Tweed v Shepherd - [2008] WASCA 59

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TWEED -v- SHEPHERD [2008] WASCA 59

CORAM: WHEELER JA
MILLER JA
NEWNES AJA

HEARD: 4 MARCH 2008

DELIVERED : 14 MARCH 2008

FILE NO/S: CACV 2 of 2007

BETWEEN: ROGER JAMES TWEED
Appellant
AND
MICHAEL KEVIN SHEPHERD
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :COMMISSIONER LEY
Citation  :TWEED -v- SHEPHERD [2006] WADC 199
File No  :CIV 533 of 2005

Catchwords:

Negligence - Appeal - Motor vehicle collision - Whether findings of the commissioner open - Whether conclusion that no negligence on part of respondent correct - Contributory negligence of appellant

Legislation:

Evidence Act 1906 (WA), s 79C(3)(b)
Road Traffic Code 2000 (WA), reg, 52

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr K J Bradford
Respondent: Mr J P T Olivier

Solicitors:

Appellant: Bradford & Co
Respondent: Talbot Olivier

Case(s) referred to in judgment(s):

Abalos v Australian Postal Commission (1990) 171 CLR 167
Browne v Dunn (1893) 6 R 67 (HL)
Devries v Australian National Railway Commission (1992) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349
Pennington v Norris (1956) 96 CLR 10
Sibley v Kais (1967) 118 CLR 424
Transport & General Insurance Co Ltd v Edmondson (1961) 106 CLR 23
Warren v Coombes (1979) 142 CLR 531

WHEELER JA: I agree with Miller JA.
MILLER JA: This appeal arises out of the decision of a commissioner of the District Court dismissing the appellant's action for damages for personal injury caused by a motor vehicle accident that occurred on 18 June 2002 in Bunbury.
The commissioner was required to determine only the question of liability in the action, as the quantum of damages had been agreed at the sum of $700,000 without prejudice to the issue of liability.
The matter was tried by the commissioner in the District Court at Perth on 11 September 2006. Judgment was delivered on 8 December 2006 dismissing the appellant's claim. From that decision the appellant appeals to this court on four grounds. The first alleges that the commissioner erred in fact and in law in his conclusion about the location of the point of impact. The second contends that the commissioner erred in fact and law in his conclusion about where the respondent's motor vehicle was at the time of the collision, and that the respondent took evasive action. The third contends that the commissioner erred in fact and law in making adverse credibility findings against the appellant. The fourth contends that the commissioner erred in fact and law in failing to deal with certain discrepancies and inconsistencies in the respondent's evidence.

The facts

The accident occurred at about 8.00 am on 18 June 2002. It was a wet morning with conditions which were described by the appellant in his evidence as 'light to medium rain'. The respondent described the conditions as a good deal worse:
Could you see perfectly ahead of you?---Not really. The only way I could see perfectly is - because it was a rainy day. It was - -
There was fog about?---I don't know if there was fog about. The weather was raining. There was a WB ute, and a wiper phase like this, you know.
Yes, a slow wiper phase you're indicating - - -?---Yes. The whole thing about the vision was poor. You couldn't see that.
So with the slow wiper your vision was worse?---No, I could see, but it wasn't the best vision on earth, that's for sure.
That was because it had a slow wiper also?---Well, yes it was raining and the wiper was slow and the - yes, it was raining.

The appellant was on his way to work. He was almost 43 years of age and was travelling from his home in Bunbury to his place of work as an offset printer with Southwest Printing and Publishing Company in Profitt Street, Bunbury. The route that he took was one with which he was very familiar. He had been riding his bicycle to work along the same route since June 2001.
The appellant's bicycle was a 12‑speed racing cycle. He was familiar with it and had been a cyclist for some four years. He was wearing cycling shorts, running shoes, a black spray jacket and a cycling helmet. The shorts were black and the helmet red and black. The cycle had a luminous green flashing light at the front and a red flashing light at the rear.
For the appellant to get to his place of work it was necessary for him to ride south along Robertson Drive, then to turn into a short access road, travel east and join Wilson Road. From Wilson Road the appellant rode south until he reached Profitt Street. It was a complicated route which can only easily be understood only by reference to exhibit 6 in the proceedings, a copy of which is attached to this judgment. Apart from the length of the access road, no dimensions of any road were given on any plan exhibited in evidence.
The access road was known to be 27 metres in length because the appellant had measured it. At the junction of the access road and Wilson Road, there was a dotted white line. In accordance with reg 52 of the Road Traffic Code 2000 (WA) the appellant had an obligation to give way to any vehicle approaching that intersection.

Evidence of the appellant

The appellant gave evidence that the traffic in the area was congested on the morning in question. In particular, traffic moving west on the access road to enter Robertson Drive was banked up.
The appellant said that, as he approached the access road from Robertson Drive, he was cycling at 10 to 15 kilometres per hour. He slowed to turn into the access road and as he cycled towards Wilson Street he slowed again to check the traffic in what he termed 'both Wilson Street and Craigie Street'. On the map exhibit 6, Wilson Road is shown as running north and south past the access road and there is a Craigie Street running to the east from Wilson Road at both the north and the south. In effect, Wilson Road and Craigie Street create a ring road which is intersected by Profitt Street. The appellant mistakenly thought that Wilson Road to the north of the access road was Craigie Street.
The speed of the appellant's cycle was the subject of differing evidence at trial. The appellant estimated that he was riding at probably around 10 to 15 kilometres per hour'. The respondent described the cyclist as 'gun[ning] it' as he came out of the access road. He also estimated a speed of 30 to 35 kilometres per hour, but agreed that this was 'speculation'. A witness, Julie Lorraine Brady, who had turned into the access road with the intention of entering Robertson Drive, said she saw a cycle turn left into the access from Robertson Drive and proceed east towards the intersection 'going very fast'. Another witness, Graeme Lindsay Wills, who observed the cyclist ride out of the access road onto Wilson Road, said that the cyclist had made a perfectly normal right‑hand turn. He made no initial estimate of speed. In cross‑examination he said that because he was behind the cyclist he could not tell whether he was 'speeding'.
The appellant testified that he looked to his left and then right as he came to Wilson Road. He said that the way was clear. When he looked to the right he saw nothing except a truck which was near the corner waiting to turn into the access road. This truck he described as 'about an 8‑tonne truck with a cab separate from the canopy but quite a large canopy'. It was in Wilson Road with its indicator on for a left‑hand turn. It was about to make a turn, because the appellant could see the driver's arm on the steering wheel.
The appellant had to look past the back edge of the truck to see to his right down Wilson Road. He said that he looked past the 'left‑hand back edge of the truck'. Having satisfied himself that the way was clear from both directions, the appellant then proceeded to do a right turn past the truck.
When the appellant turned and reached the middle of Wilson Road, he saw a white utility coming towards him on the wrong side of the road. He demonstrated on a plan where that was, but there is no plan in the exhibits which bears any mark. He described the oncoming utility as being on the opposite side of the road.
The appellant said that he realised that he could not complete his turn without hitting the oncoming vehicle. He tried to brake heavily and pull the bike up on the western side of the oncoming utility (its inside). He managed to avoid the utility, but, unfortunately for the appellant, the utility was towing a trailer. The appellant realised that he was going to hit the trailer because it was wider than the back of the utility. He raised his arm to try to push himself clear from the utility but it appears that his arm caught in the bar work behind the cab of the utility. It caused a bad injury to that arm.
The appellant was thrown from his cycle onto the roadway, landing at a point which he said was 'about the middle of Wilson Road'. He pointed to one of the plans exhibited in evidence and said that he thought the impact occurred a little south of the intersection (junction) of the access road and Wilson Road. He estimated that position as being about 10 metres south of it.
The appellant said that as he was lying on the ground a number of people came to him. One of them was the respondent whom he said had told him he was sorry and 'that he didn't see [him]'. This was later denied by the respondent.

