Smith v McFarland

Court of Appeal (NSW)|2013-08-23|Before: McColl JA, Meagher JA, Ward JA, Simpson J, Coll JA

Judgment 1McCOLL JA: I agree with Meagher JA. 2MEAGHER JA: On 3 December 2008 the appellant suffered a significant traumatic brain injury when he collided with a car whilst riding to school. He was thrown from his bicycle and his helmet unfastened and flew from his head, which then struck the road surface. That accident occurred on George Street, North Strathfield. The question whether the respondent, as driver of the motor vehicle, was liable in negligence was tried before the primary judge (Simpson J). The answer to that question, as will become apparent, depended upon whether the primary judge accepted that the collision occurred as described by Ms Kaddour, one of two independent witnesses who gave evidence. 3The primary judge did not accept Ms Kaddour's version of events and entered a verdict for the respondent: Smith by his tutor Coles v McFarland [2012] NSWSC 945. Her Honour's decision not to accept that evidence was not based upon any assessment of Ms Kaddour's demeanour. The primary judge recorded at [28]: "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." 4The appellant appeals from that decision. It is argued on his behalf that the primary judge erred in not accepting Ms Kaddour's evidence. It is also argued in the alternative that the primary judge erred in not concluding that there was other evidence on which a finding of negligence could be made which did not require acceptance of the aspect of Ms Kaddour's evidence which was said to be "quite implausible". 5As the primary judge observed at [3], there were fundamental differences between the evidence of Ms Kaddour and that of the respondent. Although the appellant gave evidence, he had no memory of events from immediately before the collision.

Circumstances of the accident 6The collision happened where Warsaw Street intersects with George Street. The relevant section of George Street is a long and straight stretch of road, running north-south, intersected by a number of east-west running cross streets. The appellant lived in George Street on the eastern side. The following uncontroversial findings were made by the primary judge: "[4] Relevantly [those cross streets] 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. ... 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. [5] The plaintiff attended Homebush Boys High School, which is south-west of [his] home and on the opposite [ie western] side of George Street. In 2008 the [appellant] was in year 8. In that year he had his 14th birthday. [6] Since he began attending high school in year 7 - 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. [7] The 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. ..."

The competing versions of events 7When opening the appellant's case to the primary judge (Black 4-5) his senior counsel referred to four relevant witnesses "three of whom were heading south" and "one [of whom] was heading north" at the time of the accident. The three heading south were the appellant, a Mr Pankhurst, who was walking in a southerly direction on the footpath on the eastern side of George Street and listening to music through headphones, and the respondent, who was driving a dark blue vehicle along the southbound traffic lane of George Street. Ms Kaddour was driving her vehicle in the northbound traffic lane of George Street. 8The appellant's case was that he rode his bicycle in a southerly direction on the eastern footpath of George Street until a point before Warsaw Street when he rode onto George Street and then parallel and close to the parked vehicles on the eastern side of George Street. As Ms Kaddour drove towards Warsaw Street she saw a white vehicle in the southbound traffic lane which intended to turn right into Warsaw Street. She slowed or stopped some distance before the intersection to provide room for that vehicle to turn across her path. As she did so she saw the respondent's vehicle, which was travelling behind that white vehicle, overtake it by going onto the wrong side of the roadway. As the respondent's vehicle overtook the white vehicle on its passenger side Ms Kaddour saw the appellant riding in the same direction as the respondent, but between the parked cars and the passenger side of that white vehicle. The respondent's vehicle then "merged" back into the southbound traffic lane and collided with the appellant's bicycle, which was also moving towards the middle of that lane. 9The respondent denied that he overtook any white vehicle or drove onto the wrong side of the road. The short statement which he gave to the police on the morning of the accident recorded the following in answer to the question "what happened?": "I was travelling south on George Street, Nth Strathfield 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." A second statement which he made on 11 December 2009 was to the same effect: "Just seconds prior, it appeared he came fr [sic] 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."

The reasoning of the primary judge 10After referring to the evidence of Ms Kaddour, Mr Pankhurst and the respondent at [10]-[27], the primary judge observed that the appellant's case depended "entirely upon acceptance of Ms Kaddour's version of the defendant's conduct in overtaking the white right turning vehicle, by swinging out into the northbound line of traffic". 11At [28] her Honour gives three reasons for rejecting that evidence as "so inherently unlikely as to be quite implausible". Those reasons were: "● 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." 12Observing that there was "no other evidence on which a finding of negligence could be made against the defendant", the primary judge ordered that there be judgment for the respondent.

