Smith by his tutor Coles v McFarland

Supreme Court of NSW|2011-11-25|Before: Simpson J

Judgment 1This is a claim for damages for personal injury arising out of a collision between a motor vehicle driven by the defendant (Graham McFarland) and a bicycle ridden by the plaintiff (Oliver Smith). The collision occurred at about 8.20am on 3 December 2008 (a Wednesday), on George Street, North Strathfield. The plaintiff was thrown from his bicycle, his helmet unfastened and flew from his head, and the plaintiff suffered injury, including brain injury. The extent of the injury does not call for present determination: by reason of the plaintiff's age at the time of the injury (14) it has been agreed that it is premature to attempt to assess the quantum of damages, if any, to which he will be entitled. Accordingly, it has been determined that there be a separate trial on the issue of liability; damages, if the plaintiff is successful in establishing liability, will follow. 2The plaintiff alleges that the collision was caused by the negligence of the defendant. The defendant denies any negligence, alleging that the plaintiff rode into his vehicle, or into the path of his vehicle. 3There are real difficulties in determining the precise circumstances of the collision. That is because of significant divergences in the evidence of the principal witnesses. There is little area of common ground. The plaintiff himself has no recollection of the events immediately before being thrown from his bicycle. 4What is common ground is the following. The plaintiff lived in George Street, North Strathfield, on the eastern side. That is the street on which the accident occurred. The relevant section of George Street is shown, in a series of four Google photographs that were in evidence by consent, to be a long and straight stretch of road, running north-south, intersected by a number of east-west running cross streets. Relevantly, these included, from north to south, Brussels Street, Lorraine Street, Warsaw Street (which formed a T-intersection with George Street from the west) and Pomeroy Street. Brussels Street is the closest to the plaintiff's home. The general location can be seen to be suburban/residential, with, on the west side, predominantly domestic bungalows, and, on the eastern side, apartment blocks. There appears to be only one set of traffic lights in the immediate vicinity, at Pomeroy Street. George Street is comprised of two lanes in each direction. Parking was permitted on the left hand lane in each direction, and these lanes were ordinarily fully occupied with parked cars, leaving only one lane in each direction for moving traffic. On weekday mornings, traffic on these lanes was usually heavy. 5The plaintiff attended Homebush Boys High School, which is south-west of the plaintiff's home and on the opposite side of George Street. In 2008, the plaintiff was in Year 8. In that year he had his 14th birthday. 6Since he began attending high school in Year 7 - that is, for about two years before the accident - it had been the plaintiff's practice to ride a mountain bike to school. His usual route took him south in George Street; it was necessary at some point to cross from the eastern side of George Street to the western side. 7The plaintiff's evidence was that his practice was to ride some part of the way from his home on the eastern footpath, before crossing to the western side of George Street. Most commonly, he made this crossing from a driveway on the eastern footpath just north of Warsaw Street (Warsaw Street, unlike the other cross streets, terminated at George Street, creating a T-intersection). 8From Warsaw Street, it was the plaintiff's practice to ride on the western footpath of George Street for one more block, to Pomeroy Street, where he turned right, and left the vicinity of George Street and rode to the school.

The collision 9The plaintiff could give no evidence about the collision itself. Two witnesses, each apparently independent, gave evidence in his case. The defendant was the only witness in the defence case. I will recount briefly the evidence given by each of the witnesses. Although the evidence given by each witness was largely consistent with statements made on previous occasions, there were discrepancies, and a good deal was sought to be made of them. I will identify such of those discrepancies as are material.