Evidence of the respondent

The respondent testified that at 8.00 am on the morning of 18 June 2002, he drove a Holden utility, towing a tandem trailer, in a northerly direction along Wilson Road. The tandem trailer was about 8 feet long and 6 feet wide and the whole outfit about 10 metres in length. He had a load of rectangular hollow section (RHS) and flat bar steel running through racks on the trailer and on the utility. He said that was travelling about one and a half feet off the kerb.
The respondent volunteered in cross‑examination that the vehicle in which he was travelling left much to be desired in terms of the visibility it afforded him. He said:
[I]t wasn't really the best condition car, you know, the windows were - the car was in good condition but the windows were dirty, everything was always covered in dust or paint overspray and that.
It wasn't well maintained. It was a work vehicle?---It was a work vehicle, simply a work vehicle. It's a work ute, it's - you know, you can see out of it.
The respondent's utility and trailer made up a substantial vehicle. He described it in this way:
[T]he ute is, give or take, six metres long, you've probably got a metre and a half of drawbar on the trailer and then I think it was about a two and a half‑metre long trailer, maybe even 10 foot, could have even been a three metre long trailer.
The combination of utility and trailer was thus at least 10 metres long.
As the appellant approached the access road, he saw a vehicle protruding from it into Wilson Road. That vehicle was protruding out 'probably two and a half to two foot'. He indicated and veered around it. He said that he veered 'probably another two foot at the max'. He described the vehicle around which he veered as a van. It was 'a long reach ute with a canopy on the back'. His explanation of what then happened was as follows:
Were your traffic indicators working? I think you told us ‑ ‑ ?‑‑‑Yes. I had my headlights on as well. They were definitely on. It was a rainy day, it was pretty poor vision. But I've just come around the rear of this vehicle and I've looked to my left and I've seen a cyclist absolutely gun it.
One of the plans exhibited in evidence revealed that in the access road there was a traffic island. This is not shown in exhibit 6. The respondent said that he thought that the front of his vehicle might have been 'at that island'. His evidence was:
I'm not exactly certain, the front of the vehicle could have even been on that island. I'm not real certain but I've seen - the cyclist has just pulled straight out in front of me.
THE COMMISSIONER: The front of your vehicle has been adjacent to the island in the access road. What has happened then?‑‑‑It could have been a little bit before being adjacent, I'm not exactly certain.
The respondent said he swerved to the right but the cyclist hit the front of his vehicle, or the front passenger panel of it. He estimated the speed of the cycle at 30 kilometres per hour 'maybe 35'.
The commissioner asked the respondent where his vehicle was with reference to the protruding vehicle when the collision occurred. The question and answer were as follows:
THE COMMISSIONER: By the time this happened, had you already passed the vehicle that had been protruding out into Wilson Road?‑‑‑The trailer would have just come past it. … So [it] would have probably just come past the rear of the - but that van by that stage - I'm not exactly certain, but that van would have already moved up by then.
The respondent thought at first that he may have missed the cycle, but he then heard a thump and assumed that the cyclist had hit his trailer or at least the rear of his vehicle. He 'straightened up' and pulled over to the side and stopped his vehicle. He stopped on the wrong side of the road in front of a power pole which was in turn in front of the WesTrac yard at that location.
The respondent said that he could not have hit the appellant 10 metres south of the median strip in the centre of Wilson Road. He was asked why he had pulled up on the wrong side of the roadway and he said he had done this because he thought the cyclist had hit the trailer and was in it. When he got out of the vehicle the respondent saw the appellant lying in the middle of the intersection.
A traffic report made by the respondent revealed that he was only 18 years of age at the time of the collision. He was an apprentice boilermaker/welder, who was 'on P plates' at the time of the accident. He had held a motor vehicle driver's licence since he was 17 years of age, and accordingly he had approximately one year's experience of driving on the roads.
When cross‑examined, the respondent said that he was driving at about 45 to 50 kilometres per hour on the day in question. It was a rainy day and his windscreen wipers were operating. Apparently the windscreen wiper was slow. He described it as 'slow wiper'. I have already quoted the passage in which he said that his 'wasn't the best vision on earth that's for sure'.
In his Police Accident Report form the respondent said:
I was driving along Craigie St from Tubemakers Metaland heading to George Nulsen & Co. Outside Westrac's main gate there is an intersection from Robertson Drive to Craigie St & as I neared it, a cyclist pulled out in front of me. I swerved right to miss him but he couldn't turn sharp enough & missed my vehicle but hit the trailer on the back.
He described the point of collision as 10 metres 'S [south] of WesTrac'. He made a small sketch of the locality and marked with a cross and small circle where he said the appellant's body came to rest. The cross was south of the access road, but the circle in the middle of it.
The commissioner was of the view that it was impossible to say where the point '10 metres south of WesTrac' might be. He concluded that it could easily have been a point on Wilson Road immediately adjacent to the eastern end of the median strip.
The court was taken to many passages in the examination and cross‑examination of the respondent in which he endeavoured to explain the events leading up to and including the impact with the appellant. Many of these statements were in conflict with each other.
In examination‑in‑chief the respondent said that when he saw the cyclist he had not attempted to steer left for the following reason:
Why didn't you perhaps try steering to your left?---There was no time and I was already on the left‑hand side of the road and if I had have pulled to my left, I would have definitely hit him.
From this passage the commissioner was later to conclude that the respondent, having passed the obstructing vehicle jutting out from the access road into Wilson Road, had pulled back to the left‑hand side of the roadway. However, it is a passage which is in direct conflict with what the respondent thereafter said. It is also contrary to all the objective facts: there was simply insufficient distance covered by the respondent's vehicle after passing the obstructing vehicle for it to have come back to the left‑hand side.
In cross‑examination the respondent conceded that the vehicle and trailer that he was driving were such that he had to be careful when making a manoeuvre around something. He said 'you generally cut it wide' when passing something on the inside. When carrying a load of steel he had to be even more careful when driving. It would not be possible for example to make a quick veer to the right. With the load he was pulling it was necessary for him to drive slower than usual and on the morning in question he was driving at about 45 to 50 kilometres per hour.
The respondent said that when passing the obstructing vehicle he would have taken his foot off the accelerator but then maintained the speed of 45 to 50 kilometres per hour.
The respondent's best estimate was that he was about 1 metre away from the left hand kerb as he proceeded around the obstructing vehicle. He put this at 'a metre, three and a half foot off the kerb'. It was after he had passed the obstructing vehicle that he saw the appellant. He was asked where he was then positioned on the roadway and said:
BRADFORD, MR: Well, the right wheels of your vehicle on the wrong side of the road, were they still there?---Well, I can't be certain. I wouldn't have swerved that hard because I had a trailer behind me.
Yes?---But I would have probably started to veer back but not in any great - - -
…
So you're saying you started to move back just as you drew adjacent to the median strip?---Yes, well, I would have been probably - yes, I would have started to move back around that area, adjacent to the median strip, because, yes, I'm not going to stay on the wrong side of the road by any means, especially on that corner.
In another passage in the cross‑examination the respondent repeated that he had not positioned his vehicle back alongside the kerb:
If you were completely in the left lane how's that possible?---I didn't say I was completely in the left lane I was - - -
It is obvious from the photographs and plans that were tendered in evidence that the respondent's vehicle could not have come back to a position parallel with the kerb at the time the collision occurred. The obstructing vehicle was in the access road and as the respondent veered around it he was himself passing by the access road. Further, he was driving a utility pulling a very large trailer and sudden movements were out of the question. The trailer would obviously have followed the direction of the utility and it is impossible to conceive of the utility and trailer positioned back on the left‑hand side of the roadway immediately prior to the collision with the appellant.
In a very revealing passage in the cross‑examination the respondent indicated his attitude to the intersection in question:
You had no idea of the vehicles coming through the access road on the chicane?---Well, what I could see - - -
You wouldn't be able to see would you?---No, but what I could see was the road ahead of me and that's all that mattered because you're meant to give way at that chicane. To my knowledge I had right of way to all traffic. (emphasis added)
The respondent also referred to the intersection as 'horrible' and 'nasty' in the following passages:
You've done that yourself?---Yes, once or twice in my life, yes. There's no doubt about it that it's used as a chicane. It's a horrible intersection.
…
You were aware of those things before the accident?---Yes. I was aware that that intersection is a nasty intersection. I won't deny the fact that that intersection is - there's limited vision for starters and quite frankly it's bad for the drivers on Wilson Road to see what's coming from the intersection and it's bad from the intersection to see what's on Wilson Road. It's bad on both behalfs. That's why they need to put some signage or something there. I don't know. Something needs to be done with it. We've actually complained to the council when I was doing my apprenticeship about the intersection about the corner further up and what‑not. It's a bad area.

