ISHERWOOD v. FLAVIN [2000] NSWCA 232

COUNSEL : P.R. Garling SC (Appellant/Opponent) B.H.K. Donovan QC (Respondent/Claimant) SOLICITORS : Hunt & Hunt (Appellant/Opponent) Stern & Tanner (Bondi Junction) (Respondent/Claimant) CATCHWORDS : NEGLIGENCE - Road accident case - Plaintiff's vehicle in process of making right-hand turn into another street - Plaintiff's vehicle struck by defendant's vehicle travelling in opposite direction in street from which plaintiff's vehicle turning - Whether defendant negligent - Whether plaintiff guilty of contributory negligence - Apportionment of liability D DECISION : Reasons for Judgment delivered. (By Majority); Orders as proposed by Fitzgerald JA (see paras. 51-53)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40318/99 DC 6385/97 MASON P POWELL JA FITZGERALD JA

2 POWELL JA: There were listed together an appeal from a Judgment delivered, and verdict found, by Boland A-DCJ in the District Court on 18 December 1998 and an application for leave to cross-appeal out of time in respect of that Judgment and verdict. In the appeal the Appellant, who was the Defendant at first instance, sought, first, to have the verdict against him set aside and in lieu thereof a verdict found in his favour; or, alternatively, to have the apportionment of liability between himself and the Respondent which had been made by Boland A-DCJ following her finding that the Respondent had been guilty of contributory negligence altered in such a way as substantially to reduce the amount of the verdict which had been found in favour of the Respondent. The basis upon which the Respondent sought leave to cross-appeal out of time was that, after Boland A-DCJ had delivered judgment - in which Judgment, rightly regarding herself as bound by the Judgment of this Court in Burnicle v. Cutelli [1], her Honour rejected the claim which had been made by the Respondent - which claim was based on the Judgment of the High Court in Griffiths v. Kerkemeyer[2] - for the cost of providing to the Respondent domestic assistance to care for children - this Court delivered its Judgment in Sullivan v. Gordon [3] in which it held that a person who has lost the capacity to care for a child or children is, in an appropriate case, to be compensated on the same basis as a traditional Griffith v. Kerkemeyer claim. 3 As the Respondent's Notice of Motion had been filed only shortly before the date fixed for the hearing of the appeal; as the appeal books which had been prepared did not contain the materials which were relevant to the cross-appeal if leave to cross-appeal were granted; as the Appellant, although content to argue the question whether leave to cross-appeal should be granted was not in a position then to argue the merits of the cross-appeal; and as, in any event, the Appellant wished to submit that, in the event of leave being granted and of the cross-appeal being upheld, the appropriate order would be to direct a new trial limited to damages; the Court directed that the Motion stand adjourned so that it might be dealt with in a proper way concurrently with any appeal which would follow the grant of leave (T. 57). 4 Although it has no bearing on the fate of the questions debated on the hearing of the appeal, I record that, after the conclusion of the hearing of the appeal, Mason P granted the Appellant leave to amend his Notice of Appeal so as, in the event that leave to cross-appeal be granted, and the Respondent's claim for future care for her children be allowed pursuant to the Cross-Appeal, it would be open to the Appellant on any new trial limited to damages to raise the matters referred to in the grounds which were added to the Respondent's original Notice of Appeal. 5 The Respondent's claim for damages arose out of a motor vehicle accident which occurred on 17 May 1994 when the Leyland Mini motor vehicle, Registration No. SJW918, which the Respondent had driven in a North-Westerly direction from her home in Guinea Street, Kogarah and was in the process of making a right-hand turn from Guinea Street into Kitchener Street, Kogarah, was struck by a 1974 model Holden HQ Kingswood sedan, Registration No. KGU 380, then being driven by the Appellant in a South-Easterly direction in Guinea Street. In the collision, the front off-side of the Appellant's motor vehicle struck the front near-side of the Respondent's motor vehicle. As a result of the collision the Respondent's vehicle was rotated in a clockwise direction through 180 degrees and came to rest approximately in the centre of the carriageway of Guinea Street and at a point about 10 to 15 metres South-East of the point of impact while the Appellant's vehicle swerved to its left and partly mounted the kerb on the North-Eastern side of Guinea Street about 10 metres to the South of the point of impact. The point of impact was measured by Constable A. Butler, who was stationed at Kogarah Police Station and who attended the scene of the accident, as being 3½ metres West of the Eastern kerb of Guinea Street and 1 metre North of the Southern kerb of Kitchener Street (Blue AB 53, 58). 6 As the result of the collision, the Respondent suffered significant injuries of which, for present purposes, one need only note a closed head injury involving a dissection of the left internal carotid artery with distil embolisation resulting in a middle cerebral artery infarct. In consequence of that injury the Respondent developed a dense right hemiparesis and a wide variety of cerebral deficits including agnosia, aphasia, apraxia, expressive dysphasia and diminution of higher intellectual functioning. 7 Although others came upon the scene shortly after the collision, the only witnesses to what occurred leading up to the collision were the Appellant and the Respondent and, as a result of the Respondent's injuries, the evidence which she was able to give - which evidence needed to be taken in short periods spread over three days - was rather less than might otherwise have been the case. The evidence of the Appellant and the Respondent was supplemented by the evidence of the Respondent's husband who came on the scene a few minutes after the collision, the evidence of the Appellant's father who attended the scene later that day and on the following day and made certain measurements and prepared a sketch of the scene of the accident, and the evidence of two engineers, Mr. Bailey, who was called on behalf of the Respondent, and Mr. Jamieson who was called on behalf of the Appellant, each of whom, on the basis of materials which had been placed before him prepared a report or reports containing calculations directed towards establishing what had occurred in the moments leading up to the collision. One of the difficulties one has in assessing the evidence, in particular, of Mr. Bailey and Mr. Jamieson is that there appears no unanimity between them as to the dimensions of the carriageway of Guinea Street and Kitchener Street, while another of the difficulties which one has in dealing with the evidence of Mr. Bailey and Mr. Jamieson is that, in the various calculations which they have made, they have adopted differing methodologies. 8 With that preface, it is necessary now to give some of the background facts before proceeding to deal with the evidence as to what occurred on the day of the collision. 9 As I have previously indicated, Guinea Street, in which, at the time of the collision, the Respondent then lived, runs in a direction from roughly South-East to North-West. The photographs comprising Exhibit D (Blue AB 4-9) and those incorporated in Mr. Jamieson's report of 28 June 1996 (Exhibit 4 - Blue AB 63-89) indicate that Guinea Street is inclined uphill from the South-East to the North-West. Guinea Street is met on both its Eastern and Western sides by parts of Kitchener Street. However, the two parts of Kitchener Street do not form a conventional intersection with Guinea Street, as the carriageway in Kitchener Street on the Eastern side of Guinea Street is located about 16-17 metres to the South-East of the carriageway in Kitchener Street on the Western side of Guinea Street. It is difficult to be certain as to the correct dimensions of each of Guinea Street and Kitchener Street. If one can accept as correct the scaled plans appearing in Mr. Bailey's reports (see, for example, Blue AB 31) the road reserve in each of Guinea Street and Kitchener Street appears to be approximately 18 metres in width, the carriageway being approximately 11.4 metres in width. In his report (Blue AB 68) Mr. Jamieson says that Guinea Street is "approximately 9.5 metres between the kerbs". In a plan (Exhibit 1 - Blue AB 62) drawn by the Appellant's father on the day following the collision, Kitchener Street is depicted as having a width between the kerbs of 12 metres. 10 As I have indicated, the point of impact recorded by Constable Butler was 3.5 metres to the West of the Eastern kerb of Guinea Street and 1.5 metres to the North of the Southern kerb of Kitchener Street. The home in which, at the time of the collision the Respondent lived was located on the Eastern side of Guinea Street and about 70 metres to the South-East of the point of impact. About 70-80 metres to the North-West - that is, the direction from which the Appellant was driving - of the point of impact was a slight crest. A photograph, part of Exhibit D, taken at a point about 115 metres to the North-West of the point of impact (Blue AB 4, 8) - that is, beyond the crest to which I have just referred - would indicate that the view, at that point, which a driver proceeding South-East in Guinea Street would have of a vehicle travelling North West in Guinea Street and approaching that part of Kitchener Street to the East of Guinea Street would be partly obscured. 11 On the day of the collision, the Respondent, who was then aged 24 years, and who held the degree of Bachelor of Nursing and held a Diploma in Applied Science Health Information, left her home at approximately 7.30 a.m. with a view to driving to the Masonic Hospital at Ashfield where she was employed as the Librarian and Administrator of Medical Records. It was the Respondent's intention to drive to Ashfield in the Leyland Mini to which I have earlier referred, which vehicle was owned by her husband. 12 The vehicle was said (Black AB 10) then to have been about 16-18 years of age and had been owned by the Respondent's husband for about 18 months previously. In the course of his evidence in chief, Mr. Flavin gave the following evidence (Black AB 10): "Q. And about how often have you driven it yourself? A. Four or five times a week. Q. Had you driven it during colder months such as May? A. Yes sir. Q. And had you driven it in the early morning, say 7-7.30? A. Yes sir. Q. When you had driven it, what did you have to do to get it started? A. The choke had to be taken all the way out; the key turned; care taken not to flood the engine; once the engine did start, the choke was put back in a little. I normally then turned on the car wireless and listened to a song or two, normally 5 or 6 minutes before driving off. If I failed to do that the car would accelerate very poorly and often stall. Q. Now after the 5 or 6 minutes when you drove off, in what position did you put the clutch - clutch I'm sorry - the choke? A. The choke would normally be about half way when I would start and over the following, depending on the conditions, maybe a kilometre or two, the choke would be returned all the way in. Q. And what did you observe about the car - let us say on the first block after you'd driven away, after you drove away? In terms of ability to accelerate? A. Sluggish would be a fair description."

