PORTER v NEW SOUTH WALES INSURANCE MINISTERIAL

MOTOR VEHICLES - negligence - right hand turn - duty to make turn with safety - credibility evidence - judge believes defendant and his passenger - they say that defendant turned right when red light signal showing against appellant - appellant gives conflicting evidence to police and at trial - held: Court of Appeal is not authorised to intervene - real responsibility for collision was the appellant's driving - no negligence - appeal dismissed. Tran vy Government Insurance Office (NSW) (1994) 20 MVR 182 (NSWCA) applied.

APPEAL & NEW TRIAL - credibility findings - collision in intersection - respondent driver asserts he turned into intersection when traffic signals changed to red against appellant - appellant says that lights green (or orange) when she entered intersection - held: Court of Appeal not entitled to intervene - appeal dismissed. Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; Ryan v Gill, (CANSW), unreported, 2 February 1995 applied.

Kirby P. In Sibley v Kais (1967) 118 CLR 424, at 427, the High Court of Australia said:

... itis, in our opinion, rightly said that the "right hand rule" is not the be all and end all in relation to questions of civil responsibility". The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to "reasonable care' is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such afashion that, if both vehicles continue, a collision may reasonably be expected ...

See also Henderson v Hassel & Anor (1986) 3 MVR 359 at 360.

Cases involving accidents which occur at intersections and, in particular, intersections which are not controlled by traffic lights with automatic arrow signals, are by no means infrequent in this Court. Such cases have, for example, come under consideration in Tran v Government Insurance Office of New South Wales (1994) 20 MVR 182 (CA) and most recently in Davies v Day, Court of Appeal (NSW), unreported, 7 November 1995. In each case mentioned, as in the

present case, it is the duty of this Court to re-examine the facts for itself. But it is a duty which must be performed within the limitations which control appellate interference in the decisions of trial judges, particularly where those decisions rest upon assessments of the credit of the essential witnesses made by the trial judge. That judge has advantages which an appellate court lacks, including the opportunity to observe the witnesses and to derive from doing so an impression about the witness" credit. Conflicting evidence about an accident at an intersection

The present case arises out of an accident which occurred on 9 March 1989. It involved Miss Kathryn Porter. She brought proceedings against the Government Insurance Office of New South Wales. The title of the insurer has not been changed in the appeal documents. I will substitute the New South Wales Insurance Ministerial Corporation for the insurer. The latter was, at therelevant time, the representative, in law, of a vehicle driven by Mr Robert Beaton. The Corporation has now succeeded to the insurer's rights and duties.

The vehicle of the appellant and Mr Beaton's vehicle were proceeding in opposite directions in President Avenue, near Sutherland. The appellant was proceeding directly along President Avenue. She intended to retain that course, travelling in an easterly direction. Mr Beaton was travelling in a westerly direction. He intended to turn into Hotham Street, a road on his right.

Mr Beaton gave evidence that he proceeded to the intersection of President Avenue with Hotham Street. That intersection was at the time controlled by traffic signals. It is agreed that, at the time of the accident, the traffic signals then in place did not include an arrow signal to control vehicles turning into Hotham Street (or indeed into the other arm of the intersection). That arm is called in the transcript 'Grays Point Road'. However, it is also common ground that it was actually North West Arm Road.

Mr Beaton said that he approached the intersection past the point of the lights. He was half a car length past the lights. He stopped and waited for a safe opportunity to make the right hand turn. He saw, travelling in the opposite direction, three vehicles which stopped to wait at the lights on the other side of the intersection. Their clear intention was to complete a right-hand turn into North West Arm Road. Those vehicles included two motor vehicles and a bus. Mr Beaton says that he proceeded slowly into the intersection when the signals turned red against oncoming traffic. It was at that time that he was hit by the vehicle driven by the appellant, who was proceeding in the kerbside lane.

According to Mr Beaton, the driver of the appellant's vehicle entered the intersection contrary to the red light signal.

The appellant's version differed at the trial and in an earlier statement to police. At the trial, in her original evidence, she contended that she had proceeded into the intersection with the lights facing her direction were showing green. However, there was produced at the trial, and became the subject of cross-examination of the appellant, a statement which the appellant had made to police shortly after the collision. In this statement she said:

... was driving from Sutherland on President Avenue at about normal speed. I was in the closest lane to the kerb as I approached the road to north west arm. The lights turned orange. They may have turned whilst I was in the intersection. There is no way I could stop, I could have stopped (sic) in time. There was a white vehicle in front of me. I hit the passenger door.

The primary judge resolves the conflict of evidence

UWRARTER v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Kirby PB

Because of the conflict of versions as to how the accident occurred, it became necessary for the trial Judge, Shillington DCJ, to determine who was to be believed and what had actually occurred. The trial judge had the differing statements of the appellant. He also had evidence from Mr Beaton and evidence from Mr Beaton's witness, Mr Keshan. He found that the evidence of Mr Beaton and of Mr Keshan was unshaken by cross-examination. Their evidence was to the effect that Mr Beaton only began to make his complete turn to the right after the light facing oncoming traffic turned red.