There was considerable conflict in the evidence of the respondent about the location of the point of impact. In his evidence the respondent spoke of two entrances to the WesTrac property. These are shown on photographs which were exhibited at the trial. One is an entrance to what is described as the 'CAT' rental site and the other an entrance to what was described as WesTrac. At one point in his cross‑examination the respondent claimed that when he spoke of a point of impact 10 metres south of WesTrac he was referring to the WesTrac entrance road to the north. He put it this way:
Where you say S or south of WesTrac in the report to the police, did you mean there 10 metres south of that access road?---Well, if I said south of WesTrac I dare say I would have said 10 metres south of the WesTrac entrance road which is to the north.
However, on no view of it could the collision have occurred 10 metres south of the northern most access road to the WesTrac property. The photographs reveal that to be well past the access road.
The respondent was vigorously cross‑examined about his evidence that the point of impact was opposite the median strip. He gave the following answer to one question:
I was 17 years old - sorry, just turned 18, and I had just hit a man on a pushbike. At that stage in time the facts weren't exactly jumping out of the woodwork saying, 'Look, look at me. I'm here.' I stick with that story because that's what I definitely remember and I can remember the ambulance parked across the median strip.
It was put to the respondent in cross‑examination that he had made no mention in his report to police about veering around a stationary vehicle. The respondent agreed but contended that he had volunteered this information to police. He accepted that the right‑hand wheels of his vehicle were over the 'imaginary middle of the road' and he was partly on the other side of the roadway. It was put to him by cross‑examining counsel that he had not told police this because he did not want the police to know about it. This proposition he denied.
In a statement made on 8 July 2002, the respondent said that as he had approached the access road, there was a stationary vehicle, the rear of which was on 'Craigie Street [sic Wilson Road]'. He said that when about 15 metres from the intersection he started to slow and move slowly to the right to go around that vehicle. He said that he had moved approximately two feet to his right and was just coming to the intersection when he saw a bike rider 'cut the corner turning right onto Craigie Street [sic Wilson Road] putting himself directly into my path'.
The respondent testified that after he had passed the stationary vehicle which was jutting out into Wilson Road, he 'would have probably started to veer back'. He said:
I would have started to move back and that's about when I saw the plaintiff exit the intersection.
So you're saying you started to move back just as you drew adjacent to the median strip?‑‑‑Yes, well, I would have been probably - yes, I would have started to move back around that area, adjacent to the median strip, because, yes, I'm not going to stay on the wrong side of the road by any means, especially on that corner.
The respondent was taken to his statement to police. He agreed that he had not said in that statement that he had moved back to the left when he saw the cycle. What he had said was 'I swerved hard to my right and then to the left trying to avoid the bike rider'.

