Philp v Ross

Carthew v Badger [2004] NSWCA 317 CASES CITED: Beale v Government Insurance Office of NSW (1997) 44 NSWLR 430 Mifsud v Campbell (1991) 21 NSWLR 725

Paul Philp - Appellant PARTIES: Grant Ross - Respondent

Ms A Katzmann SC with Mr T Edwards - Appellant COUNSEL: Mr P Garling SC with Mr J Turnbull - Respondent

Bale Boshev Lawyers - Appellant SOLICITORS: Hunt & Hunt Lawyers - Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40741/04 DC 250/02

MASON P BEAZLEY JA M W CAMPBELL AJA

1 MASON P: I agree with Campbell AJA. 2 BEAZLEY JA: I agree with Campbell AJA. 3 CAMPBELL AJA:

This is an appeal and cross appeal from a judgment of her Honour Judge Sidis for the appellant in the sum of $130,678 in respect of personal injuries suffered by him in a motor vehicle accident on 12 October 1999. That sum reflected a 50% deduction following a finding of contributory negligence. 4 The appellant challenges the finding of contributory negligence or, alternatively, seeks a reduction in the deduction made. The respondent challenges the finding of negligence or, alternatively, an increase in the deduction made.

The Circumstances 5 On 12 October 1999, the appellant, a long distance truck driver, was driving his vehicle at the intersection of Eastern Parade and Rosewater Terrace Gillman, a suburb of Adelaide in South Australia, when it came into collision with a vehicle owned and driven by the respondent. 6 The appellant's vehicle was a B-Double, consisting of a prime mover and two tri-axle flat top trailers. It was unloaded. It was 25 metres in length. Signalling lights were on each component and each had signs on the back, "Do not overtake turning vehicle". 7 The respondent's vehicle was a large fixed pantechnicon on which the cabin was narrower than the load-carrying portion which was provided with tautliner sides. 8 The intersection was in an industrial area frequented by heavy vehicles of varied types, including fixed trucks, semi-trailers and road trains. 9 Eastern Parade is a dual lane, dual carriageway separated by a stormwater drain with crossovers of which Rosewater Terrace is one. Eastern Parade runs northwest from a T-junction with Grand Junction Road and is crossed by Rosewater Terrace at a right angle. It is about 150m from the T-intersection to the intersection of Eastern Parade and Rosewater Terrace. 10 The appellant turned right from Grand Junction Road into Eastern Parade, intending to turn right into Rosewater Terrace, in order to take his B-Double to a depot in that street. Because of the length of the vehicle, it was necessary to make the turn from the left-hand lane. In the course of making the turn, at a point which will be discussed later, the vehicle collided with the pantechnicon being driven in the right-hand lane by the respondent, who intended to proceed ahead across the intersection.

The Primary Judge's Reasons 11 After dealing with preliminary matters, Judge Sidis summarised the evidence of the appellant, the respondent, and a witness, Mr Peter Smith, who was the driver of a van which was stationary at the intersection of Rosewater Terrace and Eastern Parade, on the south eastern corner, at the time of the collision. It is necessary to set out some portions of those summaries. 12 The relevant paragraphs of the judgment dealing with the summary of the appellant's account are as follows: "8. The plaintiff said he travelled a distance in Eastern Parade at a speed of about 15 kph, straddling the two lanes in that road in anticipation of a further right hand turn into Rosewater Terrace. His purpose in straddling the lanes was to prevent other vehicles from moving up beside him. He applied brakes to his trailer in order to indicate to the vehicles which followed him that he was stopping. He said that he had noted a number of semitrailers waiting behind him. He said that he activated his right hand indicator.

9. He described the manoeuvre necessary to make the right turn as a snake like movement which required him to guide the prime mover into the left hand lane while the rear trailer remained partially in the right hand lane. When he had moved the prime mover about three quarters of the way through the intended right hand turn and to the point of the line dividing the two lanes, he saw the defendant's vehicle approaching from his right in the outside lane. He denied that he had seen the defendant's vehicle before he turned from Grand Junction Road. He stopped the forward movement of his vehicle to allow the defendant room to proceed.