(The "first block" to the North on the Eastern side of Guinea Street would take one to the intersection with Kitchener Street.) 13 Although the evidence does not demonstrate that this was so it is at least likely that the route which the Respondent would take when she drove to work would take her across country from Kogarah through Bexley to Campsie thence along Canterbury Road before turning off that road to reach the hospital. 14 On the day of the collision, the Leyland Mini was parked on the Eastern side of Guinea Street outside the Respondent's home and facing in a South-Easterly direction. The weather was fine, the day was sunny, albeit cold. The effect of the Respondent's evidence (see Black AB 5 et seq, 23 et seq) was, that after she had unlocked the vehicle and seated herself, she pulled the choke out to its full extent and started the motor and let it idle for about 5 minutes, following which she returned the choke halfway. Having done so, the Respondent then activated her right traffic indicator and proceeded to do a U-turn in Guinea Street with a view to driving up the incline in the direction of Kitchener Street with a view to turning right into Kitchener Street - the extract from the road map (Blue AB 67) which is included in Mr. Jamieson's report of 28 June 1996 indicates that Kitchener Street leads to Queen Victoria Street on the East, which latter street appears as if it may be an alternative traffic route for vehicles travelling in a North-Westerly direction to Bexley and other suburbs to the North-West. 15 It is convenient to pause, here, for the purpose of recording the relevant portions of Regulation 71 of the Motor Traffic Regulations 1935 as they were in May 1994 - the version of the Regulation given by Boland A-DCJ in her Judgment (RAB 52-53) is incorrect. The Regulation as it was in 1994, so far as is relevant, was as follows: "RIGHT-HAND TURN AT INTERSECTION 71.(1) Where the driver of a motor vehicle is about to turn it to his right at an intersection he shall: (a) so drive it that when it reaches the intersection: (i) it will be as near as practicable to, but on his left-hand side of, the centre line of the carriageway of the street he is leaving or, if that street is a one-way traffic street, as near as practicable to that boundary of the carriageway thereof which is on his right-hand side; ……… (b) in every case, if when he enters the intersection there is upon or near it any vehicle or any animal in the charge of any person which has approached from the opposite direction and with which his vehicle if it so turned might collide, cause his vehicle to stand until it may turn with safety. ……… (2) Where the driver of a motor vehicle turns into his right at an intersection he shall so drive it that: (a) … it turns in that portion of the intersection which is immediately to his right-hand side of the centre thereof; (b) … (i) it leaves the intersection as near as practicable to, but on his left-hand side of, the centre line of the carriageway of the street he has entered or, if that street is a one way traffic street, as near as practicable to that boundary of the carriageway thereof which is on his right-hand side; ……… (d) In all the circumstances he takes adequate precautions to avoid danger of his vehicle colliding with any pedestrian who or vehicle or animal in the charge of any person which may be upon or near any portion of the intersection. ………"