The commissioner's conclusions

The commissioner considered the issue of credibility of the witnesses before reaching any conclusions. He found some aspects of the appellant's evidence 'not very satisfactory' describing him as 'defensive and argumentative in cross‑examination'. He described the respondent as having given his evidence 'in a more forthright and defensive manner'. He accepted the evidence of the two independent witnesses (although what they saw was very limited) and he preferred the evidence of the respondent to that of the appellant.
In his findings, the commissioner first concluded that the appellant had travelled 'very fast' into the access road and east along it. He accepted also the evidence of the respondent that the appellant had 'absolutely 'gun[ned] it' as he entered Wilson Road. Despite this, the commissioner conceded that he was unable to make any finding as to the exact speed of the appellant. His conclusion was that the appellant had entered the intersection at a speed which, having regard to the wet conditions and poor visibility, was excessive.
The commissioner accepted that there was a stationary van or utility in the access road protruding two to two and a half feet into Wilson Road. He did not accept the appellant's evidence that it was an 8‑tonne truck.
The commissioner declined to conclude that the respondent had failed to keep a proper lookout and found that he had kept a proper lookout at all material times. He accepted that as he approached the intersection he had veered two or three feet to the right to pass a stationary vehicle 'but then moved back to his correct side of the road'.
The commissioner declined to accept the appellant's evidence that he had looked to the right to see whether there were any vehicles coming from the south because had he looked, he would have seen the respondent's vehicle.
The commissioner concluded that the appellant had proceeded onto Wilson Road from the access road without stopping at the give‑way line, without observing or heeding the approach of the respondent's vehicle from the south, and without giving way to that vehicle. He found that the collision had occurred 'at or slightly south of a point on the western part of Wilson Road immediately to the east of the eastern end of the median strip'.
The commissioner turned to the provisions of the Road Traffic Code and noted that, by reason of reg 52, the appellant had been obliged to give way to the respondent's vehicle.
The ultimate conclusion of the commissioner was that the appellant had not established that at the time of the accident the respondent failed to keep a proper lookout or drove onto his incorrect side of Wilson Road. Nor had he established that the respondent failed to swerve, steer or otherwise manage his vehicle to avoid a collision. Although the evidence established that the respondent had not applied his brakes, application of the brakes would not have prevented the accident. The commissioner said:
In my opinion, the accident was caused by the plaintiff failing to keep a proper lookout as he was approaching the intersection, particularly for vehicles travelling north on Wilson Road approaching the intersection from the south, by the plaintiff riding his bicycle into the intersection at a speed which was, in the circumstances, excessive and by the plaintiff failing to give way to the vehicle being driven by the defendant, in circumstances in which he was obliged to do so.

Grounds of appeal

The grounds of appeal are deficient. They deal respectively with four alleged errors on the part of the commissioner in relation to findings that he made. Unfortunately, they are not prefaced with a ground which contends that the commissioner was in error in concluding that there was no negligence on the part of the respondent which cause the collision.
Nevertheless, at the hearing of the appeal counsel for the respondent graciously conceded that the issue on appeal was the question whether the respondent had been negligent in the manner in which he drove on the day in question and whether that negligence was a cause of the collision. Counsel for the respondent stated that he would not take the point that the grounds of appeal failed to raise this central issue and agreed that they should be read as implicitly attacking the commissioner's conclusion on the issue of negligence.
Counsel for the appellant contended that the four grounds of appeal directly raise the question whether the commissioner erred in law in concluding that there was no negligence on the part of the respondent. The contention was that the four grounds particularised where the commissioner erred in that respect.