11. The plaintiff said that he watched the defendant's vehicle travel down Eastern Parade for about 40 metres over a period of three or four seconds. He said the speed of the defendant's vehicle increased and it did not change direction. He claimed that the defendant was not looking ahead of him prior to the collision, stating that, had he done so, he would have seen the bull bar of the prime mover protruding about two feet into the right hand lane.

12 A collision occurred, according to the plaintiff, at a point behind the bull bar on his vehicle and with the rear section of the defendant's vehicle.

14. There was considerable debate with the plaintiff in the course of cross-examination as to the precise position of the prime mover at the time of the collision. The plaintiff stated that its position, as shown on three drawings (Exhibits N, O and 1) which he had adopted as true and correct, was inaccurate. He stated that his prime mover was positioned parallel to the line of the right hand lane, rather than at the angle shown in the diagrams.

15. The plaintiff consistently denied that his prime mover was moving forward at the time of the collision with the defendant's vehicle or that, after initially stopping, he had started to move forward again in anticipation that the defendant would give way as he made his intended right hand turn. He also denied that the trailers on his vehicle had been positioned wholly within the left hand lane." 13 It is relevant to comment upon two passages in this account. The 40 metres to which the appellant referred was his estimate of the distance the respondent was away when he "sort of sit up and sort of really pay attention, you know". He had described this point of time in chief as "just before the impact, yes". In chief, he said that the respondent's vehicle was about 60 metres from him when he noticed it. On his account he continued to observe it until impact. 14 In the judgement there is a passage, "he stated that his prime mover was positioned parallel to the line of the right hand lane, rather than at the angle shown in the diagrams". 15 This appears to be a slip as the appellant's evidence was that the prime mover was, by the time of the impact, "more or less pointing parallel with Rosewater Terrace". 16 The defendant's account was summarised as follows: "16. The defendant stated that he had been the owner/driver of the truck that he was driving at the time of this collision. At the time of the collision he was travelling to pick up a second load of liquor for delivery. He had turned right into Eastern Parade from Grand Junction Road. 17. On turning into Eastern Parade he observed a number of vehicles, including two semi-trailers, moving slowly in the left hand lane. Within a few metres of turning into Eastern Parade he saw the plaintiff's B-Double ahead in the left lane. This vehicle, he said, was parked or stopped at the intersection with Rosewater Parade. He saw that the right hand indicators were operating on this vehicle at that point. He did not remember having seen any sign on the B-Double concerning the overtaking of a moving vehicle. 18. The defendant said he continued to drive along Eastern Parade and, after he proceeded past the B-Double, he heard a loud bang. He stated that his vehicle comprised a cab with a steel wall dividing the cab from a covered tray at the back of the truck. The tray, he said, was about 2 inches wider than the cab. The covering for the tray was a taut liner and behind the cab and the steel wall. …………………………………. 20. The defendant denied that his attention had been distracted from the road ahead prior to the collision. He recalled having seen a van waiting at the intersection of Rosewater Terrace to turn into Eastern Parade, but did not hear the horn of this vehicle sounded or see its driver waving at him. His speed at the time, he said, was just under 60kph. 21. The defendant agreed that he had not seen any movement of the prime mover as he approached it or at any time prior to the collision. He said the B-Double was wholly within the left hand lane and not angled across the road. He denied that any part of the plaintiff's vehicle protruded over the lane marking, stating that it was pointing straight ahead. 22. Acknowledging that he had seen the right hand indicators operating on the plaintiff's vehicle the defendant gave three reasons for ignoring them: (1) he did not realise that the plaintiff intended to turn to the right; (2) he did not think that the plaintiff could complete a right hand turn because of the position of the van in Rosewater Terrace; (3) he thought the B-Double was pulling out from the kerb to proceed directly ahead."

