Topovsek v Galloway

[1994] QCA 272

IN THE COURT OF APPEAL	[1994] QCA 272
SUPREME COURT OF QUEENSLAND	Appeal No. 5 of 1994
Brisbane
Before	Fitzgerald P. Davies J.A. McPherson J.A.

[Topovsek v. Galloway]

BETWEEN:

JAKOB TOPOVSEK (Plaintiff) Appellant

AND:

ANDREW EROL GALLOWAY (Defendant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 28/07/1994

The appellant was the unsuccessful plaintiff in an action for personal injuries arising out of a motor vehicle accident on 31 October 1987. His action was dismissed in the District Court at Townsville on 15 December 1993.

At about 12.30 p.m. on the day of the accident the appellant, who was then a taxi driver, was driving his taxi in a southerly direction along Stanley Street, Townsville when it was involved in a collision at the intersection of that street with Ogden Street, with a bus then being driven by the defendant in a westerly direction along Ogden Street.

There were, at the time, traffic lights in operation at the

intersection.
At the trial each of the drivers gave evidence that he was
crossing the intersection in accordance with a green light
then facing him. Both plainly could not have been right.
The case therefore substantially turned on a conflict in
testimony between those two witnesses although, as will
appear from what we say later, the appellant contended, both
below and in this Court, that even if the trial judge was
right in rejecting his version, the respondent was also
guilty.

In addition to the appellant and the respondent, two other witnesses gave evidence which bore directly on the above conflict in testimony. One was Deborah Lee Hunt, a passenger in the appellant's taxi. The other Christopher Ian Dewar, a driver of a truck, who had been travelling in the same direction as and in front of the appellant intending to turn left at the intersection into Ogden Street. According to both his evidence and that of the appellant, Mr Dewar brought his truck to a halt at the intersection in compliance with a red light then facing him.

The appellant said that he also brought his vehicle to a halt, beside and to the right of Mr Dewar's truck, in compliance with the red light. When the red light changed to green after some 10 or 15 seconds, he proceeded across the intersection and, when about half way across, observed for the first time the defendant's bus coming from his left at what he described as quite an excessive speed. He endeavoured to accelerate, he said, but the bus collided with the rear passenger side of his vehicle. He did not see the bus earlier, he said, because his vision to his left was restricted by the truck.

The appellant's evidence that he stopped at the intersection in compliance with the red light is inconsistent with the evidence of both the respondent and Mr Dewar. The respondent said that he approached the intersection at no more than 40 kilometres an hour. On looking to his right, he saw the truck driven by Mr Dewar stopped at the lights in Stanley Street. As a green light was in his favour he proceeded on to the intersection and the collision then occurred very quickly. The only inference which can be drawn from this evidence is that the appellant proceeded through a red light on to the intersection.

Mr Dewar's evidence corroborated that of the respondent. His estimate of the respondent's speed accords with that of the respondent. He said that he looked in his rear vision mirror whilst he was stopped at the red light and noticed the appellant's taxi travelling fairly quickly down Stanley Street. He then saw it enter the intersection against the red light and it was only after the collision that the light facing him turned green.

Miss Hunt's evidence was much more limited and the trial judge found that she seemed at times to be somewhat confused. This was also acknowledged by the appellant, who conducted his own appeal in this Court.

The learned trial judge had the advantage, which this Court lacks, of seeing and hearing the witnesses give evidence and thereby forming an assessment of the reliability of the evidence of each. His Honour was plainly impressed by the evidence of Mr Dewar and said so in his reasons. Indeed it was Mr Dewar's evidence which caused his Honour to resolve the conflict between the appellant and the respondent, to which we have referred, in the respondent's favour. The appellant could suggest no reason why Mr Dewar would have given this evidence other than that it was in accordance with his honest recollection.

We find it impossible to conclude that his Honour erred in accepting the evidence of Mr Dewar. And, as we have said, the appellant was unable to advance a reason why that evidence, independent as it plainly was, should have been rejected other than that it was inconsistent with his own which, he assured us, was the truth.

Neither the decision of the learned trial judge to accept in substance the evidence of the respondent, corroborated as it was by that of Mr Dewar, nor the refusal of this Court to overturn that primary finding of fact should be construed as a conclusion that either the learned trial judge or this Court thought the appellant had given dishonest evidence.

Nor has either overlooked the possibility that some part of Mr Dewar's evidence showed that he was mistaken; for example, his evidence that he first saw the appellant's taxi at Sturt Street or that, when it came across the Flinders Street intersection it was travelling at 50-60 kilometres per hour. On the other hand, we think that his Honour was justified, for the reason which he gave, in accepting the evidence of Mr Dewar and consequently of preferring the respondent's to the appellant's version of the events leading up to the collision.

The appellant nevertheless contended that the respondent failed to keep a proper lookout and that that failure contributed to the collision. He pointed out that the respondent said that he simply glanced to his right rather than looking as he should have done. We do not think that, particularly having regard to the green light facing him at all material times, the respondent's look out to his right was inadequate. We therefore reject that contention.

The appeal must therefore be dismissed, with costs to be taxed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 5 of 1994
Brisbane [Topovsek v. Galloway]
BETWEEN:

JAKOB TOPOVSEK (Plaintiff) Appellant

AND:

ANDREW EROL GALLOWAY (Defendant) Respondent

____________________________________________________________

_____

FITZGERALD P.
DAVIES J.A.
MCPHERSON J.A.

____________________________________________________________

_____

Judgment delivered 28/07/1994

REASONS FOR JUDGMENT - THE COURT
____________________________________________________________

_____

APPEAL DISMISSED WITH COSTS TO BE TAXED.
____________________________________________________________

_____

CATCHWORDS:	NEGLIGENCE - ROAD ACCIDENT - EVIDENCE -conflict of testimony between appellant and respondent - respondent's account of events leading up to collision corroborated by evidence of third person - latter's account used to resolve conflict of evidence in respondent's favour - whether third person's account should have been rejected by trial judge as inconsistent with appellant's account - whether trial judge justified in preferring respondent's account
Counsel:	Appellant in person Mr C.A. White for the Respondent
Solicitors:	Messrs Roberts Leu and North for the Respondent
Date(s) of Hearing:	13 July 1994