Ground 1

The first ground of appeal attacks the commissioner's conclusion that the point of impact was at or near the median strip in the access road to Wilson Road. It is argued that the only reasonable conclusion was that the collision had occurred 10 metres south of the median strip at a point well after the appellant had executed a turn into Wilson Road. The particulars annexed to the ground contend (inter alia) that the commissioner failed to appreciate the unchallenged evidence of the appellant that his body had been thrown backwards in the collision; that he failed to appreciate the respondent's evidence that the appellant's body came to rest south of the median strip; that he failed to have regard to the evidence of Wills who said that the collision had occurred after the appellant had executed a turn into Wilson Road; and that it 'was glaringly improbable' that the point of impact was at or about the median strip.
Central to the appellant's argument on this ground is that the commissioner speculated when concluding that it was impossible to say where the point '10 metres south of WesTrac' identified by the respondent might be. The appellant contends that the only reasonable conclusion on the respondent's own evidence was that the main gate of WesTrac was opposite the median strip in the access road and the precise point of impact was 10 metres south of WesTrac, meaning 10 metres south of WesTrac's main entrance.
The evidence of Ms Brady was that she had turned out of Wilson Road into the access road with a view to travelling on Robertson Drive. She saw the cyclist when she had just moved around the corner. He was coming around the corner from Robertson Drive. She said that he was going very fast, but she made no estimate of his speed. As she moved forward, she heard a noise. She looked in her rear‑vision mirror and saw the cyclist in the air. She did not see the collision. She did not see where the cyclist came to rest. She described him as being in Wilson Road when he was in the air. She said that the cyclist's body came to rest out of her vision. He was further down to the south of Wilson Road. She had seen his body fly south.
Mr Wills had driven from Robertson Drive into the access road with the intention of turning right into Wilson Road. He saw the cyclist approaching Wilson Road and he saw him enter Wilson Road. His description was as follows:
The pushbike rider was riding out onto the road and the next thing, he done a very sharp right‑hand turn trying to come back and that's when he lost control.
And what happened?‑‑‑The next thing I saw he was flying through the air and along the ground also, and at the same time I saw a motor car heading in the sort of direction.
THE COMMISSIONER: In a northerly direction?‑‑‑Yes, northerly direction, heading across the road.
Mr Wills said that the cyclist came to rest slightly to the north of a point adjacent to the median strip in the access road.
Mr Wills was unable to say whether or not the cyclist had been thrown backwards. He was unable to say where the point of collision was. He estimated the speed of the utility as it went past at 'about 50 kmh or less'. He said that the speed of the cycle was 'a normal speed' for a push‑cycle. He accepted in cross‑examination that the position of the body could have been a little further south than where he had said it was.
Although the evidence of Ms Brady and Mr Wills appears to be in conflict, it seems to me that there is substance in the first ground of appeal. The conclusion that the point of collision was at or about the position of the median strip in the access road does not seem to me to accord with the evidence as a whole.
On a fair reading of the evidence, the appellant had executed a turn from the access road when the collision occurred. To have been hit at a point immediately adjacent to the median strip in the access road, denies the fact that he could have turned. It rather suggests that he must have come straight out of the access road and been hit at that point.
Whether it is correct to say that the only reasonable conclusion was that the collision occurred precisely 10 metres south of the median strip is another question. There is evidence which would suggest that the respondent himself put the point of impact south of the access road. He did describe it as 'south of WesTrac', but just exactly where he meant is unclear. Certainly it was not 10 metres south of the northernmost entrance to WesTrac. It therefore seems that he must have been referring to a point approximately 10 meters sought of the 'CAT' entrance. This entrance was directly opposite the access road.
The commissioner questioned the respondent about the police accident report and in particular about the sketch of the locality which the respondent had drawn. In answer to the commissioner's questions the respondent said that he had shown a circle and cross on Craigie Street [sic Wilson Road] to indicate a pedestrian [sic the appellant]. A small circle which is shown at the eastern end of the access road was said to represent where the appellant's head was when he came to rest on the roadway. Because the circle and cross are no‑where near to scale, little significance can be attached to the sketch which the respondent made. On one view it actually shows the body partially in the access road and partially to the south of it, but according to the respondent the appellant was 'in the middle of the intersection'.
Although the commissioner invited cross‑examination on the questions that he had asked, there were no questions to expand upon what the sketch meant.
I would uphold ground 1 to the extent that the commissioner erred in concluding that the point of impact was 'at or slightly south of a point on the western part of Wilson Road immediately to the east of the eastern end of the median strip in the access road'.

Ground 2

The second ground of appeal challenges the commissioner's conclusion that immediately before the collision the respondent had returned to the correct side of Wilson Road and that he had then taken evasive action. It is contended that this finding was glaringly improbable. A number of particulars are given. In essence, they contend that as the respondent was towing a trailer which was difficult to steer and had he veered around a stationary vehicle 15 metres south of the beginning of the intersection, he could not have returned to the correct side of the road.
The commissioner's conclusion was in the following terms:
I also accept the evidence of the defendant and find that, as he approached the intersection, he veered two or three feet to the right to pass the stationary vehicle but then moved back to his correct side of the road [67].
A reading of the totality of the evidence of the respondent does not support a conclusion that he veered back to the correct side of the road. At best, he assumed that he probably would have started to move back. I have already quoted the passage in which he rationalised why that would be. He said that he would not have stayed on the wrong side of the road by any means. It is significant however, that his answer is couched with the words 'would have'. Only once did he say that he had veered out onto the incorrect side of the roadway and straightened back onto the correct side. Thereafter he seemed to accept that he would have been coming back towards the correct side. In his statement to police he said that he had moved approximately two feet to his right to get around a stationary vehicle and that when he had seen the cyclist, he had swerved hard to his right and then to his left to avoid the cycle. He made no mention about having moved from the incorrect side of the road back to the correct side before he saw the cycle.
In my opinion, the conclusion of the commissioner was unsupported by the evidence. It was an important conclusion because the commissioner was of the view that there was no negligence on the part of the respondent, he having moved out to the wrong side of the road to pass a vehicle and then having moved back to the correct side. If this conclusion is wrong, and the respondent was over the 'imaginary centre white line' of Wilson Road, the case presents an entirely different picture.
In my opinion, the commissioner's conclusion was unjustifiable on the evidence. On my reading of the evidence, the position was that the respondent had veered out to the wrong side of the road to pass a stationary vehicle which was banked up at the access road and he was still more or less in that position when he saw the cyclist. He was thus, at least partly, on the wrong side of the roadway. It was because of this that the cyclist turned hard to the right to try and miss the vehicle and passed down its left or 'inside' side.
I consider that ground 2 has been established.

Ground 3

This ground attacks the commissioner's conclusions about the credibility of the appellant.
The commissioner did of course hear the evidence and he had the great advantage of seeing the manner in which the evidence was given by the different witnesses. The 'subtle influence of demeanour' cannot be overlooked: Abalos v Australian Postal Commission (1990) 171 CLR 167, 179 (McHugh J). See also Devries v Australian National Railway Commission (1992) 177 CLR 472, 479 (Brennan, Gaudron and McHugh JJ).
On the whole, I am unable to conclude that the commissioner palpably misused the advantage which he had of seeing and hearing the witnesses (Abalos (179) (McHugh J)). What is at issue however is the interpretation placed by the commissioner on that evidence. It is not a question of overturning findings of fact based on the credibility of witnesses, in which event caution would be called for, (Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349, 351; Abalos (179)). Rather, it is a case in which this Court is called upon to consider 'contemporary materials objectively established facts and the apparent logic of events': Fox v Percy (2003) 214 CLR 118 [31] (Gleeson CJ, Gummow and Kirby JJ). See also, Warren v Coombes (1979) 142 CLR 531, 551.
Reading the transcript, there is little apparent foundation for the conclusion that the appellant was defensive and argumentative during cross‑examination. As far as I can see, all that the appellant said was that he thought that cross‑examining counsel seemed 'quite angry' and when propositions were put to him by cross‑examining counsel, he answered 'So you say' on a number of occasions. There is nothing in the transcript to suggest that the appellant was argumentative. To the contrary, he appeared to be finding it difficult to understand whether cross‑examining counsel was putting a question to him or a statement. Once the process was explained to him, he appeared to accept it. He expressed concern at the 'level of anger' that cross‑examining counsel was using and when told by the commissioner that if there was any problem with that, his counsel would attend to it, he appeared to accept it. Further, I can find no evidence of the appellant seeking to 'argue his case' as found by the commissioner.
However, whether or not the commissioner erred in that respect is irrelevant to the determination of this appeal. That is because, even accepting the respondent's evidence, it appears to me that the commissioner erred in concluding that the respondent was not negligent.