Zena Kaddour 10In 2008 Ms Kaddour's employment was at Concord West. She drove to work along George Street, travelling north. She was familiar with the intersections. On 3 December 2008, she said, the traffic was "pretty heavy", and the weather was clear. Cars were parked continuously along both sides of George Street, so that, in each direction, there was only one lane of moving traffic. Ms Kaddour said that at the Warsaw Street intersection she observed a white car, facing south, that was attempting to, or signalling its intention to, make a right hand (west) turn into the intersection. She slowed her vehicle to allow the white car to make the turn into Warsaw Street. As she did so, she saw a blue vehicle (the defendant's vehicle) which initially was immediately behind the white car, veer, at speed, to the right of the white vehicle into the north travelling lane, and overtake the white vehicle, before beginning to merge back into the southbound lane. At some time she saw the plaintiff on his bicycle, on the western side of the road, between the parked cars and the moving traffic. At this point the plaintiff on his bicycle was on one side (east) of the white car; the defendant's blue vehicle was on the other side (west) of the white car. Ms Kaddour said that she saw the front left panel of the defendant's vehicle strike the plaintiff. She saw the plaintiff "taking quite a leap off that bike". She saw his helmet flying from his head, and his head strike the road surface. She was "pretty sure" that the white car had in fact turned right as indicated. The driver of the blue car (the defendant) drove on until he found a place to stop and run to the plaintiff. 11Ms Kaddour marked one of the Google maps (Ex D) to indicate where she had stopped her car. Her initial attempt was rejected (by counsel) as unsatisfactory; taken literally, it showed her car in the kerbside lane which was in fact, fully occupied with parked cars. It is also of significance that it showed her car to be quite close to the northern most point of the southern kerb, almost into the intersection. Her second attempt showed her car in the lane nearest the centre line on the road (ie the lane that did contain moving traffic), and at a considerable distance south of the Warsaw Street intersection. In cross-examination she said that she was "a good couple of metres" behind the intersection (ie to the south). She also said in cross-examination that she had not actually stopped, but was coming to a stop in order to enable the white car to make the right hand turn. 12The salient aspects of the Ms Kaddour's evidence were that she had seen the defendant's vehicle overtake the white car, on the incorrect side of the road, while the white car was signalling its intention to make a right hand turn; her evidence of where she stopped (some distance from the intersection); and her observation of the plaintiff riding his bicycle on George Street, in the space between the parked cars and the moving traffic, alongside the white car and at an angle, into the southbound lane. 13She marked the Google map (Ex D) with an arrow to show the direction, or angle, of the plaintiff's travel. This is a roughly 45 degree angle, from the junction of the kerbside and right hand lanes. That appears to be inconsistent with her oral evidence in which she said that the plaintiff was in the middle of the (moving) southbound lane; yet she also said, immediately after that, that he was between the parked cars and the moving cars crossing over and then moving back into "the middle lane". She also marked on Ex D the point where she said the plaintiff landed on the road. This was at a point marginally past the centre of the intersection, in the lane that carried moving traffic. 14Ms Kaddour made a statement to police on 7 November 2009, one year after the accident. In that statement she said that she had seen a car stationary in George Street, waiting to make a right hand turn, and stopped her vehicle to permit him to make the turn. She said that she saw a "dark coloured sedan" come from behind the stationary vehicle and cross to her (the northbound) side of the road and overtake the stationary vehicle, and merge "really quickly" back into his own land, and collide with the plaintiff, who she had seen riding in the middle of the southbound lane, next to the parked vehicles. She said she saw the defendant park his vehicle, and that she parked hers and went to the plaintiff's assistance. She essentially repeated this in an "Evidentiary Statement" made on 8 November 2011, a few days before the hearing. 15It will be observed that Ms Kaddour said in evidence that she had slowed her vehicle to allow the white car to turn right. In cross-examination she was quite definite that this was the case. In the statements made on 7 November 2009 (one year after the events in question) and 8 November 2001, she said that she had stopped for that purpose. This is one of the discrepancies that attracted some attention for the purposes of cross-examination.