"23. Mr Peter Smith was the driver of the van which was stationary at the intersection of Rosewater Terrace and Eastern Parade at the time the vehicles driven by the plaintiff and the defendant collided. He said the plaintiff had indicated his intention to turn right and that there were a number of vehicles waiting behind him. The presence of Mr Smith's van impeded the right hand turn and Mr Smith therefore reversed about 2 metres back from the intersection.

24. Mr Smith said that when he stopped reversing he looked to his left and saw the defendant's vehicle approaching the intersection. He also said that the B-Double at that stage was wholly within the left hand lane and the right hand lane was completely clear. At the same time the B-Double started to move forward into the right hand turn.

25. Mr Smith said that the defendant's vehicle was accelerating from the corner at a speed he estimated to be between 50 to 55 kph. The defendant, he said, was looking towards the vehicles in the left hand lane and appeared to be unaware that they were waiting for the plaintiff to make his right hand turn.

26. Anticipating a collision, Mr Smith wound down the window of his vehicle, sounding his horn, calling out and waving to both the plaintiff and the defendant. He was unsure whether he made eye contact with the plaintiff but stated that the plaintiff had stopped the B-Double just prior to the collision. The bull bar of that vehicle, he said, was protruding between six and twelve inches over the lane line."

18 Her Honour referred to an affidavit from a police officer who attended the scene and noted: " ……….. he had verbally cautioned both the plaintiff and the defendant due to both showing some degree of fault." 19 I observe that the affidavit was very short and, apart from a general description of the intersection and a statement that the speed limit was 60 km/h, added nothing relevant to the issue of responsibility for the collision. 20 Under the heading "Liability" Judge Sidis said: "28. Having heard the evidence of the plaintiff and the defendant and that of Mr Smith, I have reached complete agreement with the attending police officer.

Mr Smith confirmed the plaintiff's impression that the defendant was not paying full attention to the road ahead of him immediately prior to the collision.

The defendant's evidence that he believed that the plaintiff was pulling out from the kerb in order to drive straight ahead is inconsistent with his statement that he believed that the plaintiff had been prevented from making the right hand turn into Rosewater Terrace by the presence of Mr Smith's van at the intersection.

Further the defendant's statement that he was aware of the presence of Mr Smith's van at the intersection was also inconsistent with his evidence that he did not see the warnings that Mr Smith attempted to convey.

In my assessment, he ignored those warnings, aware that the plaintiff intended to turn to the right but in the belief that the plaintiff could not make his right hand turn whilst Mr Smith's van remained at the head of the intersection. At the very least, in such circumstances, his obligation was to slow down until the situation had been clarified. In failing to do so, he was in breach of his duty of care to the plaintiff. I find the defendant liable to the plaintiff in respect of the collision.

The plaintiff had seen the defendant's vehicle approaching, apparently independently of the warning given by Mr Smith. In my assessment, he commenced his right hand turn in anticipation that the defendant would give way and allow him to complete the turn. At the very least, in such circumstances, his obligation was to wait until the situation had been clarified. In failing to do so, he contributed to the damage which was suffered as a result of the collision. I find the plaintiff liable in contributory negligence to the extent of 50% of the damage resulting from the collision."

Road Rules 21 Although the trial was conducted without reference to the relevant Australian Road Rules, counsel for both parties referred to the relevant rules and submissions were made in respect of them.

22 The Australian Road Rules 1999 relevantly provide: 32 Starting a right turn from a multi-lane road (1) A driver turning right at an intersection from a multi-lane road must approach and enter the intersection from within the right lane unless (a) the driver's vehicle, together with any load or projection, is 7.5 metres long, or longer, and (b) the vehicle displays a do not overtake turning vehicle sign; and (c) any part of the vehicle is within 50 metres of the nearest point of the intersection; and (d) it is not practicable for the driver to turn right from within the right lane; and (e) the driver can safely occupy the next marked lane and can safely turn right at the intersection by occupying the next marked lane, or both lanes. (2) A driver may approach and enter the intersection from the marked lane next to the right lane as well as, or instead of, the right lane if: ………….…… ……………….

