Williams v Chesterman

[1992] QCA 275

[1992] QCA 275

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

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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

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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

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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.

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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

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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.

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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.

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