The arguments on appeal 13The appellant contends that there were two possible explanations for the accident. The first was that the respondent's car had overtaken the white vehicle and the accident had occurred as it merged back into its correct lane. The second was that the white vehicle either did not exist or had gone and that the respondent's car was travelling straight down the southbound traffic lane and collided with the appellant, who was travelling in the same direction, because the respondent was not keeping a proper lookout. 14The appellant argues that the primary judge erred in rejecting Ms Kaddour's version of events (grounds of appeal 2 and 3) and that in doing so her Honour did not have sufficient regard to inconsistencies in the respondent's version of events (ground of appeal 1). The appellant also argues that the primary judge erred in not finding on the basis of the evidence of the two independent witnesses (Ms Kaddour and Mr Pankhurst) that the respondent failed to keep a proper lookout. It is said that this evidence established that the appellant was riding his bicycle in the southbound traffic lane a metre or so from the parked cars and in view of the respondent at the time the collision occurred (grounds of appeal 4 and 5).

Did the primary judge err in not accepting Ms Kaddour's version of events? (Grounds of appeal 1, 2 and 3) 15The evidence of Ms Kaddour, Mr Pankhurst and the respondent was that at the time of the accident, about 8.20am, there were parked cars on both sides of George Street and that the traffic in each direction was heavy. Ms Kaddour's evidence was that the white car was stationary "attempting to turn right into a side street" (Blue 11, 14) and that it was turned at an angle towards Warsaw Street (Black 34). The position of the white car was indicating fairly plainly that it was proposing to turn right. Ms Kaddour's version of events then had the respondent drive onto the wrong side of the road and into the expected path of that right turning vehicle. He had to have done so either aware that Ms Kaddour had stopped to allow the white car to make its right turn or realising that he might be confronted with oncoming traffic. Her Honour's view that it would have been irrational to have done so and that it was inherently unlikely that the respondent would have done so was justified. To have attempted such a manoeuvre involved a risk of a collision either with the right turning car or the oncoming traffic. 16The respondent denied overtaking any vehicle as he travelled south down George Street (Black 63, 73). He said that he was following the flow of traffic and looking in the direction in which he was travelling (Black 67, 75). Mr Pankhurst's evidence also was that the respondent's vehicle was travelling within the southbound traffic lane and straight when the collision occurred. 17In cross-examination Mr Pankhurst was not able accurately to estimate the speed of the bicycle or the precise direction in which it was travelling on the road in the instant before the accident (Black 55). He did, however, observe in his handwritten statement made on 25 February 2009 (Ex G) and tendered in the appellant's case: "I believe that the driver was unable to see the boy on the bicycle due to the parked car and that the rider was further out in the left lane than they normally would (ie near the kerb) due to the parked car." Whilst this statement is not clear as to the appellant's direction or speed, it is not consistent with the position being that the respondent was completing an overtaking manoeuvre and returning to the southbound traffic lane when he collided with the appellant, who was already in that lane. If that had occurred the respondent would have been able to see the appellant. This evidence of Mr Pankhurst accords with the respondent's evidence that the appellant "came out" from behind a parked car. 18The second and third of the reasons given by the primary judge for rejecting Ms Kaddour's version of events describe respects in which her recollection of detail changed over time. Whilst her Honour's observations as to these inconsistencies are supported by the evidence, they are not, in my view, as compelling as the first of the reasons relied upon considered with the evidence of the respondent and Mr Pankhurst. 19The appellant submits that the respondent's evidence was unreliable and points to inconsistencies between the different versions of events given by him. The respondent lived on the eastern side of George Street just south of Brussels Street. In his first statement to the police (Blue 24) he recalled pulling out of "my driveway" just before the accident. In his second statement made in December 2009 (Blue 25) he said that he was parked on the street "one or two spots up" from his driveway. In his proof of evidence (Blue 29) prepared a few days before the hearing, he said that his car was parked in George Street. In cross-examination the respondent maintained that his recollection was that his vehicle had been parked on the street (Black 71). 20I agree with the primary judge's observation at [25] that whether the respondent's car was parked on or off the street before he commenced his journey was "of no moment whatever". It was a detail at the edge of the relevant events which, at the time it occurred, was not likely to have assumed any significance. The fact that the respondent's current recollection as to that detail was not in accord with what he had told the police did not throw doubt on the reliability of his evidence as to the circumstances of the collision, which remained consistent with his report to the police immediately after the accident. 21There are two other respects in which the respondent's evidence was said to have been inconsistent or confused as to matters of detail. In his December 2009 statement (Blue 26), he had said that when he saw the appellant he "braked and blew the horn". His oral evidence was that he could not recall using his horn (Black 77). Secondly, in his proof of evidence the respondent had said that when he first saw the appellant "he and his bike were approximately at right angles to me" (Blue 29). In his oral evidence the respondent said that the appellant's bicycle was travelling at an angle of about 45 degrees to the direction in which his vehicle was travelling (Black 63, 71). It was suggested that these differences showed that the respondent had no real recollection of where the appellant was on the road (Black 72). The respondent agreed that he could not describe the precise angle but maintained that the appellant had come out "on the side of my car and I have hit him" (Black 72). That was always the essence of his evidence as to how the accident had occurred and it was consistent with the damage to his car being to the front left quarter panel and passenger side only. 22None of these inconsistencies calls into question the reliability or veracity of the respondent's evidence. That evidence, the evidence of Mr Pankhurst and the inherent unlikelihood of Ms Kaddour's description of the accident, provided a sound basis for the primary judge to reject the appellant's case. Her Honour is not shown to have erred in doing so.