16 The Respondent's evidence (Black AB 6) was that, as she drove up the incline in Guinea Street in the direction of Kitchener Street, she was proceeding at about 5 kph. The Respondent's evidence further (Black AB 7) was to the effect that, as she approached Kitchener Street, and, further (Black AB 8), that, before she commenced to turn into Kitchener Street, she did not see any other cars. Despite the point of impact which had been determined by Constable Butler - which point of impact (see, for example, Blue AB 31) would indicate that the Respondent had commenced her turn before reaching the prolongation of the Southern kerb in the Eastern side of Kitchener Street and, thus, was "cutting the corner" - the plan (Exhibit "F3" - Blue AB 12) which, during the course of her evidence in chief, the Respondent drew for the purpose of illustrating where she commenced to make her turn depicted the Respondent not commencing to make her turn until she had passed the centre of the carriageway in Kitchener Street on the Eastern side of Guinea Street. The Respondent's evidence (Black AB 8) was that she had no recollection of what occurred after she had commenced to make her turn into Kitchener Street. 17 At the time of the collision, the Appellant lived in Griffin Avenue, Bexley which is in close proximity to Guinea Street. 18 The Appellant's evidence (Black AB 238-239) was that on that day he left home with a view to driving his young son "to Playgroup", which was apparently located in Ocean Street, Kogarah - Ocean Street is on the Southern side of the Illawarra railway line and almost opposite the South Eastern end of Guinea Street where it meets Railway Street which is on the Northern side of the Illawarra railway line. It was the Appellant's intention, when he had left his young son at "the Playgroup" then to proceed to the premises of an organisation described as "Multiplan Company" - which seems to have been a family company controlled by the Appellant's father, and by which company the Appellant was then employed in some capacity - which premises appear to have been nearby in Kogarah. 19 As I have previously recorded, the Appellant's vehicle was a 1974 model Holden HQ Kingswood sedan. It was equipped with a five litre V8 motor with a three forward speed automatic transmission, operated by what was described as a "T-tree" - which appears to have been a gear shift mounted on the steering column (Combined AB 242) - a sketch drawn by Mr. Bailey during the course of his giving evidence (Exhibit "H" - Blue AB 52) depicts the T-tree having six positions, they being, from right to left, "Park", "Reverse", "Neutral", "Drive" - that is the highest gear - "Slow" - that is the intermediate gear - and "Low" - that is the lowest or furthest gear (Black AB 82). 20 The Appellant's evidence was that, after he left his home in Griffin Avenue, he turned left into to Warialda Street and then turned right into Guinea Street. If the extract from the road map which is included in Mr. Jamieson's report of 28 June 1996 (Blue AB 67) is any guide and if the distance from the Respondent's then home to the point of impact were of the order of 70 metres, then the distance from the intersection of Warialda Street and Guinea Street to the point of impact would appear to have been of the order of 200 metres, the first hundred metres or so would appear to have been up an incline to the slight crest to the North West of Kitchener Street to which I have earlier referred. 21 The Appellant's evidence (Black AB 240) was that, as he drove South-East in Guinea Street, he did not see any vehicle coming in the other direction. Quite when it was that the Appellant saw the Respondent's vehicle is open to considerable doubt. At first, he said that "it was the peak of the hill … as (he) got over the peak of the hill, (he) did notice there was a car coming …" - I take "the peak of the hill" to be the slight crest to which I have earlier referred which crest, as I have already indicated, was about 70-80 metres to the North-East of the point of impact. Later (Black AB 241), the Appellant said that he noticed the Respondent's vehicle coming up the hill as he reached the nearest kerb in that part Kitchener Street to the West of Guinea Street - that point would appear to be about 30 metres to the North-West of the point of impact. The Appellant's evidence was that, when he first saw the Respondent's vehicle it was driving in a straight direction and that it did not have its traffic indicator on but that "once … (he) was on top of Kitchener Street on the (Eastern) side, then (he) noticed a dramatic change in its turning" (Black AB 241) - in that event, he would have been beyond the Northern kerb of Kitchener Street on the Eastern side of Guinea Street when he first noticed the Respondent's vehicle move (Black AB 242) - what I have recorded earlier as to the dimensions of both Guinea Street and Kitchener Street would indicate that the Northern kerb of Kitchener Street on the Eastern side of Guinea Street was only about 10 metres to the North of the point of impact. The Appellant's evidence (Black AB 242) was that, having observed the Respondent's vehicle move, he applied his brakes instantly, operated the gear shift to low gear - those actions, so he said, took but seconds - and that he might have slowly turned his wheel towards the left-hand side (Black AB 242) but to no avail as all four wheels locked up putting the car into a slide. The Appellant's evidence was also that his vehicle had reached a point at about half-way across the carriageway of that part of Kitchener Street to the East of Guinea Street when the wheels locked up - in light of the Appellant's evidence (Black AB 241) that at the time he first saw the Respondent's vehicle he was travelling at "60 and under" - at which speed the Defendant's vehicle would have been travelling at approximately 16 metres per second, and given that, at the foot of page 92 in his Police Notebook (Blue AB 53), Constable Butler depicted skid marks from the Appellant's vehicle and at the top of page 93 of his notebook (Blue AB 59) wrote "skid marks 17 m" the Appellant's evidence as to when he saw the Respondent's vehicle commence to move and when he applied his brakes appears to be unacceptable. One adds that although it would appear that, at the trial, it was suggested that the reference in Constable Butler's Police Notebook to the skid marks do not form a part of his notes of the accident, the P4 Traffic Collision Report (Blue AB 58) has a sketch plan showing a dotted line commencing before the left-hand intersection of Guinea and Kitchener Streets drawn in a straight continuous line to the point of rest of the Appellant's vehicle. 