Tender of prior consistent statements

The appellant's statement to investigating police and a statement to an insurance investigator were tendered in re‑examination by his counsel. These statements were apparently tendered on the basis that the respondent's counsel had accused the appellant of 'recent fabrication of his evidence'.
The commissioner put to counsel for the respondent that if it was part of his case that the evidence of the appellant was a recent invention the statements would be admissible. Counsel for the respondent contended that there was no entitlement to put the statements unless he had cross‑examined on them. This was not the point.

As far as I can see there was no assertion by counsel for the respondent that the appellant's testimony was recent invention. Nor in fact was there an assertion that it was a fabrication. What counsel for the respondent endeavoured to do was put the respondent's version of events to the appellant in accordance with the rule in Browne v Dunn (1893) 6 R 67 (HL). Counsel did put to the appellant that the collision had never occurred as the appellant contended but there was no assertion that the appellant was lying or fabricating his evidence. Certainly there was no assertion that it was of recent invention.
Nevertheless, the statements got in and were admitted in evidence. There is no cross appeal contending that they were inadmissible.
A previous consistent statement by a witness is admissible to rehabilitate credit by rebutting the suggestion that the testimony is a construction subsequent to the events in question: J D Heydon Cross on Evidence (7^th Aust ed, 2004) [17305]. Where a statement is admitted under this rule, it is admitted not as evidence of the truth of its contents, but as tending to disprove a concoction: Cross on Evidence [17315].
In Transport & General Insurance Co Ltd v Edmondson (1961) 106 CLR 23, McTiernan, Taylor & Menzies JJ restated the relevant principles in the following terms:
The principles upon which evidence of earlier statements may be admitted to re‑establish the credit of a witness whose credit has been impugned by a suggestion of recent invention are firmly established and a recent statement of them is to be found in The Nominal Defendant v Clements (1960) 104 CLR 476. In the circumstances it is, we think, desirable to repeat what was then said: 'The rule of evidence under which it was let in is well recognized and of long standing. If credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction. But, inasmuch as the rule forms a definite exception to the general principle excluding statements made out of court and admits a possibly self‑serving statement made by the witness, great care is called for in applying it. The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, from the nature of the matter, if there be an appeal great weight should be given to his opinion by the appellate court. It is evident however, that the judge at the trial must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid by the party but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack'. (28)
It is apparent that in the present case these principles were not applied by the commissioner when he ruled the statements admissible.
The commissioner was required to take care in the way in which he dealt with the statements. They were admitted for the purpose only of answering an attack which asserted that the appellant had either fabricated or recently invented the account which he was giving to the court. In fact, there is nothing in the evidence to suggest that such an attack was made. This makes it somewhat academic to consider how the statements should have been considered. At best, they were admissible only for the purpose of answering the attack of counsel for the respondent that the appellant's account of how the accident occurred could not possibly have been true. It was not open to the commissioner to roam through the statements to find passages which may have contradicted the evidence of the appellant. Unfortunately this is what he did. This was in breach of the rules of natural justice in the sense that the appellant had no opportunity to answer the matters which were seized upon by the commissioner.
The commissioner relied upon the contents of one of the statements to conclude there were discrepancies between the appellant's verbal evidence and what he had said to police. The discrepancies relied upon related to the failure of the appellant to make mention of a give‑way line and his reference in the statement to an 8‑tonne truck.
The commissioner noted that in his oral testimony the appellant had said nothing about the colour of the truck or striping on it, details of which were contained in the police statement. He also noted some variation in the police statement from the oral testimony about the movement of the truck. In the statement he had said that he had observed the truck to originally head north on Craigie Street [sic Wilson Road] before turning into the access road. This was not what he had said in his evidence.
In my opinion the commissioner erred in law in the manner in which he dealt with the prior consistent statements of the appellant and to that extent ground 3 is made out.

Ground 4

The fourth ground of appeal contends that the commissioner erred in failing to deal with critical discrepancies and inconsistencies in the evidence of the respondent and failed to note the respondent's concession that his evidence was in part based on speculation and guesswork.
The particulars to ground 4 detail numerous instances in which the evidence of the respondent was both intrinsically inconsistent and inconsistent to an extent with the evidence of the independent witness Mr Wills. The inconsistency with his evidence is said to be that whilst he observed the appellant to be riding in a normal manner the respondent referred to the appellant as 'absolutely gun(ning) it', and even made an estimate of 30 to 35 kilometres per hour. The latter estimate was later admitted to be speculative and any estimate was admitted by the respondent to be based upon what actually happened. In this respect he said:
The only time I could judge his speed is by the reaction of what happened, you know, he flew through there. That's all I can judge it on and it's just - if he had been travelling at 10 to 15 kilometre an hour he could have put his breaks on and stopped dead.
A number of inconsistencies in the testimony of the respondent about the location of the point of impact were also referred to. There was reference to the fact that the respondent had told investigating police that he had an empty trailer when it was fully laden with steel. In fact, it appears that it was the utility that was laden with the steel, which in turn was overhanging the trailer. The respondent did however tell police that the trailer was empty. He said in his evidence that it 'might have been empty' and later amended this to an answer that 'it wasn't full'.
Inconsistent answers given by the respondent as to the distance of protrusion into Wilson Road of the stationary vehicle of the access road were also referred to. At one point the respondent said that the rear of the stationary vehicle was about a metre on to Craige Street [sic Wilson Road]. Earlier he had said that it was about 1 1/2 or 2 feet. He then put his own vehicle about '3 1/2 foot' off the kerb.
Reliance was also placed upon the respondent's testimony that the stationary vehicle was variously described as a van and as a vehicle or 'a ute with a canopy'. The respondent was not exactly certain what it was.
These various inconsistencies were not referred to by the commissioner when he assessed the credibility of the respondent. The commissioner's assessment of the respondent's credibility was in the following terms:
On the other hand, the defendant gave his evidence in a more forthright and less defensive manner. He was quite prepared to concede when he was not sure of certain facts but firmly denied propositions in areas where he was certain. He was not seriously shaken in cross‑examination.
This assessment did fail to take account of a number of inconsistencies to which the court was referred, but on the other hand the commissioner was not called upon to deal with every inconsistency or shortcoming in the testimony of the respondent. What I take the commissioner to be saying is that in terms of general credibility he was more impressed with the evidence of the respondent than he was with the evidence of the appellant. Nevertheless, that was not the end of the matter. The question was whether on all of the evidence, including all the objectively established facts and the logic of events, the appellant has established that there was negligence on the part of the respondent.
I accept that the commissioner failed to deal with many inconsistencies in the evidence of the respondent, but that in itself is insufficient to substantiate the ground of appeal and I would dismiss ground 4.

