Williams v Chesterman

[1992] QCA 198

[1992] QCA 198

COURT OF APPEAL

MACROSSAN CJ
DAVIES JA
PINCUS JA

CA No 74 of 1992

BART WILLIAMS  Respondent (Plaintiff)

and

BRIAN ARTHUR CHESTERMAN  (Defendant)

and

FAI GENERAL INSURANCE COMPANY

LIMITED  Appellant (Defendant by Election)

BRISBANE

DATE 31/07/92

JUDGMENT

310792

PINCUS JA: This is an appeal against a judgment of the District Court in a motor accident case. The appellant is the defendant by election which complains of a finding of negligence given in favour of the respondent plaintiff.  The appellant submits that there should have been no finding of negligence against the defendant but did not, in the end, appear to press that point strongly.  The substantial argument was, perhaps, that the Judge was wrong in apportioning liability equally between the drivers of the two vehicles involved.

The accident in question happened in daylight at the intersection of Kedron Park Road with Felix Street, Wooloowin, Brisbane.  The former is a major road and the latter a minor one.  The two streets intersect, it appears from Exhibit 5, at an angle of 64 degrees.  The respondent was, shortly before the collision, travelling south along Kedron Park Road and he came into collision with a motor car, on the findings, at about the middle of Felix Street in the course of a right-hand turn on his motorcycle into that street.  The motor car was being driven by the defendant, a Mr Chesterman, who was not a party to the appeal.

According to the defendant’s case, the collision occurred some substantial distance into Felix Street, the respondent's motorcycle being then well on the wrong side of the road, but that view of the matter was rejected by the trial Judge.  His Honour's views were as follows.  The Judge found that the corner was a blind one in that there was a two-storey building at it, built right up to the building alignment; there was very little mutual visibility; the corner, His Honour thought, was a dangerous one, requiring a considerable amount of vigilance on the part of each motorist.

The defendant and the other occupants of his car said that the respondent cut the corner very sharply at a considerable speed and lost control of his motorcycle, producing a collision, as I have said, well back from the intersection.  The Judge described the respondent's manoeuvre as almost suicidal, on the defendant's case, which he regarded as somewhat improbable.  The respondent's evidence was that he turned to the right at a low rate of speed.

The Judge mentioned that the defendant thought his speed was about 20 kilometres per hour when he first saw the respondent and that the speed of the car was less than 10 kilometres per hour at impact.  The Judge pointed out that the defendant's wife initially said that the car was travelling at about 60 kilometres per hour, later 40 kilometres per hour, when she saw the motorcycle cut the corner; the car must then have been very close to this blind corner.  Mrs Chesterman said the car had begun to slow down and it was then three or four car lengths away from the intersection; the motorcycle, so Mrs Chesterman said, was travelling faster than the car.  The Judge relied to some extent on the evidence of Mrs Chesterman to support the respondent's case as to the car's speed.

The Judge found, contrary to the defendant’s case, that the plaintiff made his turn at a moderate rate of speed, but held that he did "to a slight extent" cut the corner.  His Honour was not inclined to accept either side's case as to the point of impact, but thought it was very much closer to the point indicated by the respondent than to that alleged by the defendant and his witnesses.  He held that the defendant failed to keep a proper lookout and travelled at a speed which was excessive in the circumstances, but that the respondent was guilty of contributory negligence in cutting the corner.  In general, he thought the respondent's evidence more reliable than that of the defendant and his witnesses.  His Honour, as I have said, apportioned liability equally.

There were features of the evidence which might have produced in the trial Judge some doubts as to the respondent's veracity, such as statements he made while in an injured condition after the accident.  However, His Honour accepted that the respondent tried to give his best recollection of events, as indeed, His Honour thought, did the other witnesses.  It is not suggested by Mr Hoare, counsel for the appellant, that the Judge mistook the evidence in any respect and at one stage I understood that the appellant accepted the Judge's basic findings of fact.  It appears, however, that this is not so and that the Court is invited to interfere with His Honour's findings on the Court's own analysis of the evidence.

It appears to me impossible to do so.  The case was one in which the Judge was not prepared to accept that either side described the collision accurately, but the Judge thought the respondent's version of events substantially more accurate than that of the defendant and his witnesses.  There was, as the Judge pointed out, no truly independent evidence fixing the point of impact - a critical question - and the fixation of that point could only depend upon the trial Judge's impression gained from the stories told by the four witnesses.  The appellant's argument referred to the Judge's failure precisely to fix the point of impact.  It does not appear to me that His Honour can properly be criticised on that account.  He did not believe it possible to fix the point exactly.  It was also argued for the appellant, that there was no evidence to justify the findings of negligence against the defendant.  That does not appear to me to be so.  There was certainly evidence given by the plaintiff from which an inference of poor lookout on the part of the defendant might be drawn and, as I have mentioned, Mrs Chesterman's evidence was able to be relied on in support of the view that the car was not being driven as cautiously as was, in the circumstances, appropriate.  Looking at the matter more broadly, once the Judge rejected the version of events put forward on behalf of the defendant, as it seems to me he was entitled to do, and reached the conclusion that the accident had happened close to where the respondent fixed it, it must have seemed inevitable that there should be a finding of negligence against the defendant.  That is so because, on the defendant's own case, the motorcycle was not observed until very shortly before the collision, at which time the car was apparently still travelling at a substantial speed; one would have expected the car to be so driven that a motorcycle making a fairly orthodox turn, as the respondent's motorcycle was, on the findings, would not be endangered by the car's approach.

In my opinion, the case is not one in which the Court is entitled to take the unusual course of interfering with findings of fact based upon the Judge's view of the respective credibility of witnesses attempting to describe events of a few seconds.  I am far from satisfied that His Honour's judgment was erroneous and the appeal should, in my opinion, be dismissed.

THE CHIEF JUSTICE: I agree.

DAVIES JA: I agree.

THE CHIEF JUSTICE: The appeal is dismissed.  You asked for costs, Mr Myers?

MR MYERS: Yes, I did.  May it please the Court.

THE CHIEF JUSTICE: The appeal will be dismissed with costs.