143 Passing or over taking a vehicle displaying a do not overtake turning vehicle sign

(1) ……………… (2) A driver must not drive past, or overtake, to the right of a vehicle displaying a do not overtake turning vehicle sign if the vehicle is turning right, or making a U-turn from the centre of the road, and is giving a right change of direction signal, unless its is safe to do so.

Cross Claim 23 It is convenient to deal with the cross-claim first. In my view, the ground of appeal that her Honour erred in finding that the defendant was negligent is untenable. I propose to deal with it briefly. Had I been of the view that the appellant was guilty of contributory negligence involving a question of apportionment, it would have been necessary to examine this aspect at greater length. For Her Honour's finding that the defendant was at least negligent in one respect, but without an examination of the extent of the negligence, is an inadequate basis for an apportionment.

24 Mr Garling of Senior Counsel, who appeared with Mr Turnbull of counsel for the respondent, submitted that her Honour should have found that the accident was wholly the fault of the appellant. He relied upon a contention that the appellant had driven his vehicle into the side of the defendant's vehicle, behind the cabin area, whilst the respondent's vehicle was being driven appropriately along the right hand lane. Apart from evidentiary difficulties with this version, it might have had some import if he had been able to add the proposition, "without warning". However, as her Honour found, on the respondent's own version, he had seen the flashing right hand turn lights on the B-Double and elected to proceed.

25 In any event, the respondent's version is at odds with that of the appellant and, more importantly, Mr Smith. Her Honour, clearly enough, found the respondent's evidence to be inconsistent and unreliable.

26 Mr Garling took issue with her Honour's observation, "Further the defendant's statement that he was aware of the presence of Mr Smith's van at the intersection was also inconsistent with his evidence that he did not see the warnings that Mr Smith attempted to convey".

27 I agree with the submission that this observation cannot be logically supported, however, the judgment otherwise provides adequate findings to support the conclusion that the respondent was not keeping a proper lookout and did not slow down when he should have done so.

28 Even if her Honour were in error, and it became appropriate for this Court to consider this issue for itself, a reading of no more than the defendant's own evidence provides ample grounds to support a finding of negligence on his part. He said that a few metres after turning from Grand Junction Road into Eastern Parade, he saw the B-Double, albeit he thought it to be stationary, with its right blinkers on. He gave evidence:

"Q. You did not think with the right hand blinker on that he was going right? A. No

Q. And I think this is what you said, you proceeded to go past, is that right? A. Yes.

Q. What speed were you travelling? A. Just under the speed limit, it was 60kmh on…. down that road."

There is much more, however, it is unnecessary to go to it.

29 Mr Garling did advance an argument that when the B-Double came to a halt it was no longer turning and therefore the provisions of rule 143 no longer applied. I am content merely to say that such a construction of the provision offends both common sense and the obvious purpose of the provision. 30 It was not necessary, in the events that happened, to determine whether a B-Double standing at the intersection with its right turn indicator on, waiting to turn, could properly be described as a vehicle which is turning. I am inclined to think that a purposive construction of the rule would suggest that it would be, however, as I have said, the question does not arise in this matter.

31 For reasons which will appear, I do not need to consider the question of apportionment raised in the cross-claim. 32 I propose that the cross-claim be dismissed.

