Waddington v Richardson and FAI General Insurance Co Ltd

[1995] QCA 168

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 159 of 1994

Brisbane

[Waddington v. Richardson and FAI General Insurance Co. Ltd.]

BETWEEN:
  MARK JOHN WADDINGTON
  (Plaintiff)  Appellant

AND:
  MEGAN JANE RICHARDSON
  (Defendant)

AND:
  FAI GENERAL INSURANCE COMPANY LIMITED
  (Defendant by Election)  Respondent

Fitzgerald P.
  Davies J.A.
  McPherson J.A.

Judgment delivered 12/05/1995

Judgment of the Court

APPEAL ALLOWED;  JUDGMENT BELOW SET ASIDE AND A NEW TRIAL ORDERED.  THE RESPONDENT IS TO PAY THE APPELLANT'S COSTS OF THE APPEAL.  THE RESPONDENT GRANTED A CERTIFICATE UNDER THE APPEAL COSTS FUND ACT.

CATCHWORDS:     PERSONAL INJURIES - MOTOR VEHICLE COLLISION;  apportionment of negligence and assessment of damages;  whether trial Judge's findings of fact were satisfactory.

Counsel:  Mr. R. Trotter for the appellant
  Mr. P. Munro for the respondent

Solicitors:        Richardson McGhie for the appellant
  Bradley & Co. for the respondent

Hearing Date:   6 April 1995
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 159 of 1994

Brisbane

Before  Fitzgerald P.
  Davies J.A.
  McPherson J.A.

[Waddington v. Richardson and FAI General Insurance Co. Ltd.]

BETWEEN:
  MARK JOHN WADDINGTON
  (Plaintiff)  Appellant

AND:
  MEGAN JANE RICHARDSON
  (Defendant)

AND:
  FAI GENERAL INSURANCE COMPANY LIMITED
  (Defendant by Election)  Respondent

