Smith v Wilczinski

[1990] TASSC 95

Serial No B18/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Smith v Wilczinski [1990] TASSC 95; B18/1990

PARTIES:  SMITH
  v
  WILCZINSKI

FILE NO/S:  LCA 7/1898
DELIVERED ON:  14 May 1990
JUDGMENT OF:  Crawford J

Judgment Number:  B18/1990
Number of paragraphs:  16

Serial No B18/1990
List "B"
File No LCA 7/1898

SMITH v WILCZINSKI

REASONS FOR JUDGMENT  CRAWFORD J

14 May 1990

1. In the Court of Requests a Commissioner found that an accident between two motor vehicles was caused by the negligent driving of the appellant and judgment was entered in favour of the respondent for damages to be assessed. No contributory negligence was found against the driver of the respondent's vehicle, Mr Kelly. The grounds of appeal are that the learned Commissioner's judgment was against the weight of the evidence and that his Honour placed undue weight upon two passages of evidence.

1. Although the respondent sued in the name of Wilczinski she gave evidence in the name of Kelly and said that her husband was driving her Toyota Land Cruiser.

1. At about 5.15pm on 6 January 1986, Mr Kelly was driving the Toyota up a hill on Coopers Road which led from Chudleigh to his farm. The collision occurred on what was for him a right–hand bend, with a Holden driven in the opposite direction by the appellant. Mrs Kelly was in the front passenger's seat of the Toyota and their two young children were in the rear seat. The appellant was travelling on his own.

1. I will summarise the evidence of Mr Kelly. He described the gradient as one in three. The width of the road (it was sealed with bitumen) was about 14 feet with verges of about 3 feet on each side. Unfortunately witnesses, including Mr Kelly, gave some evidence of relevant vehicle positions by drawing or marking a sketch which was not admitted into evidence. My task, on reading the transcript, is difficult as a result. For example, Mr Kelly was asked where on the roadway he was when he first saw the appellant's vehicle and he answered:– "About here". Another example is:–"I was coming up here and going round this bend here". Mr Kelly estimated that the appellant's vehicle was about 80 yards away when he first saw it. He was in second gear travelling at about 25 kilometres per hour. He formed an estimate of the appellant's speed at between 40 and 60 kilometres per hour. From the time he first saw it until the collision, he had an uninterrupted view of it. The appellant braked when 70 yards away. There was smoke coming from the front wheels of his vehicle. Mr Kelly pulled off to the extreme left of the left side verge, not quite into a ditch on the other side of which was a vertical bank. He could not go further to the left. He was then stationary. He flashed his lights and continuously sounded his horn. The Holden came straight at the Toyota and its right front collided with the Toyota's front driver's door. "It split it open like a tin opener". It bounced a little and came to rest at the rear door. Mr Kelly got out of the front passenger's door and spoke to the appellant. He said he swore and asked who was going to pay for the damage, to which the appellant replied that he need not worry, the appellant had certain horses and saddlery that could pay for it.

1. Mr Kelly said that within a day or two, he paced out the appellant's skid mark. He could not actually remember how long it was but he thought it was 70 yards.

1. The road was dry. This evidence of the length of the skid mark was uncorroborated and given with some uncertainty by Mr Kelly. But he was not cross–examined about it and no evidence was given contradicting him. In cross–examination he denied that the accident occurred on a sharp turn to the right. He described it as a gentle incline to the right. He denied driving in the centre of the road and said he was on the extreme left side as he approached the corner and moved off the road when he saw the other vehicle. His evidence was that he said to his wife "that he was about to hit us".

1. Mrs Kelly gave evidence. She said that the road was "reasonably steep but not overly steep". She estimated the Toyota's speed at 30 kilometres per hour as it drove up the road. She indicated on a sketch where each vehicle was when she first saw the Holden but, as I have said, the sketch was not admitted into evidence and was not available to me. After first seeing the Holden and noticing that it was travelling faster than she would travel, it went slightly out of her view and, as the Toyota drove round the corner and stopped on the side of the road, it came into view again. Her husband sounded the horn and kept one hand on it, and he also flashed the lights. He had pulled over as far as he possibly could on the left side of the road on the verge, on the edge of a small ditch at the bottom of a bank. The Holden came in a straight line, with "smoke under the front wheels", directly at the Toyota and hit it in the driver's door, bounced and hit the rear door, and came to rest. She "opened my doors (sic) as far as I could and got out and let my husband out the front door into the ditch on the side". She could not open the door all the way "because the edge of the bank was in the way". She was able to open it "about one foot" and "squeeze out into the ditch". Her evidence was that skid marks were on the road for a long time after, but she did not measure them.