Did the primary judge err in not considering and concluding that the respondent failed to keep a proper lookout? (Grounds of appeal 4 and 5) 23The appellant's pleaded case included in the alternative that the respondent's vehicle had collided with his bicycle "which was at all times travelling in the southbound traffic lane of George Street" and that the respondent was negligent in failing to keep any or any proper lookout (Red 2). That case did not depend on the respondent having overtaken another vehicle. However, the only case opened to the primary judge was that the collision happened as the respondent merged back into the southbound traffic lane, having overtaken the white vehicle (Black 4-5). It was not said that her Honour could reject Ms Kaddour's version of events and still find that the respondent was negligent because he had failed to keep a proper lookout. 24More significantly, the respondent was not given the opportunity to answer such a case by its being put to him in cross-examination. His oral evidence was that the first time he saw the appellant was when he "was coming out the front of me" and within a metre or so of his colliding with the vehicle (Black 62, 63). In cross-examination the respondent said he was driving down George Street "looking straight ahead" (Black 67); that the bicycle was not in front of him before the accident and then "he was there" (Black 74); and that the appellant was not following the traffic but had come from the side of the road (Black 75). 25This evidence was inconsistent with the position being that the appellant was riding his bicycle in front of and travelling in the same direction as the respondent. It was not, however, challenged in cross-examination, other than by the suggestion that the respondent had overtaken the white vehicle immediately before the accident, was returning to the southbound traffic lane and failed to see the appellant's bicycle (Black 84). 26There was cross-examination as to the steps which the respondent had taken to avoid the collision. That cross-examination accepted that the time before the accident during which the respondent was able to see the appellant was "very short" (Black 71), that he did not see where the appellant's bicycle had come from (Black 74) and that in the time that he had seen the appellant the only evasive action which he was able to take was to brake, the respondent being unable to swerve to the left because of parked cars or to the right because of oncoming traffic (Black 76-77). 27In his closing address, senior counsel for the appellant did not invite the primary judge, in the event that her Honour rejected Ms Kaddour's version of events, to make a finding that notwithstanding that the respondent had not undertaken any overtaking manoeuvre, he was nevertheless negligent in failing to keep a proper lookout (Black 112). That being the position, it is not surprising that the primary judge did not address and make findings as to that alternative case. The fact that, although pleaded, that case was not conducted has the consequence that the appellant should not be permitted to raise it on appeal: Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 496-497. 28Furthermore, if Ms Kaddour's version of events is not accepted the remaining evidence does not support a finding that the appellant was riding along the southbound traffic lane immediately before the accident. The appellant remembered only riding his bicycle from the footpath to the road (Black 13). Ms Kaddour's evidence was that he was not travelling in a straight line but moving to the right and into the middle of the traffic lane where the collision occurred as the respondent also sought to merge back into that lane (Black 38). That sequence of events is inconsistent with the evidence of Mr Pankhurst and the respondent, which was that the respondent was travelling wholly within that lane and in a "straight line facing south" (Black 57). It is also inconsistent with Mr Pankhurst's evidence that "the driver was unable to see the boy on the bicycle due to the parked car". 29Even if the appellant was permitted to raise this alternative argument on appeal, it is not supported by the evidence. The primary judge did not err in concluding, having rejected Ms Kaddour's evidence, that there was "no other evidence on which a finding of negligence" could be made.

Proposed orders 30The appeal should be dismissed with costs. 31WARD JA: I agree with Meagher JA.

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: 14 November 2013

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