Yeats v Nominal Defendant & Anor

FILE NUMBER(S) : CA 40416/03 APPELLANT Mr M J Cranitch SC with Mr C M Egan COUNSEL : FIRST RESPONDENT Mr W M Fitzsimmons SECOND RESPONDENT Mr R W Seton APPELLANT Beilby Poulden Costello SOLICITORS : FIRST RESPONDENT David McLachlan SECOND RESPONDENT McCabe Terrill

LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT 20681/00 FILE NUMBER(S) : LOWER COURT Master Malpass JUDICIAL OFFICER :

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40416/03

Mason P Beazley JA Cripps AJA

Thursday 5 August 2004 YEATS v NOMINAL DEFENDANT Judgment 1 MASON P: I agree with Cripps AJA 2 BEAZLEY JA: I agree with Cripps AJA 3 CRIPPS AJA: On 7 January 1998 at approximately 1am the appellant was injured when a semitrailer being driven by him in a southerly direction on the New England Highway overturned just south of the northern Armidale roundabout. 4 The traffic arrangements at the roundabout comprised two lanes at the northern entrance, two lanes within the roundabout and two lanes at the southern exit. The roundabout had a centre island approximately 48m in diameter and each lane within the roundabout was approximately 4.7m wide. The length of the semitrailer and prime mover was about 18m. 5 At trial the appellant's case was that he had entered the roundabout and was crossing from the near side lane to the off side lane - the better to cope with the curve of the roundabout - when another motor vehicle the identity of which could not be established, attempted to overtake him on his right-hand side. He said he first saw the lights of the vehicle when it had reached the middle of the semitrailer. The appellant alleged that in order to avoid a collision with the unidentified vehicle he took evasive action moving first to the left and then to the right and applying his brakes forcibly. He felt the load shift on the trailer. He was unable to control his vehicle and it rolled over just outside the roundabout - the rear of the trailer, when it came to rest, was approximately 10m from the southern exit of the roundabout. 6 In his statement of claim the appellant alleged that the driver of the unidentified vehicle was negligent in a number of particularised ways. However they came down to an allegation that the driver of the unidentified vehicle was negligent because he or she attempted to overtake his vehicle in circumstances where it could not be done with safety and had he not taken the evasive action referred to above he would have killed or seriously injured the driver of the car. 7 The appellant also sued the Roads and Traffic Authority of New South Wales (RTA) alleging it was negligent in and about the design and construction of the roundabout. It was alleged that the roundabout should have been a "super elevation" roundabout rather than, as was the case, a "cross fall" roundabout. It was alleged that the faulty design and construction of the roundabout was a contributing cause of the appellant's vehicle rolling over because the roundabout was not adequate to allow the evasive action taken by the appellant. 8 On appeal we were informed that there was also a separate and independent case sought to be made out by the appellant that even if there had been no other car involved in the accident nonetheless the RTA was liable because of deficiencies in the design and construction of the roundabout. That is to say, as I would understand the submission, it was alleged that the appellant may have been mistaken concerning the presence of an unidentified motor vehicle nonetheless the RTA would be liable to him because the roundabout was unable to cope with the evasive action he took arising out of that mistake. No case was made against the RTA that it was liable because the roundabout was inadequate to cope with the movement of a prime mover and semitrailer unaffected by the need to take evasive action. That case could have no merit at all. The appellant entered the intersection at a speed greatly exceeding the speed recommended by the signs referred to below and, on any view of the matter, had he entered the intersection at 25 kph he would have been able to have safely negotiated the roundabout without cutting the corner by moving from the near side lane to off side lane. 9 The matter came on for hearing before Master Malpass. After a five day hearing the Master published a twenty-page judgment dismissing the appellant's claim against the Nominal Defendant and the RTA. 10 In his judgment the Master referred to different versions the appellant gave to different people concerning the circumstances that led to his semitrailer rolling over. He also referred to medical reports in which histories were given that were inconsistent with the evidence he gave in Court. The Master referred to the unfavourable demeanour of the appellant when giving evidence and he said: "56. The plaintiff was an unimpressive witness. He gave the impression of being evasive. He exhibited a tendency during cross-examination to avoid being responsive to questions. Lack of recollection was used to deflect many questions. A much used saying was 'I'm not sure' or the like. This was often said where a responsive answer could have been expected. Sometimes questions were simply not answered and the question had to be repeated. Often a barely audible or an inaudible answer was given. Even his own counsel experienced difficulty in hearing certain of the plaintiff's evidence. 57. By way of contrast when he felt the need to deal with a question by pressing what he wanted to say about his case lengthy outbursts were given. Indeed, during cross-examination from counsel for the first defendant there were instances of what might be described as voluble and angry tirades expressed in a loud voice. 58. He was not candid about his pre-accident condition. Indeed it seems to me that he endeavoured to present a misleading picture both of it and the effect of the accident. 59. I have come to the conclusion that largely, in the absence of independent corroboration I do not accept the evidence of the plaintiff (inter alia I do not accept his version of his accident). 60. There is also the question of the reliability of his memory. Although the extent of causing the problem may be in dispute and somewhat unclear he does have some difficulty with memory. In my view his lack of recollection was not as bad as presented and his professed recollection is unreliable. I should add that I am not satisfied that the accident caused any significant change to his pre-accident memory impairment. 61. I do not regard him as a truthful or reliable witness. Conflicting or inconsistent assertions abound in the material. I shall return to the consideration of his evidence in relation to the accident in due course."