22 As I have previously recorded, on the hearing before Boland A-DCJ the evidence directed toward to the question of liability included the evidence of Mr. Bailey who was called on behalf of the Respondent, of the Appellant's father and of Mr. Jamieson who were called on behalf of the Appellant. 23 As the evidence of each of these three witnesses is, in my view, sufficiently summarised in the passage from Boland A-DCJ's Judgment in which she recorded her findings on liability, I do not propose to record that evidence in any detail in this Judgment. 24 The passage in her Honour's Judgment to which I have just referred was as follows (RAB 54-57): "Findings on liability I found Mrs. Flavin to be a frank and honest witness. She did not embellish her evidence and, notwithstanding her disabilities, provided a reliable account of her actions to the Court. I also accept Mr. Flavin as a witness of truth who conceded his emotional distress immediately after the accident, and who in other parts of his evidence conceded he had adopted an attitude which might be regarded as 'overprotective' of his wife. This is readily understandable given the serious nature of her injuries, and their on-going sequelae. Because of his natural anxiety following the accident and his great care and concern for Mrs. Flavin's welfare, I accept as a more accurate and reliable indication of the position of the motor vehicle's post-impact the diagrams set out in the Police Notebook and the P4 report rather than Mr. Flavin's diagram made many months after the accident. I accept as inherently probable that Mrs. Flavin was, by reason of the cold morning, and the age and mechanical condition of the Mini travelling at a slow speed. On this aspect I accept the evidence of both Mr. and Mrs. Flavin that the vehicle would be sluggish on first commencing to drive it up Guinea Street. I accept and prefer Mrs. Flavin's evidence to that of Mr. Isherwood. I do not accept that Mr. Isherwood could estimate the speed of his vehicle with the accuracy claimed (58-60 km/ph), nor do I accept his evidence that the Mini was travelling at an identical speed and accelerated into the corner. My findings in this respect are corroborated by the report of Mr. Bailey to the effect that the Mini could not have had sufficient friction to the ground to make a right hand turn at 60 km/hr, the maximum speed at which it could have made such a turn being approximately 41 km/hr. I accept Mrs. Flavin's evidence that she had indicated with her blinker a right hand turn, but this was not observed by Mr. Isherwood. I accept that the numerical calculations contained in Mr. Bailey's report based in part on the recorded skid marks (on page 93 of Constable Butler's Police Notebook) do provide corroboration of Mrs. Flavin's evidence and, on the balance of probabilities, it was more likely than not that Mr. Isherwood was exceeding the speed limit and travelling at over 70 km/hr. I also rely on Mr. Jamieson's evidence that the damage to the two vehicles, if the speed of Mrs. Flavin's vehicle was reduced from 35 km/hr, would indicate an increased speed in Mr. Isherwoods vehicle to be consistent with the physical damage sustained by the motor vehicles. The Police Notebook at page 89 states under an entry with Mr. Flavin's name 'At time stated to Const Blythe 'I couldn't see the window was foggy''. This information was not recorded in the P4 which recorded 'statement unable to be obtained due to serious injury'. I find no evidence of the windscreen being foggy. Mr. Isherwood said that he could see Mrs. Flavin clearly through the windscreen. Mrs. Flavin gave evidence that she had wiped the windscreen down with a towel prior to making her U-turn and Mr. Flavin said he could see clearly through the back window of the car immediately after the accident and it was not foggy. Mr. Isherwood Snr noted on his diagram 'sun was in Peter's eyes'. I have had regard to the Bureau of Meteorology Report (Exhibit 'S') and the evidence of Mr. Isherwood. While the sun may have played some minor contributing factor to this accident, I do not accept it as a significant causative factor. Skid marks were recorded on the P4, in the Police Notebook (Exhibit 'X') and by Mr. Isherwood Snr (Exhibit '1(a)'). Mr. Isherwood Snr's diagram drawn the day after the accident clearly indicates the left hand front of Mr. Isherwood's vehicle as mounting the curb (sic). He shows 4-5 metres forward after impact skid and similar length breaking point of impact skid. These skid marks were not measured, although Mr. Isherwood measured the width of Kitchener Street. The skid marks in his diagram drawn the day after the accident are not consistent with the skid marks shown on page 92 of the Police Officer's notebook which indicates skid marks commencing from a position adjacent to the kerb on Kitchener and Guinea Streets. This is consistent with the diagram in the P4 and I accept that contemporaneous diagram as a more accurate representation of the skid marks and the diagram prepared by Mr. Isherwood Snr, particularly as Mr. Isherwood conceded that there had been some movement of the debris on the road the day following the accident when he drew his diagram and that he did not measure the skid marks. I do not accept the proposition that the skidmarks shown in the P4 Exhibit 'X' were a combination of the skidmarks of both cars. I also reject the proposition put to Mr. Jamieson with which he agreed that page 93 of the Police Notebook may not refer to page 92. On the balance of probabilities, I find the only logical explanation for the entry 'skidmarks 17 M' on page 93 is to refer to the diagram on page 92. I find that Mr. Bailey's calculations provide a guideline, taking into account and accepting his assumptions and the degree of tolerance allowed by him, that Mr. Isherwood was driving in and was probably driving in excess of 70 km/hr. That speed was dangerous in the circumstances of a suburban street. I further find that Mr. Isherwood did not keep a proper look-out and failed to observe Mrs. Flavin's blinker, indicating that she was making a right hand turn. I further find that Mr. Isherwood further contributed to the collision by his action in changing down gear, thus preventing him from having two hands on the steering wheel to take evasive action, and I note that Mr. Bailey agreed with the proposition that the delay caused by this action was significant, and I accept his opinion."

