Zraika v Walsh (No. 2)
[2014] NSWSC 893
•25 June 2014
Supreme Court
New South Wales
Medium Neutral Citation: Zraika v Walsh (No. 2) [2014] NSWSC 893 Hearing dates: 23 - 25 June 2014 Decision date: 25 June 2014 Jurisdiction: Common Law Before: Campbell J Decision: I reject the application for a view.
Catchwords: EVIDENCE - view; application for - whether view appropriate Legislation Cited: Evidence Act 1995 (NSW), s 53 Category: Interlocutory applications Parties: Sharif Zraika by his tutor Hamila Zraika (plaintiff); Rebecca Jane Walsh (first defendant); Joseph Bernard Walsh (second defendant); Roads & Maritime Services (third defendant); Bankstown City Council (fourth defendant); Ali Zraika (fifth defendant) Representation: Counsel:
D Higgs SC with T Boyd (plaintiff);
K P Rewell SC (First and second defendant);
M Fordham SC with H Chiu (third defendant);
R S Sheldon SC with P M Knowles (fourth defendant);
G Smith (fifth defendant)
Solicitors: Kheir Lawyers (plaintiff);
McInnes Wilson Lawyers (first, second and fifth defendants)
Hicksons Lawyers (third defendant);
Mills Oakley, Lawyers (fourth defendant);
File Number(s): 2011/52630
ex tempore Judgment
The first defendant has renewed her application that a view pursuant to s 53 of the Evidence Act 1995 (NSW) be undertaken at the scene of the accident. The scene of the accident consists of a driveway from a commercial complex which opens on to the intersection of Woodville Road and Tangerine Street, Villawood.
The issues in the case include the appropriate positioning of a sign directing traffic to turn left only on exiting the complex from the driveway. It seems to me on my reading of the joint report of the traffic experts who will be giving evidence tomorrow that all agree that the sign is in an appropriate place for directing exiting traffic from the driveway, although some, if not all of them, would accept it could have been better positioned.
Mrs Meehan, who is the first defendant, says that she didn't see the sign. I infer, or perhaps I should say for present purposes, I assume given what she said about the care with which she attempted to cross the intersection that had she seen it she would have obeyed it. The issues include whether the RTA, as it then was, as the road authority on the one hand, and the Bankstown City Council as the authority who consented to this development in the exercise of its statutory powers, on the other, ought to have put the sign in the better position.
It's worth noting that the evidence shows that very soon after the event the RTA elected to install another left-turn-only sign in or on a median strip that was then at the driveway dividing the line of exiting from incoming traffic. There have been many changes to the driveway since the date of the accident; not just the erection of that sign but its subsequent removal; the removal of the median strip; and the painting of directional arrows on the apron of the driveway directing exiting traffic to turn left.
A subsidiary issue has arisen perhaps. Mrs Meehan gave evidence that she could not see the lanterns of the traffic lights when she was attempting to cross the intersection, and had to make a judgment based upon traffic movement in the intersection before entering in.
I think as a passing comment Mr Lysaught, who gave evidence this morning, expressed a view that exiting drivers could see the lanterns and make a judgment from their colour whether to enter the intersection or not.
I rather had the impression, as I have said during argument, that was something said "by the way" and I don't have any particular confidence in whether Mr Lysaught has actually satisfied himself that this is so or rather he was relying upon his experience of life about that.
It seems to me that I am being asked as the tribunal of fact to make an inspection of the scene of the accident to help me work out whether or not what Mrs Meehan says is acceptable. Moreover, under s 54 of the Act, the view will constitute real evidence entitling me to draw any reasonable inference from what I see, hear or otherwise notice during it in resolving the issues in the case.
It seems to me that, without in any way forestalling argument, or coming to any premature decision about the issues in the case, even if I formed the impression on the view that it was understandable that Mrs Meehan might have missed the sign in the circumstances, that I could not use that lay impression to reject the opinion of the experts in the field, if they adhere to it after cross-examination, that the sign is appropriately placed.
In those circumstances, I am not persuaded on the balance of convenience that it is appropriate for me to conduct the view; rather, the question of the location of a traffic management sign is a matter that should be determined by me on the basis of the expert evidence actually led in the case and that it would be wrong of me to succumb to a temptation to reject it on the basis of a lay opinion I had formed to the contrary on the view, if that were to happen. For those reasons, I reject the application for a view.
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Decision last updated: 02 July 2014
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