Later and after referring to the conflicting and inconsistent assertions he said: "79. Although the plaintiff gave evidence of slamming on the brakes, there appears to be no evidence of skidding. There is no evidence to suggest that his vehicle made contact with the kerbs. It appears that his vehicle proceeded through and out of the roundabout (at its southern exit) and rolled over outside the roundabout (ending up on its side). It was extensively damaged and was treated as a write-off. 80. He did not see the advisory signs. His evidence is that such signs would not have affected his approach. His evidence is that he was alert as he approached the roundabout. Textured strips would not have made any difference. The roundabout was extremely well lit. His version makes no complaint about the roundabout itself. There is evidence that suggests that he may have approached the roundabout at a speed of 40 - 50 kph and he may have been travelling at 40 kph at the time of the accident. He may have been driving at a speed which did not enable him to continue only in the left lane during the roundabout. … 83. In my view his version of the accident was implausible and I am not satisfied that any other vehicle was involved in the accident. 84. There is a lack of independent cooperation and his recollection is unreliable. His version was in conflict with or inconsistent with various other versions of the accident (including earlier versions which were given when it could be expected that the details of the accident would be fresher in his mind). There are versions which appeared in the material which make no reference to the involvement of another vehicle. 85. I am not satisfied that the accident was caused by any failure to make modifications in and about the roundabout (be it by way of design, signage, strips or otherwise). 86. I am not satisfied that either the first or the second defendant (the Nominal Defendant or the RTA) has been in breach of any duty of care that caused damage to the plaintiff. In my view the most likely explanation for the accident is that the plaintiff was both inattentive and travelling at a speed which was too fast in the circumstances. He should have seen the advisory sign and taken it into account. It seems to me to be likely that because he did not do so and thereby reduce his speed, he came to lose control of his vehicle and it rolled over. 87. In my view he has failed to discharge the onus of proof (on the balance of probabilities) on the questions of liability." 11 An appeal was lodged on 22 October 2003. It alleged that the Master had erred in his assessment of the appellant's credibility and reliability and by his finding that there was no other vehicle involved in the accident. It was also alleged the Master had erred in failing to have regard to documentary evidence from the RTA concerning its knowledge that the roundabout was unsafe. 12 It was alleged that the Master erred in treating the evidence of Mr Vickery (called by the RTA to explain the details of the construction of the roundabout and the speed signs leading up to it) as an expert. The Master said: "I accept his (Mr Vickery's) evidence and prefer it to competing views expressed by other experts."

