealed by the following passage in his Judgment (RAB 34) which followed immediately upon the more detailed description of the evidence given by Mr. Bailey; which his Honour then gave:

“For myself, I have little confidence in reconstructions of the type produced by Mr. Bailey. In so saying I am not intending to belittle Mr. Bailey’s skills. I prefer to decide factual matters on the evidence of eye witnesses, albeit expert evidence of this type may have forensic uses. In determining this matter I have disregarded the computerised graphic tendered in evidence.
The importance of the expert evidence given on behalf of both parties is that it is supportive of the contentions of both plaintiff and defendant. In other words, there is expert evidence which supports the plaintiff’s contention that he was travelling in a straight line on impact and also (from all the experts) evidence which supports the contention of the defendant that the plaintiff impacted with the defendant’s vehicle at an angle.”
(The “computerised graphic” to which Newman J referred had been produced by Mr. Bailey to illustrate the point which, in his evidence, he wished to make.)

36    Newman J expressed his conclusions in the following way (RAB 35-38):

“On reviewing the whole of the evidence I have concluded that I completely accept the version of events given by the defendant. He is corroborated to the hilt by Mrs. Leijen. Mrs. Parsons and the police evidence confirmed the presence of a parked car to the immediate south of the driveway to her house. Furthermore, I found him to be a straight forward and honest witness which (sic) I not only accept as truthful but also as one with an excellent recollection of events.
Mr. Wilson’s evidence which was critical to the plaintiff’s case suffers from the difficulty that he made no mention of the driveway from which the plaintiff made his entrance to the carriageway either when interviewed by police immediately after the accident or his signed statement.
In short I prefer Mr. Boertien’s evidence to that of Mr. Wilson. There was no suggestion made in the plaintiff’s case that the defendant was driving at an unsafe speed. I find he was driving within the speed limit at an appropriate rate and was looking where he should have been - straight ahead. I find the plaintiff entered the carriageway from the driveway of 401 George Street from behind the parked car impacting at an angle with the defendant shortly after he so emerged.
I find that the defendant only became aware of the presence of the plaintiff when he observed the ‘flash’ appearing on the left-hand side of his motor vehicle a split second before the impact. At the time of making that observation he had no chance whatsoever of taking any evasive action.
It was submitted on the plaintiff’s behalf that should I so find, contrary of course to the manner in which the plaintiff’s case had been framed, that the defendant ought to have seen the plaintiff earlier while the plaintiff was riding on the footpath. Reliance for this factual allegation was placed upon a statement taken from the defendant in which he had said ‘I’m sure that if he had been riding on the footpath I would have seen him’. This gave rise to the following question and answer:
‘Q. You have told us there were cars parked along the western side of George Street. What I am putting to you is that, notwithstanding those cars being there, if you had directed your attention to the footpath on the western side of George Street you would have seen a cyclist approaching you if one had been there? A. I am just trying to picture the scene, sorry. Probably, yes.’
The defendant had, in fact, given evidence of cars being parked on the western side of the road to the north of the driveway adjacent to 401 George Street.
Not only had the defendant given that evidence but also had the plaintiff’s father when explaining the scene at the time of his arrival, Mr. Wilson and Mrs. Brooker. There was an electric light pole immediately to the left hand side of the vehicle ROE 684.
On this evidence any view the defendant would have had, as he progressed north along George Street, of the footpath on the western side of the road, would have been obscured by both parked cars and by the electric light pole.
………
It follows that I am of the view that the defendant, in making the observation (sic) he did in this case, was not in breach of his duty of care to the plaintiff to keep a proper look out. I find that he had no chance whatsoever of avoiding the accident as a consequence of the mode of entry which I find the plaintiff used to enter George Street.”

37    A number of grounds of appeal were taken in the Notice of Appeal filed on behalf of the Appellant and, as well, further grounds of appeal - not taken in the Notice of Appeal - were taken in the Written Submissions which were filed on behalf of the Appellant. In the end, however, virtually the whole of the oral submissions advanced on the hearing of the appeal on behalf of the Appellant came down to one, namely, that Newman J erred in accepting the evidence of the Respondent, particularly so as he described that evidence as having been corroborated up to the hilt by the evidence of Mrs. Leijen and his Honour erred in rejecting the evidence of Jason Wilson, his Honour’s reasons for rejecting that evidence being said to be insupportable.

38    As will have been made clear by the passages from Newman J’s Judgment which I have set out above, his Honour’s acceptance of the evidence given by the Respondent was in no small measure dependent upon the view which his Honour formed as to the credibility of the respondent as a witness. That being so, the present case falls clearly within the principles to which I have referred at the commencement of this Judgment referred to in such cases as Abalos v. Australia Postal Commission supra and Devries v. Australian National Railways Commission supra.

39    In the present case, in which the Appellant appeared to concede (T. 29) that the Respondent’s evidence which was accepted by Newman J was not inconsistent with facts incontrovertibly established, the Appellant was thus driven to submit that Newman J had failed to use, or had palpably misused, his advantage. In my view, the Appellant has failed to make that submission good.

40    The principal bases upon which, as it seemed to me, the Appellant sought to support this submission were, first, that Newman J misapprehended the effect of the statement which Jason Wilson had made to Sergeant Holloman and, also, the effect of the statement which Jason Wilson had made in December 1992; and, second, that Newman J was in error in saying that Mrs. Leijen’s evidence supported the Respondent’s evidence up to the hilt.

41    So far as the first of these matters is concerned it does not seem to me that Newman J erred in the respects asserted. It is quite clear that, in his written statement in the Police notebook, Jason Wilson made no reference to the point at which the Appellant left the footpath and rode onto the carriageway, while it was for his Honour to determine what was meant by the phrase “about a house width past the car yard on the corner” in the statement which Jason Wilson made in December 1992. Despite the efforts of the Appellant’s counsel on the hearing of the appeal to persuade the Court to the view that that phrase referred to an old cottage which was within the car yard, the Southern wall of which cottage appears to be about 13 or 14 metres to the North of the Southern boundary of the car yard - in which event, if the Appellant had ridden across a vehicle crossing - none being mentioned - onto the carriageway of George Street, that crossing would have been, not the crossing outside No. 397 George Street which Jason Wilson had identified in the course of his evidence in chief at the trial, but a crossing a little to the South of the Southern wall of the cottage in the car yard - I do not think Newman J erred in saying what he did.

42    So far as the second matter is concerned, it is, in my view, enough to say that, even if there were an element of overstatement in Newman J’s statement that the Respondent was “corroborated to the hilt by Mrs. Leijen”, the fact of the matter is that the substance of Mrs. Leijen’s evidence did corroborate the evidence of the Respondent. Thus, in the passages from her evidence which I have set out above, Mrs. Leijen said that the point at which the Appellant crossed to the carriageway was not the vehicle crossing outside the car yard or outside No. 397, it following that the point of crossing to the carriageway was the next vehicle crossing to the South - that is, the crossing between Nos. 399 and 401 George Street - second, that, as he crossed onto the carriageway the Appellant passed between two cars; and, finally, that the impact was virtually instantaneous.

43    Quite apart from these matters, the evidence of other witnesses to which I have earlier referred, in my view provided further support for the version of events which was given by the Respondent at the trial.

44    For these reasons I have concluded that the Appellant has failed to demonstrate that Newman J has been guilty of appealable error and I would therefore propose the appeal be dismissed with costs.

45    BEAZLEY JA: I agree with Powell JA.

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