Appeal 33 I agree with the submission of Ms Katzmann of Senior Counsel, who appeared with Mr Edwards of counsel for the appellant, that her Honour's reasons on the issue of contributory negligence are, with respect, manifestly inadequate. 34 At their heart is the assertion that the appellant, having seen the respondent's vehicle approaching, "commenced his right hand turn in anticipation that the defendant would give way and allow him to complete the turn". This proposition is in conflict with the evidence of the appellant, referred to earlier in the judgment, and the evidence of Mr Smith. It derives little, if any, support from the evidence of the respondent who, in any event, has been found to be unreliable. Except for this finding, Her Honour had given no indication in the judgment of dissatisfaction with the credit or reliability of either the appellant or Mr Smith. 35 In these circumstances, even if the finding were open to her Honour, a subject to which I will return, she was bound to explain how she reached that finding having regard to the relevant evidence. See Carthew v Badger [2004] NSWCA 317 per Giles JA at 19, Beale v Government Insurance Office of NSW (1997) 44 NSWLR 430 at 443 and Mifsud v Campbell (1991) 21 NSWLR 725 at 728. 36 Her Honour's treatment of the question of apportionment, to my mind, makes it clear that something had gone awry with the judgment in this matter by the time her Honour reached questions of contributory negligence. Both in respect of the appellant and the respondent, she makes a finding that, at the very least, their obligations were to respectively slow down or wait until the situation had clarified. Such findings do not provide a proper basis for consideration and assessment of the extent of the responsibility and fault of each of the respective parties for the determination of an appropriate apportionment. 37 Whilst these considerations are, in my view, sufficient to require the setting aside of her Honour's decision upon the question of contributory negligence, I should add that, in my view, the conclusion she has reached is not open on the evidence that was before her. On that evidence, the conclusion she drew could be no more than speculation. 38 The appellant did believe that, in the circumstances, he had the right of way. This belief, which I consider correct, could not alone support the proposition that, after seeing the respondent's vehicle, he sought to enforce his right of way.

Re-Hearing 39 I propose that the finding of contributory negligence be set aside. I do not think a new trial is necessary, for although the judge has made clear her view as to the unreliability of the defendant, she has not expressed any reservations as to the appellant or Mr Smith, other than, perhaps, by reason of the finding I have been discussing. In my view, the question of whether the appellant was guilty of contributory negligence can properly be determined by this Court on the evidence presently before it. The issue depends substantially on the evidence of Mr Smith and, to a lesser extent, that of the appellant. 40 To my mind, the evidence establishes that the appellant was turning the B-Double prior to him seeing the approaching respondent. The critical question is whether, at the time he commenced his turn, it was safe to do so. That question is to be considered in the light, among other things, of the relevant road rules. 41 Mr Smith, who was in a position to see, gave evidence that, at the time the truck started to move, the right lane was clear. I take that to at least mean that there was no vehicle sufficiently close to suggest that the manoeuvre that was being commenced could not safely be undertaken. It would be both contrary to common sense and the relevant road rule if it were assumed that a vehicle such as the appellant's could never turn across a road unless there was no vehicle upon it that could, if it continued to be driven towards it, collide with it. The B-Double was, as the evidence shows, a large and slow moving vehicle which would take some time to cross an intersection. I accept, on the evidence, that at the time the turn commenced and the vehicle approached the lane marking to move into the right hand lane, that it was safe to do so. More relevantly, I am satisfied that the respondent has not discharged the onus of showing that it was, in fact, unsafe.

42 The matter does not end there, for having seen the respondent's vehicle approaching with the driver apparently not paying attention, as Mr Smith confirmed, the appellant brought his vehicle to a halt, at most two feet over the lane line. The photographs show that there was ample room for the pantechnicon to have driven past the front of the appellant's vehicle without colliding with it. In the circumstances, in halting his vehicle with its front two feet on to the right lane, he was not, in my view, guilty of contributory negligence, and that is so even if, contrary to my view, he was guilty of such negligence in commencing the turn when he did. 43 The evidence, even his own, establishes that the respondent pressed ahead along the lane, accelerating, without regard to the right hand turn signal flashing. Further, as her Honour found, he was not paying full attention to the road ahead. In those circumstances, it is not difficult to envisage the two vehicles coming into collision without the appellant being guilty of contributory negligence. 44 I propose that in lieu of the verdict and judgment found by Judge Sidis there should be a verdict and judgment for the appellant in the full sum of damages which she had found.

2. Verdict and judgment of Judge Sidis set aside and in lieu thereof verdict and judgment in the sum of $261,357.
3. Cross appeal dismissed.
4. The respondent to pay the costs of the appeal and cross appeal. **********

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