25 As will be apparent from what Boland A-DCJ has written in this passage, she made three principal findings with respect of the Appellant they being:

1. that he drove at an excessive speed in the circumstances;

2. that he failed to keep a proper look-out and to observe the Respondent's traffic indicator; and

3. that at, or immediately prior to, the point of impact the Appellant changed down gear preventing him from taking evasive action.

The Appellant sought to challenge each of these findings. 26 The attack which is made upon the first of Boland A-DCJ's findings was directed entirely to the evidence given by Mr. Bailey and, in particular, the calculations contained in his report of 7 August 1996 (Exhibit 'K1'). In that report (Blue AB 32) Mr. Bailey wrote (inter alia) as follows: "(3) Using simply laws of physics and making the following conservative assumptions, the pre-impact speeds of the vehicles can be estimated. (i) Point of impact (per Police Report) at 3.5 m and 1.0 m from kerbs. (ii) Final positions of vehicles as indicated in Figure 8 based on advice from Plaintiff's husband and local residents who saw the Mini in position outside their residences. The assumed positions are consistent with Police records. (iii) Skid marks led from point of impact to the final position of the Plaintiff's sedan (as indicated in the Police P4 Report and consistent with damage to the left front of the Plaintiff's front wheel drive sedan). (iv) Skid marks led from point of impact to the final position of the Defendant's vehicle as indicated in the Police Notebook. (v) Total length of skid marks from the Defendant's vehicle was 17 metres. (vi) Gradient along Guinea Street was 5% downhill for southbound vehicles (based on site measurement). (vii) Co-efficient of friction between vehicle tyres and the sealed roadway at the time of the crash is assumed in the range of 0.65 to 0.75 giving an effective maximum co-efficient of braking force allowing for gradient µ= 0.60. (viii) Mass of Holden approximately 1400 kg and mass of Mini approximately 700 kg."

upon the basis of which "assumptions" Mr. Bailey calculated the minimum approach speed of the Appellant's vehicle at 70.9 km/hr. 27 The burden of the Appellant's attack upon Mr. Bailey's evidence was that, as to some of the "assumptions", they were based on material appearing in Constable Butler's Police Notebook, which material was not elaborated upon by oral evidence, and, as to others of the "assumptions", that they were based on materials which were not proved at the hearing. So far as the first of these attacks is concerned, it seems to me that it goes only to the weight to be attributed to what was recorded in Constable Butler's notebook as, the relevant parts of Constable Butler's notebook having been admitted into evidence, the provisions of s.69 of the Evidence Act 1995 rendered the facts recorded by Constable Butler in his notebook evidence of the facts so recorded. There was thus evidence which it was open to Boland A-DCJ, if so minded, to accept establishing the matters in (i), (iii)-(v) of the matters upon which Mr. Bailey relied. So far as the second basis of attack is concerned, Mr. Flavin gave evidence (Black AB 42-43) and in the course of giving that evidence prepared a diagram (Exhibit "H" - Blue AB 13) which when compared with the locality map (Exhibit "A" - Blue AB 3) enabled one to establish the location of the Respondent's vehicle when it had come to rest while the respective weights of the Appellant's and Respondent's vehicles which were used by Mr. Bailey were those which had been adopted by Mr. Jamieson in his report of 28 June 1996 (Exhibit "4" - Blue AB 63, 81, 88). There was thus material in evidence which it was open to Boland A-DCJ, if so minded, to accept upon which to base the assumptions made by Mr. Bailey in (ii), (viii). Similarly, the co-efficients of friction adopted by Mr. Bailey in (vii) appear to have been of the same order of those adopted by Mr. Jamieson in his report (Blue AB 89). I would therefore reject this attack on the first of Boland A-DCJ relevant findings. 28 Her Honour having held, as, in my view, it was open to her to do, that prior to the collision, the Appellant's vehicle was travelling at a speed of 70 kph - a speed that exceeded the permissible limit of 60 kph in a suburban street - her finding that the Appellant was driving at a speed which was excessive in the circumstances is unassailable. 29 The attacks which were made by the Appellant on the second of Boland A-DCJ's findings were four:

1. that the Respondent's evidence, insofar as it related to the right hand traffic indicator, was ambiguous and of a kind that could not safely be relied upon;

2. that the Appellant denied that the traffic indicator was on and was not cross-examined on that denial;

3. that, even it were assumed that the traffic indicator was on, it could not have had any causative role in the accident; and

4. that, if there were a failure to observe the traffic indicator, such failure played no role in the Appellant's response to the accident.