Was there evidence of negligence on the part of the respondent?

It seems to me that the true question is whether, on the evidence, there was negligence on the part of the respondent. The grounds of appeal do not squarely address this contention, but it is apparent that this is what the appellant's case is about. The respondent concedes it to be so.
There were four particulars of negligence alleged in par 4 of the statement of claim:
4.The accident was caused by the negligent driving of the vehicle by the Defendant.
PARTICULARS OF DEFENDANT'S NEGLIGENCE
4.1Failed to keep a proper lookout for other road users including pedestrians adequately or at all;
4.2Drove the vehicle on the incorrect side of the road;
4.3Failed to swerve, steer or otherwise to avoid collision with the Plaintiff:
4.4Failed to apply his brakes timeously or at all.
When the commissioner made his findings, he first dealt with the behaviour of the appellant, finding that he had entered the access road and proceeded to the scene of the accident at a speed which was excessive in the circumstances. The commissioner then concluded that, although there was a stationary vehicle in the access road protruding into Wilson Road, it was not an 8‑tonne truck or any similar vehicle. This conclusion seems to be of no real consequence, as there was on my view of the evidence a vehicle protruding into Wilson Road. It must have obscured the vision of the appellant when looking right and the vision of the respondent when looking toward the access road.

Particular 4.1

The commissioner concluded that he could not find that immediately prior to the accident the respondent had failed to keep a proper lookout. He thus dismissed particular 4.1.
In my opinion the commissioner was in error in reaching this conclusion. There was evidence from the respondent that he knew the 'intersection' that he was approaching to be 'horrible' and 'nasty' and one where signage or some other action was required to improve the area. His knowledge of this necessitated that he should keep a very careful lookout for traffic emerging from access road on to Wilson Road. This was particularly so on the morning in question. It was raining and in the words of the respondent 'misty'. He was driving a vehicle which had a defective windscreen wiper and dirty windows which must have obscured his vision. He conceded that he did not have 'the best vision on earth'. In these circumstances particular care was required. Further, he was carrying a substantial load of steel on his utility. This steel projected back on to his trailer. He was driving an 'outfit' of considerable length. He was travelling at 45 to 50 kilometres per hour when he came across an obstruction on Wilson Road. It is apparent that this obstruction obscured his already difficult view of the access road. Great care was required before he proceeded around that obstruction towards the junction of Wilson Road and the access road.
Unfortunately, the attitude of the respondent seems to have been that all that mattered was that he could see the road ahead of him. Because vehicles approaching Wilson Road from the access road (described as 'the chicane') had to give way he had the 'right of way' and was entitled to proceed on as he did.
In all the circumstances it seems clear to me that there was a failure on the part of the respondent to keep a proper lookout for other road users. A lookout for 'pedestrians' has got nothing to do with the case and one suspects that particular 4.1 is taken from a word processing template. Nevertheless, there was in my opinion a clear failure to keep a proper lookout for other road users. For all the reasons I have mentioned, there was a failure on the part of the respondent to keep a proper lookout for other road users. The commissioner was thus in error in dismissing particular 4.1 of the particulars of negligence.

Particular 4.2

The commissioner accepted the evidence of the respondent that as he approached the intersection he veered to the right 'but then moved back to his correct side of the road'. For this reason the commissioner dismissed particular 4.2.
As I have pointed out, the totality of the respondent's evidence did not support a conclusion that he had veered back to the correct side of the road. The commissioner's conclusion does not accord with the evidence.
Particular 4.2 was, in my view, made out. The respondent did drive to the incorrect side of the roadway. He did that to get around a stationary vehicle in the access road which was jutting onto Wilson Road and waiting its turn to move up to Robertson Drive. In these circumstances, it was incumbent on the respondent to either (a) stop and wait until that vehicle had moved off Wilson Road; or (b) move around it at a very slow and careful speed. Either or both these alternatives were what a reasonable driver would, in all the circumstances, have done.
The respondent conceded in cross‑examination that there was nothing preventing him from slowing down and waiting for the obstructing vehicle to get out of the way. He agreed that this was the ideal thing to do:
[W]hen it's busy and you're going from the southern part of Wilson Road past that access road to your employer's, your place of employment, you've been stuck there before behind vehicles waiting to get into Robertson?---I have been, yes.
When you've been stuck there you also know that the vehicles coming from the other direction are using it as a bit of a chicane?---They can do. Generally not at that time in the morning, as I said before.
The ideal thing to do is to wait until the vehicles in front of you leave?---That would be the ideal thing, yes. In that circumstance but, no, because the vehicle in front of me wasn't on Wilson Road.
As the respondent approached the stationary vehicle, he knew that there was an access road on the other side of it. From that access road it could be expected that traffic would seek to turn into Wilson Road. For the respondent to move his vehicle to the wrong side of the roadway at the point where he did, constituted a danger to anybody endeavouring to do a right turn from the access road into Wilson Road to travel south. Any person doing so would be confronted by a vehicle on the wrong side of the roadway - or at least partially on the wrong side of the roadway. That in fact is what occurred, as the respondent's vehicle had moved on his own admission, partly to the wrong side of the roadway.
I agree with the contention of the appellant that the respondent's vehicle and trailer could not have returned to the correct side of the roadway in the distance which was available between the point where the respondent had moved out and the location of the access road. The commissioner should therefore have accepted that particular 4.2 of the particulars of evidence, was made out.