1. Concerning conversations after the collision, Mrs Kelly's evidence was that the appellant said to her husband not to ring the police because he was on probation and was not supposed to be driving. Mr Kelly asked the appellant who would pay for the damage and the reply was:– "I've got my horses and saddlery, that should cover it". She said she was very clear about these things. In cross–examination she explained how she first saw the roof of the Holden across a slope on the inside of the corner.

1. The appellant gave evidence that he drove down the hill approaching the corner at about 40 kilometres per hour on the left–hand side and first saw the Toyota when it was three car lengths away "at the most". It was about three quarters of the way through the corner and towards the centre of the road. In cross–examination he said it was on the centre of the road, "slightly to the left.......left to the centre of the road". What he meant in this regard is not clear but he disagreed that it was as far to the left as it could get. He heard the Toyota's horn "a fraction before the impact", and his right front corner hit it behind the right front wheel. After the collision, glass was lying in the centre of the road and the Toyota was still on the roadway and not off it. He denied the respective versions of the conversation between him and Mr Kelly, as given in evidence by Mr and Mrs Kelly. He said it was common knowledge that he had horses and saddlery. He was asked what he claimed the conversation had been and he answered:– "Well, I claimed that I couldn't see him for the scrub and foliage on the bank on the road just before impact there and that I would fix my own motor vehicle to lessen the cost for him". He said Mr Kelly stated that he would see his insurance company (Mr Kelly agreed that he said this).

1. The appellant said that as he drove down the hill he was not able to see vehicles approaching the corner on its other side, because of a bank and vegetation. (Mr and Mrs Kelly maintained that there was visibility). He denied speeding and maintained that he was paying attention.

1. In cross–examination the appellant denied that the first collision was with the Toyota's front door and said it was just behind the front wheel, because as far as he could remember "there was a slight bit of damage done to the right front guard". He was not positive. He agreed that there was damage to the door and that he came to rest at the Toyota's back door. He agreed that Mr Kelly looked a bit angry and swore. Mr Kelly said:– "What are we going to do about this Shane?" and he responded by saying he would fix his own car and Mr Kelly could do what he liked. This passage of evidence tends to support an inference that he was accepting at least part of the blame. There was a further passage of evidence in his cross–examination which is against him. The respondent's solicitor was pressing him for his estimate of the speed of the Toyota. He said it happened too quickly. There then occurred the following:–

"QWell, you had a long enough view of him before the accident didn't you, if you'd been looking?

AWhat, three car lengths?

QYes.

ANo. I don't think so.

QNo.

ANot where I saw where he was sitting on the side of the road anyway".

On further cross–examination he returned to the version I have stated and said that the Toyota was not stationary. He said he was a licensed driver but gave no evidence about whether he was on probation.

1. The learned Commissioner said that in terms of credit only, he preferred the evidence of Mr and Mrs Kelly to that of the appellant. There was, he said, much in the respondent's case which he could only best describe as having the ring of truth about it. He later commented that he was not going to cover all the evidence, but he mentioned the following:–

1Mr Kelly's description of the result of the collision being that his driver's door was split open like a tin opener. In the course of his finding the learned Commissioner did not amplify this, but it seems to me that this evidence, which, as was conceded by the appellant's counsel, was not disputed, supported a finding that the collision was not a glancing blow of two cars coming towards each other, but of the Holden proceeding into the Toyota's driver's door at a substantial angle, consistent with the version of the movement and positions of the vehicles as stated by Mr and Mrs Kelly.

2Mrs Kelly's description of having to squeeze out the passenger's side door. This was consistent with the version of the accident as claimed by the respondent and her witness. The appellant's counsel agreed that this piece of evidence was not disputed.