30 So far as the first of these attacks is concerned, the Appellant points to the fact that the subject of the traffic indicator was dealt with twice - but on each occasion only shortly - in the course of the Respondent's evidence in chief, the first occasion when the Appellant, dealing with what happened when she left her home, gave the following evidence (Black AB 5): "Q. You turned the key, is that what you're indicating? A. Yes. Q. Go on, I'll leave it to you. Do you want to write anything down, would that help? A. No, no. I had the - the key was in the - Q. Ignition lock? A. Yes and then the blinker was on and then start her up but 5 minutes after we wait, wait, wait because it was very cold, very very cold and it splutters if you just - it splutters if you're not doing it, all right yeah. What did I say?"

and the second occasion, after having made a sketch (Exhibit "F" - Blue AB 10) depicting a U-turn, when she gave the following further evidence (Black AB 6-7): "Q. And did you then proceed down towards Kitchener Street? A. Yes but very slowing because it was 5 kilometres was absolute maximum because it's very cold also - not cold its choke is not very good choke and it's just, you know, … (non transcribable) Q. As you proceeded down towards Kitchener Street in what position was the choke? A. About half way. Q. And as you proceeded towards Kitchener Street did you do anything in relation to a right hand turn? A. Yes. Q. What did you do? A. We had a blinker on … Q. You're indicating - your pointing over your right shoulder? A. Yeah and fine I couldn't see the driver, fine. ……… Q. You mentioned a little while ago the blinker? A. Yes. Q. As you approached the corner was the blinker on? A. Yes. ……… Q. As you proceeded towards Kitchener Street what was your intention? A. To go left-no right."

31 The Appellant's submission is that these pieces of evidence are less than clear, being consistent with the blinker being first put on prior to pulling out from the kerb when the car started and then staying on for the whole time; there is certainly no suggestion that the blinker went on immediately prior to the turn which the Respondent made, and, having regard to its vagueness, the evidence would not be adequate of itself upon which to base a finding in the particular circumstances of this case. 32 Quite apart from the fact that I do not perceive in the second of these pieces of evidence the vagueness suggested and the further fact, which I believe to be so notorious that the Court is entitled to take judicial notice of it, that traffic indicators are self-cancelling - that is, that they cease to operate once the turn is completed - it seems to me that any vagueness which might otherwise have been perceived in the Respondent's evidence is removed by the evidence given in the course of cross-examination which evidence was as follows (Black AB 68-69): "Q. The first thing you did when you started the car was to do a U-turn? A. Yes. Q. And then you're heading in the other direction along Guinea Street? A. Yes. Q. Well from the time you're heading in the other direction along Guinea Street, can be just describe in words for me everything you did until you started to turn right? A. Okay, we're going right just right, and then - we're going right and turn turning before the turning we have a blinker on, turning right, and then accident. ……… Q. Now where was it in Guinea Street, can you tell us, that you put your blinker on? A. About half - I mean it was - it was blinker on half - blinker on and then turn. Q. Would it be fair to say, and tell me if I'm wrong, that you put your blinder (sic) on just before you turned? A. Yes. Q. And you started to turn just immediately after putting your blinker on? A. Yes. Q. Are you sure you put your blinker on? A. Yes. Q. Is it possible you didn't and you are now confused about it? A. No. Q. Not possible? A. Not possible."

33 The second of the attacks on Boland A-DCJ's finding in this respect, in my opinion overstates the position, as the Appellant's "denial" must be read in its context which was as follows (Black AB 24-241): "Q. Now as you came along, about how far were you from the first kerb in Kitchener Street on the left when you saw the Mini? A. Probably at the intersection there where the other Kitchener Street backs onto there, where the centre piece runs that way, probably - probably 15 metres from the centre of that Guinea Street there, back towards the western side as I was coming, travelling. Q. Well as you were driving along Guinea? A. Yeah, that's right … Q. Yes. A. As I've, probably hit the first part of Kitchener Street I've noticed the Mini Minor coming up the hill? Q. Now you've hit the first part of Kitchener Street, are you talking about Kitchener on your left, or Kitchener on your right? A. Kitchener on my right. Q. And the first part do you mean the first kerb that you strike, the first corner that you strike? A. The point about there sir. Q. Yes, indicating your Honour the nearest kerb of the right hand of Kitchener Street on the right hand side. And at the time you first saw the Mini, in which direction was it heading? A. Westerly, opposite direction I was going. Q. In the opposite direction to you? A. That's correct. Q. And at the time you first saw it, did it have its indicator on? A. No. Q. And was it driving, how was it driving, in a straight direction or was it driving in anything other than a straight direction? A. At first notice it was driving in a straight direction. Q. That's when you first saw it, okay. And when you first saw it, what speed do you believe you were travelling? A. 60 and under. Q. And as you, after you first saw it, you continued in the direction you were travelling in? A. That's correct, yeah. Q. And did you notice something about the Mini in terms of what it did? A. At which point there sir. Q. Well as you were travelling along, did you notice that it did something at some stage? A. Well, once - once I say I was on top of Kitchener Street on the left hand side, then I noticed a dramatic change in its turning. Q. Let me just stop you there, you noticed a dramatic change in its turning, what do you mean by that, which direction did it start to turn? A. Right hand turn into Guinea Street …. Q. Into? A. Sorry, Kitchener Street."