Particular 4.3

Particular 4.3 contends that there was a failure to swerve, steer or otherwise avoid the collision. In fact, the respondent did swerve and did steer in an attempt to avoid the collision. This particular is not made out.

Particular 4.4

Particular 4.4 contends that the appellant failed to brake 'timeously or at all'. I take this to refer to the moment before the collision occurred. Given the emergency which arose, it is difficult to say that the respondent was required to apply his brakes when he saw the appellant. What he should have done was apply those brakes earlier and bring his vehicle to a stop behind the obstructing vehicle, or alternatively, brake and go very slowly around the vehicle. To the extent that he failed to do this, he was negligent but not to the extent that he should have braked when he saw the appellant. The particular does not specify that there was a failure to brake at the point where the respondent saw the stationary vehicle and in the circumstances it cannot be made out.

The Road Traffic Code

It should be stressed that the provisions of the Road Traffic Code do not define the duty to take reasonable care in given circumstances on the roadway. The commissioner in this case seems to have been influenced by the provisions of reg 52 of the Code and appears to have taken the view that because the appellant was in breach of reg 52, he was really the cause of the collision. This seems to be at least one of the conclusions contained in the final paragraph of the commissioner's judgment.
In Sibley v Kais (1967) 118 CLR 424, the High Court (Barwick CJ, McTiernan, Kitto, Taylor and Owen JJ) made this observation about the relevance of provisions of the Road Traffic Code:
The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case. (427)

Conclusion on negligence

Application of the principles expressed in Sibley v Kais to the present case means in my opinion:
(a)both the appellant and the respondent had an obligation to take reasonable care as they approached the intersection;
(b)the respondent was required to have his vehicle so far in hand that he could bring it to a halt or otherwise avoid an impact should he find another vehicle come into his path from his left;
(c)by placing his vehicle on the incorrect side of the roadway to get around the vehicle blocking portion of Wilson Road, the respondent did not have his vehicle sufficiently in hand to avoid the possibility of a collision should a vehicle come out of the access road;
(d)the exercise of reasonable care required the respondent to either stop his vehicle behind the vehicle which was blocking portion of Wilson Road or to go very slowly around it, so as to avoid the possibility of a collision with anybody exiting the access road;
(e)by continuing on towards the access road, on, or partially on the incorrect side of the roadway, and at more or less the same speed as he had been travelling, the respondent did not have his vehicle sufficiently in hand to avoid a collision with the appellant's cycle when it came out of the access road.
In addition to these factors, the respondent knew that, because he was towing a trailer, he had to be more careful than usual in the manner of his driving. He appreciated that with the load he was carrying on the utility he could not make a quick manoeuvre. In particular, he could not brake suddenly. If he did so, the load of steel bars strapped to the utility would turn into 'flying projectiles'. All of these factors accentuated the need for the respondent to take special care in the manner in which he approached the junction of Wilson road and the access road.

In my opinion, the respondent was negligent as alleged in particulars 4.1 and 4.2 of the particulars of negligence. The conclusion of the commissioner that there was no negligence on the part of the respondent was in error and must be reversed.

Contributory negligence

In his pleadings at the trial, the respondent contended that the accident was solely caused, or contributed to, by the negligence of the appellant. The following particulars were given:
The plaintiff was negligent in that he:
(a)failed to yield right of way to the vehicle driven by the defendant as he ought to have done when proceeding onto Wilson Street towards its T‑junction with a subsidiary roadway, contrary to sub‑section 56.1 of the Road Traffic Code 2000;
(b)failed to observe or heed the approach of the vehicle driven by the defendant;
(c)failed to apply the brakes on his bicycle or to swerve, steer or otherwise to avoid colliding with the vehicle driven by the defendant;
(d)drove his bicycle at a speed which was excessive in the circumstances;
(e)failed to ensure that the way was clear for him to make a right turn onto Wilson Street;
(f)drove directly across the path of the vehicle driven by the defendant which had right‑of‑way.
An assessment of contributory negligence requires a just and equitable apportionment as between the appellant and the respondent for the damage which was caused by the collision. This is made clear in Pennington v Norris (1956) 96 CLR 10, 16 (Dixon CJ, Fullagar and Kitto JJ):
What has to be done is to arrive at a 'just and equitable' apportionment as between the plaintiff and the defendant of the 'responsibility' for the damage. It seems clear that this must of necessity involve a comparison of culpability. By 'culpability' we do not mean moral blameworthiness but degree of departure from the standard of care of the reasonable man. To institute a comparison in respect of blameworthiness in such a case as the present seems more or less impracticable, because, while the defendant's negligence is a breach of duty owed to other persons and therefore blameworthy, the plaintiff's 'contributory' negligence is not a breach of any duty at all, and it is difficult to impute 'moral' blame to one who is careless merely of his own safety.
In the present case, the appellant did fail to take reasonable care for his own safety. There is no acceptable evidence as to the speed at which

he was travelling. The only numerical estimate of the speed at which the cycle was travelling was that given by the respondent, who estimated the speed at 'probably about 30 kilometres an hour, maybe 35'. Given the period of time that the respondent had to see the appellant, no weight could be attributed to that estimate. One independent witness estimated that the speed of the appellant was very fast. Another was unable to make an estimate, but said that the appellant's turn was a normal one.

The appellant's real failure to take care for his own safety was that he exited the access road into Wilson Road at a time when the respondent's vehicle was approaching and close to him. He said that he looked to the right and saw nothing coming, but had he kept a proper lookout he would have seen the respondent's vehicle. According to the respondent, it had its headlights on. A proper lookout would have made it clear to the appellant that his view of Wilson Road was such that part of the road, to his right, was obscured. He could then have either stopped altogether, or turned out more slowly and cautiously.
Photographs of the corner show that there are substantial trees on the corner around which the appellant had to look. Further, if there was banked‑up traffic there, his vision must have been partly obscured. This made it incumbent on him to take steps to ensure that nothing was coming.
In the circumstances of the case, I consider that the negligence of each of the respondent and the appellant was equal. I would apportion liability 50/50.
I would therefore allow the appeal, quash the decision of the commissioner to dismiss the appellant's claim and substitute for that conclusion a finding that the appellant should recover 50% of his damages as agreed. There should be liberty to apply in relation to the question of damages.
NEWNES AJA: I agree with Miller JA.