REASONS FOR JUDGMENT - THE COURT
  Judgment delivered the 12th day of May 1995

This is an appeal against a judgment given in the District Court for $16,447.55 with costs.  The appellant was the plaintiff in the District Court action which was one for personal injuries arising out of a motor vehicle collision which occurred at the intersection of Wickham Terrace, Leichhardt Street and North Street Spring Hill.  The learned Trial Judge found the plaintiff two-thirds to blame for his own injuries.  The appeal is against the apportionment of negligence made by the Trial Judge and also against his assessment of damages.
           The intersection where the accident occurred is one which is, in effect, constituted by two streets intersecting approximately at right angles.  It is controlled by traffic lights.  Leichhardt Street approaches the intersection from the east.  One arm of Wickham Terrace approaches it from the west.
Another arm of Wickham Terrace approaches it from the south and North Street approaches it from the north.
           The plaintiff was approaching the intersection on that arm of Wickham Terrace which came from the west.  The defendant was approaching it on that arm of Wickham Terrace which came from the south.  Each claimed to have the benefit of a green light when he or she came onto the intersection.  It was not suggested that the traffic lights were other than in proper working condition so plainly both could not have been right.  It is possible, of course, that neither did.  Indeed it is possible that both had red lights facing them, there being an interval of time at this, and probably all such intersections, between the time when a red light, following a yellow one, comes on facing traffic in one direction and that when a green light, following a red one, comes on facing traffic travelling at right angles to that direction.
           The learned Trial Judge's apportionment of negligence is difficult to reconcile with either the plaintiff or the defendant having the benefit of a green light when he or she came onto the intersection.  Indeed the defendant/respondent has cross-appealed on the basis that if, as she contends, the learned Trial Judge found that she had a green light facing her as she came onto the intersection, his Honour should have found the appellant/plaintiff wholly to blame for his own injuries.
           The learned Trial Judge's findings of fact in this respect are difficult to comprehend.  Before going to them it is necessary to say something about the competing versions of what occurred.
           The plaintiff's version was that as he approached the intersection the traffic lights facing him changed from red to green when he was about 20 - 25 metres back from them.  There were some vehicles in front of him, facing in the same direction as his but stopped at the lights in the lane for vehicles intending to turn right.  He then proceeded onto the intersection and the accident happened very quickly.  When he was lying on the ground after the accident, he said, he heard a female voice inquiring whether he was alright.  He took that to be the driver of the other vehicle.  He then said:  "She ran a red light."  And she said:  "I thought I could make it."
           The defendant said that as she approached the intersection the traffic lights facing her were green.  She observed traffic stationary at the intersection in the western arm of Wickham Terrace, that is in the direction from which the plaintiff came.  She thought there were stationary vehicles in all three lanes coming from that direction.  When she was about half way across the intersection, she said, the traffic lights changed to amber.  The plaintiff's motor cycle, which she observed only shortly before impact, was travelling in the kerb side lane, which caused her to reassess her earlier evidence that there was stationary traffic in all three lanes.  The plaintiff's motor cycle then collided with the passenger's side of the defendant's car.  She denied at any stage saying words to the effect:  "I thought I could make it".  In cross-examination she said that she could not recall telling the police officer that, when she reached the stop line on the approach to the intersection the traffic light facing her changed from green to amber.  She admitted being late for work.
           There was an independent witness to the accident, a Mr. Venz, who was the driver of one of the vehicles, identified by both parties, as being stationary at the traffic lights in the western arm of Wickham Terrace.  He was waiting to turn right into the southern arm of Wickham Terrace.  He said that when the plaintiff rode onto the intersection the light facing him and Mr. Venz was red;  and that it turned green two to five seconds after the collision.
           The learned Trial Judge accepted the evidence of Mr. Venz that the traffic light facing the plaintiff changed from red to green two to five seconds after the collision.  That must mean that the plaintiff came onto the intersection against a red light.  His Honour said that this was consistent with the defendant's statement to the police to the effect that as she drove onto the intersection the amber light in her direction replaced the green.
           His Honour also found that the conversation referred to above, deposed to by the plaintiff, occurred.  If that conversation did occur it is difficult to escape the conclusion that that constituted an admission by the defendant that she "ran a red light".
           There were a number of possible findings which the Trial Judge could have made on the evidence of the witnesses to which we have referred.  His acceptance of the evidence of Mr. Venz that the green light facing the plaintiff's line of travel changed from red two to five seconds after the collision seems to require a conclusion that, when the defendant entered the intersection, the traffic light facing her was either still green or had just turned to yellow.  If that was the factual conclusion it is difficult to see how there could have been any negligence on the part of the defendant which caused the collision.
           On the other hand his Honour's acceptance of the plaintiff's evidence as to the conversation set out above appears to be consistent only with an admission by the defendant that when she entered the intersection the light facing her was red.  There are two alternatives consistent with such an admission.  The first is that the light facing the plaintiff was also red when the collision occurred, in which case one can see a basis for apportionment.  The second is that, at that time, the light facing the plaintiff was green.  On the first of these alternatives the evidence of Mr. Venz that the plaintiff proceeded onto the intersection against a red light could be accepted but his estimate as to when the light facing him turned green would have to be rejected.  On the second alternative Mr. Venz' evidence would have to be rejected entirely.
           It is possible to speculate that, from his acceptance of Mr. Venz' evidence and his acceptance of the plaintiff's evidence that the above conversation took place, his Honour was accepting the first of the alternative hypotheses stated above;  that is that both parties entered the intersection when the lights facing them were red.  But that seems an unlikely hypothesis and is not consistent with the evidence of any one witness.  Indeed it involves the rejection of all or part of the evidence of all three eye witnesses;  the plaintiff, the defendant and Mr. Venz.
           The difficulty facing this Court is that the learned Trial Judge has failed to make clear the basis upon which he reached the conclusion which he did.  Indeed, as we have pointed out, the only conclusion consistent with an apportionment such as the one he made is inconsistent with at least part of the evidence of all eye witnesses.  It is also inconsistent with part of the evidence which he said expressly that he accepted.  The only course open in the circumstances, unappealing though it is, is to order a re-trial.
           This Court has previously commented on numerous occasions upon the needless expense caused to litigants by the failure of a judge to give adequate reasons for his or her conclusion.  This is another case in which that failure has caused unnecessary costs to be incurred.
           A similar difficulty arises with respect to his Honour's rejection of the plaintiff's claim for loss of future earning capacity.  His Honour awarded the plaintiff the sum claimed for loss of earning capacity from the date of the accident up to the date of trial.  Given the conclusion implicit in that assessment that the plaintiff's loss of earning capacity continued up to the date of trial it is difficult to understand on what basis his Honour could also have concluded that there was no loss of earning capacity thereafter.  Mr. Munro, who appeared for the respondent before this Court, conceded quite properly that the two conclusions were difficult to reconcile.  No basis appears in his Honour's reasons for reconciling these conclusions.
           The appellant's notice of appeal sought in the alternative a new trial and, during the course of argument, Mr. R. Trotter for the appellant sought and was granted leave to add to his grounds of appeal a ground that the learned Trial Judge erred in law in failing to give adequate reasons.  For the reasons already referred to, that on neither liability nor quantum of damages did his Honour give adequate reasons for his conclusion, the judgment below should be set aside and a new trial ordered.  The appellant should have his costs of the appeal but the respondent should have a certificate under the Appeal Costs Fund Act.