34 If, when the Appellant first saw the Mini Minor, it was proceeding straight up Guinea Street and the Appellant's vehicle was at, or near, the Northern kerb of Kitchener Street on the Western side the probabilities are that, at that point of time, the two vehicles were some 40 metres apart. If, when the Appellant observed the Respondent's vehicle commence to turn, he was at, or beyond, the Northern kerb of the Eastern side of Kitchener Street, he would have travelled some 20 metres or a little more, which distance, at a speed of 70 kph would have been covered in a second. If, as Mr. Bailey calculated, the Respondent's vehicle before it commenced to turn was travelling at 35 kph, she would have travelled approximately 10 metres so that the two vehicles at that point would have been about 10 metres apart. Even if the Respondent had activated the traffic indicator shortly before commencing her turn the Appellant would have had little time to observe it before the collision. 35 The third and fourth attacks upon Boland A-DCJ's finding in this respect can, I believe, be dealt with together, and shortly. The burden of the Appellant's submission in this respect appears to be that her Honour's finding should be read as meaning that it was the Appellant's failure to observe the traffic indicator which constituted the Appellant's failure to keep a proper look out. On the contrary, it seems to me that her Honour's finding was a finding that he failed to keep a proper look out and, in particular, that he failed to observe the traffic indicator. There was, in my view, ample evidence which justified her Honour in finding that the Appellant failed to keep a proper look out. As I have earlier recorded, there was a crest in Guinea Street which was 70 to 80 metres - a distance which, if the Appellant's car was travelling at 70 kph would be covered in 4-5 seconds - to the North-West of the point of impact. If, at that point of time, the Respondent's vehicle were travelling at 35 kph the distance which that vehicle would travel in 4-5 seconds would be of the order of 35-40 metres, in which event, when the Appellant's vehicle was at the crest in Guinea Street, the two vehicles would have been between 105 and 120 metres apart and the view from the Appellant's vehicle would have been slightly downhill - 5% downhill for South bound vehicles - to the Respondent's vehicle. Despite this, and despite the fact that, apart from the Respondent's vehicle, there was no other vehicle travelling North in Guinea Street, the Appellant covered a distance of 50 metres or thereabouts before he even became aware of the Respondent's vehicle, a fact which, in my view, left him in a position which deprived him of the opportunity adequately to respond to the emergency which arose. 36 The attack on the third of Boland A-DCJ's findings in this respect, in my view, has more substance in it, but only because it seems to me that, by reason of the matters to which I have earlier referred, at the time he became aware that the Respondent's vehicle was in the process of turning, there was virtually no prospect of the Appellant taking any effective evasive action which would have avoided or even lessened the impact of the collision. 37 As I have previously recorded, at the time when the Appellant became aware that the Respondent's vehicle was turning the two vehicles were only about 10 metres apart, a distance which, at the Appellant's speed of 70 kph, would be covered in half a second. At that speed, any attempt to have made a sharp left-hand turn into Kitchener Street would have been highly dangerous and would, more likely than not, have led to the Appellant crashing his car. Mr. Bailey's report (Blue AB 37) would indicate that, even if the Appellant's vehicle had been travelling at only 60 kph, braking from that speed for half a second would only have reduced the Appellant's speed by about 10 kph, so that, unless it had been possible for the Appellant to steer his car to the right so as to pass onto the Respondent's side of the road - and at the Appellant's speed and in the available time that seems highly unlikely - a collision was virtually inevitable. It was, in my view, not what the Appellant then did, but what he earlier failed to do, which was a contributing factor to the collision. 38 I would therefore propose that, insofar as the Appellant seeks to have a verdict in his favour substituted for a verdict in favour of the Respondent, the appeal be dismissed. 39 I turn to the question of the Respondent's contributory negligence, it being noted that, both at trial and on the hearing of the appeal, the Respondent's counsel conceded that the Respondent had been guilty of contributory negligence. 40 When dealing with this question in her Judgment, Boland A-DCJ wrote (RAB 58): "I have regard to the findings of the High Court in Wynbergen v. Hoyts Corporation Pty. Limited (1997) 72 ALJR 65 where the Court held 'No doubt the making of the apportionment which the legislation requires involves comparison of the culpability of the parties, i.e. the degrees to which each has departed from a standard of what is reasonable, but that is not the only element to be considered. Regard must be had to the relative importance of the acts of the parties in causing the damage, and it is the whole of the conduct of each party in relation to the circumstances of the accident which must be the subject to comparative examination. See also Podrebersek v. Australian Iron and Steel (1985) ALJR 492 and Pennington v. Norris (1956-57) CLR 10. In this case, I find Mrs. Flavin failed to observe or take heed of the position of Mr. Isherwood's car approaching the intersection. Unlike the situation in Government Insurance Office (New South Wales) v. Montefiore (supra) there were no other vehicles or obstructions to block the view of either Mrs. Flavin or Mr. Isherwood. I find the primary cause the accident (sic) was Mr. Isherwood's speed and failure to take appropriate evasive action. I find Mrs. Flavin failed to observe the position of Mr. Isherwood on the roadway, underestimated his speed and commenced her right hand turn without due regard for the position of his vehicle or the speed at which his vehicle was travelling. I assess responsibility for the accident as to 70% to Mr. Isherwood and 30% to Mrs. Flavin."