There was one further ingredient in the evidence which gave some degree of support to Mr Beaton's version. It was that he had in view a bus which was proceeding in the same direction as the appellant which had not been able to make its turn on the signal. The bus was therefore to some extent blocking his view of oncoming vehicles such as a vehicle driven by the appellant in the kerbside lane. The respondent recognised this danger. He gave the following evidence (p 98AB):

... Q: As at that time do you say the lights were orange or green or do you have any recollection at all? A. Well, I - really I waited for the red light because there was no way that I could see the traffic coming because of the bus. So I had to wait for a red light before I turned.

HIS HONOUR: Q: Were you actually - A: I was at the intersection.

A: You couldn't see past the bus so I had to wait because I couldn't see anything coming.

[Counsel for the appellant] Q: Now, these cars that had turned right in front of you, cleared you say, is that not so?

Q: And at that time after they cleared did you start to move forward?

A: No, I waited for the red light ... 'Shillington DCJ reflected upon the versions which had been given to him in evidence. He concluded that no negligence had been shown on the part of Mr Beaton. This is what his Honour said:

... It seems to me that Mr Beaton did all that could be expected of him. In the circumstances it was quite reasonable to assume once the lights had turned red that he could then move on to the path of oncoming vehicles coming from the west. He was travelling at a slow speed, he said something in the vicinity of 10 kilometres per hour when the impact occurred, and I see no basis upon which he could be criticised for the manoeuvre which he carried out. He maintained, despite vigorous cross examination, that he did not turn on the yellow, that his turn into the path of oncoming vehicles, but waited until the light was red.

In these circumstances it seems to me that no criticism can be levied at by Mr Beaton on the way that he proceeded on to the northern part of President Avenue. I am not satisfied that he showed any lack of care in the manoeuvre which he carried out and I am satisfied that I can rely on his account of what did happen, that is it is really reliable as is his passenger's and in these circumstances the verdict must be one for the defendant. It will be verdict and judgment accordingly.

Earlier in his judgment Shillington DCJ, comparing the credibility of the witnesses, said that the appellant's evidence was inconsistent with her statement earlier made out of Court to the police constable. He concluded: 'It has cast doubt upon the reliability of it', meaning her evidence before him.

Given these findings as to the credibility of witnesses, it is not permissible, except in very limited circumstances which are not here available,for this Court to reach a different conclusion on the evidence which was to be believed. See Abalos v Australian Postal Commission (1990) 171 CLR 167 , 178 and Devries & Anor v Australian National Railways Commission & Anor (1993) 177 CLR 472 , 477.

Ultimately, so much was conceded before this Court, for the appellant. Yet it was said that the case was one, as finally put by counsel for the appellant at the trial, of negligence on the part of each driver. The Court was taken to a number of the authorities in which courts have emphasised the obvious, namely, that both by the common law and by the Motor Traffic Regulation, drivers who turn their vehicles to the right, across a main road of traffic, must do so with care and with attention to their own safety and to the safety of other persons on or near the road. So much is not in doubt. There is no point in elaborating the principles, particularly given that they were recently explored at some length in Davies v Day (above). However, I do not believe that this alternative way of putting a case has any more merit in this Court than it did at the trial. Once it is determined that Mr Beaton paused and turned to his right, proceeded cautiously and then only when a red light was showing against traffic coming in the direction of the appellant, the real responsibility for this impact must be laid at the appellant's door. Given the terms of his Honour's finding as to credibility of witnesses, the inference is inescapable that the appellant must have proceeded into the intersection contrary to a red signal. There is objective evidence which tends to support this, including the positionof the bus, the fact that Mr Beaton's vehicle turned slowly and the fact that it was hit directly at the passenger door.

In these circumstances, on the basis of his Honour's credit findings as recorded in his reasons, this Court is not authorised to substitute a different opinion supporting the conclusion either that the appellant had come into the intersection on a green light (as she said in her oral evidence) or that she had proceeded into the intersection on the yellow/orange light (as she had alleged in her statement to the police). Sadly for the appellant, her evidence did not convince the primary judge. He accepted the evidence of Mr Beaton. That evidence was confirmed b the passenger Mr Keshan. This Court is not authorised by the law to disturb the conclusion which then resulted.

I say this with some feeling of regret for the appellant. She was seriously injured. Perhaps our law, as the law of some other jurisdictions, should provide in such cases that people can recover damages simply because they are injured in motor vehicle accidents. This case is typical of the attention required by these cases to the fine detail of what happened in a couple of seconds in the life of the appellant, in which seconds she was seriously injured. Now, as a result of the application of the law, she receives no damages. I believe that the appellant may have been paid workers" compensation benefits. However, so long as the law requires the proof of negligence to secure recovery of damages in motor accident cases this Court must apply that law. In the case of an appeal it must do so with the limitations imposed upon appellate judgesby the law controlling disturbance of the findings of primary judges resting on assessments of credibility.

UWRARTER v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Kirby PB

The consequence is that the appellant has not made out a basis of establishing error on the part of Shillington DCJ. His Honour's conclusion, based on the findings of credibility which he made, were inevitable.

The appeal must therefore be dismissed. The appellant must pay the costs of the appeal.

Kirby P. The orders of the Court are that the appeal is dismissed. The appellant must pay the costs.

Solicitors for the appellant: Saville and Walkom Counsel for the respondent: D H Di Suvero

Solicitors for the respondent: Peter Jessep (Solicitor for NSWIMC)