3His Honour said that he could not comprehend Mrs Kelly having either the venom or a degree of dishonesty required to make up that the appellant requested them not to ring the police because he was on probation and was not supposed to be driving. His Honour rejected as false the appellant's evidence of the conversation including the denial of the offer to sell his horse and saddlery to cover the respondent's cost of repairs. The learned Commissioner had the benefit of hearing and observing the witnesses and was better able to assess their credit than a judge on appeal.

4The learned Commissioner noted that the appellant acknowledged finally in cross–examination that the respondent's vehicle was slightly to the left of the centre of the road.

5There was no cross–examination disputing Mr Kelly's evidence that there were skid marks for a distance of 70 yards and that they were attributable to the appellant's vehicle. The appellant did not dispute this in evidence either. The inference to be drawn from the skid marks was that the drivers had the other vehicle visible when they were at least 70 yards apart. The learned Commissioner said that, that being the case, the appellant should have been alerted to the presence of the Toyota and should have taken steps to ensure that he remained on the correct side of the road.

1. To the comments of the learned Commissioner I add the following. Although the appellant said that as he drove towards the corner he was on the left–hand side of the roadway, he gave no evidence whatever of his vehicle's position at impact, thereby not disputing that it was not as far to the left as it could reasonably be, nor did he give any evidence of evasive action taken by him, either in the form of braking or swerving. His evidence was totally silent as to what he did after first seeing the Toyota. On his own version, there was about 9½ feet of bitumen and verge on each half of the road but he did not in his evidence satisfactorily explain how the vehicles happened to collide. His admission that he said to Mr Kelly that he would fix his own vehicle was consistent with an admission of part of the blame for the collision. The undisputed evidence that Mr Kelly was angry following the accident, supports the respondent's case. The undisputed fact that Mr Kelly sounded his horn tends to suggest alarm that the appellant had created a dangerous situation. I repeat, that on being pressed that he would have been able to estimate the speed of the Toyota, the appellant said:– "Not where I saw where he was sitting on the side of the road anyway".

1. On the basis of the transcript of evidence, I would find for the respondent. Adding to this, the learned Commissioner's finding as to credit, having as he did the advantage of hearing and observing the witnesses, I am unpersuaded that there is sufficient merit in the appeal. I agree with the Commissioner's findings on the whole of the evidence that there was ample room within which the appellant could manoeuvre with safety, but that due to his speed he skidded in a straight line. At the moment of collision he was at least partly on the wrong side of the road. The respondent's vehicle was well on to its correct half of the road.

1. The first ground of appeal is that the judgment was against the weight of evidence. I disagree for the reasons I have expressed. The second ground of appeal is that the learned Commissioner placed undue weight upon the uncorroborated evidence of Mrs Kelly when she said that the appellant asked them not to ring the police, adding that he was on probation and was not supposed to be driving. The third and final ground of appeal is that the learned Commissioner placed undue weight upon the uncorroborated evidence of Mr Kelly that the appellant's vehicle left a 70 yard skid mark, and concluded therefrom that the appellant was travelling at such a speed whereby he could not safely negotiate the corner. Neither of these grounds have been made out. Those matters were not the only ones which led to the finding of negligence. They were just two of a number of pieces of evidence which the learned Commissioner used to come to his conclusion. I am not persuaded that he placed undue weight on them. For all the reasons expressed in his judgment and for the additional reasons I have expressed, there was ample evidence supporting a finding of negligence against the appellant and exonerating Mr Kelly. The appeal will be dismissed.

1. I add that it may well have been unavoidable that the counterclaim and the defence of contributory negligence should have been rejected, because of the way the defence and counterclaim were drawn. Mr Kelly was not the plaintiff. He was only the driver of the vehicle claimed to be owned by her. The defence and counterclaim alleged that the collision was caused or contributed to by the negligence of the plaintiff, but she was only a passenger. No allegation was contained in the defence or the counterclaim that Mr Kelly was driving as her agent, nor was it pleaded that he drove negligently, the allegation being made against the plaintiff only. However, the matter was not raised before me and I only mention it.