41 The task which, in a case such as this was, is imposed upon a judge by the provisions of s.10(1) of the Law Reform (Miscellaneous Provisions) Act 1965 is to determine the extent to which the damages recoverable by a plaintiff "(should) be reduced to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage …". Clearly enough, that task involves the judge making a discretionary judgment - or as I prefer to call it, a value judgment - in respect of which an appellate court which is invited to alter the judgment at first instance must bear in mind the injunction of the High Court in Podrebersek v. Australian Iron and Steel[4]: "A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance of relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds.' British Fame (Owners) v. Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury: Zoukra v. Lowenstein [1958] VR 594."

42 Notwithstanding that injunction, I have concluded that the apportionment which was made by Boland A-DCJ was not one which was open to her on the evidence. Each of the Appellant and the Respondent failed to comply with the provisions of the Motor Traffic Regulations; each of them failed to keep a proper look out, in the case of the Appellant until it was too late to do anything effective to avoid or minimise the effect of the collision and, in the case of the Respondent to the extent that even though at the point where she commenced to make her turn the Appellant's vehicle was only about 30 metres from her own she did not see it; when the Respondent commenced to make her turn from Guinea Street into Kitchener Street there was not the slightest possibility - since, according to Mr. Jamieson, it takes some 2 seconds to make a right hand turn - that she could have completed that turn with safety; depending on what is the correct width to be attributed to the carriageway in Guinea Street, the front near-side of the Respondent's vehicle was between 1.25 metres (about 4 feet) - if the width of the carriageway was 9.5 metres - and 2.5 metres (about 8 feet) if the width of the carriageway were 12 metres - across what would be the imaginary centre line in Guinea Street. In these circumstances, so it seems to me, the Appellant and the Respondent were equally culpable so that the appropriate apportionment, in my view, was the Appellant 50% and the Respondent 50%. 43 For those reasons I would propose that, to the extent to which the Appellant seeks to have the apportionment made by Boland A-DCJ set aside, the appeal should be upheld and, subject to the fate of the Respondent's Notice of Motion for leave to appeal and the appeal, if leave be granted, the award of damages made by Boland A-DCJ reduced accordingly. 44 Having expressed those views, I would defer the making of final orders and defer the consideration of the question of the costs of the appeal until the fate of the Respondent's Notice of Motion and any consequent appeal has been determined.

45 FITZGERALD JA: Powell JA has set out the circumstances giving rise to this appeal in his comprehensive reasons for judgment. 46 I agree with his Honour's conclusion that the appellant is not entitled to a verdict in his favour for the reasons given by his Honour. 47 The remaining question is whether it is just and equitable that the judgment in favour of the respondent be reduced because of her admitted contributory negligence. The trial judge held that the respondent's damages should be reduced by 30%. Powell JA has explained why he considers that the reduction in the respondent's damages should be increased to 50%. 48 As his Honour has noted, it is established that the reduction in the damages recoverable by a plaintiff which is just and equitable for the purpose of s 10(1) of the Law Reform (Miscellaneous Provisions) Act 1965 requires a value judgment. The High Court pointed out in Podrebersek v Australian Iron and Steel [5] that different minds may legitimately form different opinions concerning what is just and equitable without error. An appellate court is not entitled to alter a trial judge's conclusion as to what is just and equitable for this purpose merely because the court would have reached a different decision. Unless there is discernible error, the trial judge's determination must stand if it is one which was reasonably open. 49 As the trial judge in the present matter observed, the High Court pointed out in Wynbergen v Hoyts Corporation Pty Ltd [6] that in determining what reduction in a plaintiff's damages is just and equitable by reason of his or her contributory negligence not only the relative importance of the acts of the parties in causing the damage but the whole of the conduct of each party in relation to the circumstances of the accident must be the subject of comparative examination. In the present case, it was open to the trial judge to attribute particular significance to the speed of the appellant's vehicle in relation to both his inability to avoid a collision after the respondent had mistakenly attempted to pass in front of him and the severity of the respondent's injuries when the appellant's much heavier vehicle struck the side of the respondent's small vehicle. 50 While I might not have arrived at the same conclusion myself, I consider that the apportionment determined by the trial judge was open to her Honour and should not be altered. 51 Accordingly, I would dismiss the appellant's appeal in relation to liability. The entire appeal should stand dismissed unless the respondent prosecutes her application for leave to appeal against the amount of the damages awarded to her, obtains leave, and pursues her appeal. It is only in that event that the appellant will proceed with its contemplated ground of appeal seeking a reduction in the amount of the respondent's damages. 52 In the circumstances, the stay of the judgment in favour of the respondent should be varied to apply to only 20% of the amount of the damages awarded to her. If the respondent abandons her application for leave to cross appeal or, if leave is granted, her appeal, the remainder of the appellant's appeal should be dismissed and the stay wholly discharged. 53 Finally, I am of opinion that the trial judge's order for costs in favour of the respondent should stand, and the appellant should pay the respondent's costs of the appeal to this Court up to the date of this judgment, including reserved costs (if any).

END NOTES

1. (1982) 2 NSWLR 26
2. (1976-1977) 139 CLR 161
3. (1999) 47 NSWLR 319
4. (1985) 59 ALJR 492, 493-494
5. (1985) 59 ALJR 492, 493-494.
6. (1997) 72 ALJR 65.

Revision Reasons: End Notes hyperlinks created - 26/04/07 **********

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