Matthew Pankhurst 16Mr Pankhurst also lived in George Street, on the eastern side of the road, but north of Brussels Street. He gave evidence that his practice was to walk south on the eastern footpath to Pomeroy Street (that is, past Warsaw Street), and turn left to the railway station. This is what he did on the morning of 3 December 2008. He was listening to music through headphones. He also described the traffic conditions as heavy. The eastern kerb side lane was fully parked. 17Mr Pankhurst said that he walked in his usual way down George Street. As he approached the Pomeroy Street intersection - that is, at a point south of Warsaw Street - he saw a blue Holden Commodore emerging from a driveway. The driver stopped and allowed him to pass. (It was assumed throughout the hearing that this was the defendant's vehicle. If that assumption is correct, it is likely that Mr Pankhurst has confused the Pomeroy Street intersection with an intersection further to the north.) About two car lengths later, Mr Pankhurst heard a loud bang; he looked to his right and saw the plaintiff fly over the handlebars of his bicycle and slide to halt on the ground. His helmet came off his head. He saw that the bicycle had collided with the blue car he had seen moments before in the driveway. He said that the collision occurred in the left hand lane of the road. He marked on Ex C (another Google map, showing a closer view of George Street) what he recalled as the point of impact. That point is further south than that marked by Ms Kaddour - a little south of the Warsaw Street intersection. He said that the defendant's car stopped immediately after the collision. It did not change direction and "would have been going straight when it connected with the bicycle". Mr Pankhurst did not see the impact; his attention was drawn to the road by the noise of the collision. 18Mr Pankhurst also made two statements, some time after the accident, on 25 February 2008. One was a handwritten statement, the other taken by investigating police. In these statements he said that as he walked south towards the Pomeroy Street intersection he saw a blue vehicle stopped in a driveway to let him pass. He said that, in his peripheral vision, he saw the plaintiff riding in the left lane. He said that the plaintiff was riding in main thoroughfare because there were parked cars in the kerb side lane. He was about half a metre to a metre from the parked cars.

The defendant 19The defendant also lived on the eastern side of the George Street, close to the Lorraine Street intersection, south of Brussels Street. (That is why Mr Pankhurst's evidence as to the driveway in which he had passed the defendant's car must be treated with considerable circumspection.) He said that his car had been parked on the street about 400 metres north of the Warsaw Street intersection. He said that he drove south in George Street. He first saw the plaintiff on his bicycle at a point when the bicycle was at a 45 degree angle to the corner of his car. He said the impact with his vehicle was at the front, in the region of the blinkers, and down the front side panel. He denied having overtaken any other vehicle and said that he was not merging or deviating to either side of the road. He said he had no opportunity to take any evasive action because of the traffic coming from the other direction. 20In a statement made to police shortly after the collision, on the same day, and recorded in the notebook of a police officer (Ex J), the defendant said: "I was travelling south on George St ... at approx 20km/h - 30km/h as I had just pulled out of my driveway. A 12 year old kid riding a bike came out from behind a white parked car and collided with the front left side of my car and damaged the mirror." 21He was interviewed again, a year later, on 11 December 2009. This interview was recorded in question and answer form in another police notebook (also part of Ex J). By this time, both Ms Kaddour and Mr Pankhurst had provided their statements. The substance of Ms Kaddour's account was put to the defendant. He denied overtaking any vehicle prior to the collision. He was asked where his car had been parked prior to the collision. (I take this as meaning prior to the commencement of his journey that day.) He is recorded as saying: "... one or two spots up (sth) of my driveway, on the st[reet]" and that he had travelled only about 400 metres when the collision occurred. He accepted as a possibility that he had not parked on the street, but had driven out of the driveway of his block of units. (This question was plainly put as a consequence of Mr Pankhurst's statement.) He said that he first saw the plaintiff just seconds prior to the impact. The following is recorded in the notebook: "It appeared he came fr[om] the side & was at a 45° angle, it looked like he was trying to cross the rd. I braked & blew the horn & he swerved back to the left but I wasn't able to avoid hitting him." 22Also in evidence was a "proof of evidence" of the defendant which is not dated. In this statement he said that his car had been parked in the street. He recalled leaving his apartment, entering the car, and driving south in George Street. At that time there was no cyclist in front of him. He said that, as he drove down the street, the person on a bicycle pulled out from the left in front of him. When he first saw the cyclist he was at right angles to the car. He said that he braked as soon as he saw the cyclist. The cyclist seemed to try to straighten up to avoid a collision. The bicycle hit the side of his car at the front quarter panel, near the windscreen, and the mirror. He said that he pulled the car up very quickly, and alighted to assist the plaintiff. He did not move his car from the position in which he had stopped until after being spoken to by police. 23In his evidence, the defendant placed the point of impact as just into the entrance to the Warsaw Street intersection, several metres north of the point identified by Ms Kaddour and further north than that identified by Mr Pankhurst. 24As I mentioned above, much was sought to be made (on each side) of what were seen to be discrepancies in the evidence given by different witnesses, or, more often, between accounts given at different times by the same witness. The discrepancies were, for the most part, minor and/or unimportant. 25One question that assumed undue prominence concerned the location of the defendant's car before he began his journey. I say immediately that the actual location of the car is of no moment whatever. At best, the issue relates to the defendant's recollection of the events in question. It appears to have been precipitated by Mr Pankhurst's account of having been allowed to cross a driveway by the driver of a blue Commodore, which, it may be assumed, was the defendant's car. Notwithstanding his original statement that he had just pulled out of his driveway, and his concession in the second recorded interview that he may "possibly" have driven out of the driveway, the defendant was adamant in his evidence that his car had been parked in the street. 26Curiously, the defendant seems to have given a number of different rationales for his certainty about this (unimportant) fact. In examination in chief he said that he shared his apartment with two others, but that there were only "a couple of [parking] spots per tenancy", and that, as he was usually the last in, he parked on the street. In cross-examination he gave as an additional reason that his car was company owned "so there was no risk to ownership", meaning that the company could take the risk of any damage caused to it by it having been parked in the street. Later, still in cross-examination, he said that one of the internal parking spaces was a secure car park, to which he could not gain access, and the other was part of the tenant's lease agreement. 27As I have made clear, I do not find the debate about where the defendant's car was parked before he drove off to be the least bit illuminating. It does not even cast any light on the defendant's credibility or reliability with respect to the critical event, the collision with the plaintiff. 28Resolution of the competing cases is, I have concluded, to be found in the evidence of Ms Kaddour. The plaintiff's case against the defendant depends entirely upon acceptance of her version of the defendant's conduct in overtaking the white right turning vehicle, by swinging out into the northbound line of traffic. I find that I am unable to accept Ms Kaddour's evidence. That finding is in no way dependent upon observation of her demeanour in the witness box. I saw no reason to form a view that she was deliberately fabricating her evidence, or a view otherwise adverse to her credibility. However, I am satisfied that her account is so inherently unlikely as to be quite implausible. That is based upon objective analysis of her account. My reasons are:

on Ms Kaddour's account, the defendant was driving behind a vehicle that had signalled its intention to make a right hand turn. She had slowed or stopped in order to allow it to do so. It would be quite irrational for the defendant to pull out to the right in those circumstances. If the defendant had been aware of Ms Kaddour's action in slowing or stopping to allow the white car to make its turn he would have been pulling out to the right of a right turning vehicle - that is, into its path. If he had not been aware of Ms Kaddour's action, he would have been pulling out to the right into a line of north moving traffic. I did not obtain the impression that the defendant was so irrational as to contemplate such a manoeuvre;
Ms Kaddour's evidence of where her vehicle was located at the time she asserted the defendant pulled out to the right was inconsistent. Initially, she placed her car in the kerb side lane, and very close to the intersection. After that version was rejected, she placed her car some way back from the intersection, but in the north travelling lane - far enough back from the intersection to allow the defendant's vehicle to make the swing to the right, and return to its place in the southbound lane. Had she not so placed her vehicle, the defendant would have found his return to the southbound lane blocked by her vehicle, and himself stranded in the northbound lane. But there is no reason in logic why Ms Kaddour would have stopped so far back from the intersection if her purpose was merely to allow the white car to execute a right hand turn;
Ms Kaddour initially said that the plaintiff was riding parallel to and in between the parked cars and the moving cars. Then she said that he was riding in a straight line in the southbound lane. But her arrow on Ex D shows the plaintiff at a 45 degree angle heading from the parked cars (or the footpath) into the southbound lane. 29I am satisfied that the accident did not occur as Ms Kaddour described. There is no other evidence on which a finding of negligence could be made against the defendant. 30There must be a verdict for the defendant.

Amendments 01 March 2013 - typographical error Amended paragraphs: coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 August 2012

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