The appellant has submitted, correctly in my opinion, that Mr Vickery was not put forward by the RTA as an expert. He was called to explain signage on the highway and also to rebut the assertion advanced by the appellant that the RTA had acknowledged, in internal memoranda, that the roundabout was unsafe. However it was open to the Master to accept the evidence he gave with respect to the design and construction of the roundabout, the speed signs leading up to it and to the circumstance that he knew of no "super elevated" roundabout in the area under his supervision. 13 The appellant alleged that the Master failed to give adequate reasons for his conclusions with respect to certain issues. These were:

(i) his acceptance of Mr Vickery's evidence over that of expert witnesses;

(ii) his findings that the driver of the unidentified motor vehicle had not breached his or her duty of care and had not caused damage to the appellant;

(iii) his finding that the appellant's version of the accident was "implausible";

(iv) his finding "that he was not satisfied that any other vehicle was involved in the accident." 14 Early in the appeal Mr Cranitch SC who appeared for the appellant said he would not submit that the findings made by the Master, including those concerning demeanour, were not in fact open to him and, moreover, it was open to the Master to have had regard to inconsistencies in the appellant's evidence concerning the versions he gave to different people and, as well, histories given to medical practitioners which did not square with what were, in fact, the consequences of the accident to him. He said the essence of his complaint was the Master did not give adequate reasons why he rejected the appellant's version that another vehicle was present at the time of the accident. 15 Later he appeared to resile from the concession referred to above and I have approached the appellant's case on the basis that the earlier concession was qualified if not withdrawn. However, as will be seen, I am of the opinion that it was plainly open to the Master to reach the conclusions he did and his reasons were adequate. 16 Vehicles travelling south on the New England Highway in non built-up area north of the roundabout were subject to a signed speed limit of 100 kph. Two kilometres prior to the roundabout there was a signed speed limit of 80 kph. About 150m from the mouth of the intersection there was an advisory speed sign of 25kph. Its size and position were such that it could be seen for at least 100m before that. The appellant agreed that the roundabout was well lit. 17 The appellant's evidence was that although he thought he saw the 80 kph sign he did not see the advisory speed sign. He was not sure of his speed as he entered the roundabout although he told the police it was about 40kph. He said that while crossing from the near side lane to the off side lane in the roundabout in his side mirror he saw the lights of a car in the off side lane about the middle of the trailer, which caused him to take the evasive action referred to above. 18 The appellant was not believed. On his behalf Mr Cranitch has submitted there was no reason for the Master to disbelieve him (or perhaps, more correctly, that the Master was bound to accept his evidence) because his evidence concerning the presence and behaviour of the unidentified motor vehicle was corroborated and was consistent with the versions he had given. The corroboration relied on was the repetition by him to a police officer, an ambulance driver, and to a workers compensation insurer that there was a second motor vehicle involved in the accident. However on any view of the matter he gave different versions as to how the accident happened. 19 He told the investigating police officer who attended shortly after the accident that he was in the roundabout travelling at about 40 kph when his vehicle was overtaken on the near side (and not on the off side as he said in evidence), causing him to take evasive action which included the forcible application of the brakes. The police officer said there were no skid marks. The appellant told the ambulance officer who arrived about the same time as the police that he was "cut off" by a car and swerved causing the load to move and the truck and trailer to roll. He told his workers compensation insurer that "while braking and swerving to avoid another vehicle rolled truck". 20 Later in July 1998 in the form of a statutory declaration document headed "Motor Accident Personal Injury Claim Form" the appellant drew a diagram which showed his vehicle entering the roundabout straddling the line separating the near side and off side lanes and the unidentified vehicle being in front of his vehicle and in the near side lane next to the centre island and he wrote (V2 being the appellant's vehicle and V1 being the unidentified motor vehicle): "Vehicle 2 was driving south along the New England Highway (this vehicle is a semitrailer). Vehicle 2 approached a roundabout. Vehicle 2 proceeded to negotiate the roundabout when an unidentified vehicle (vehicle 1) drove into the roundabout from behind vehicle 2. Vehicle 2 was forced to brake suddenly to avoid colliding with vehicle 1. Vehicle 2 then rolled." 21 The appellant gave versions to doctors who treated him and who saw him for the purpose of qualifying themselves to give evidence, which differed from the account he gave in Court. For example he told Dr Dave he was trying to avoid an oncoming semitrailer. 22 Had the appellant adhered to the statement made to police and others that he had been "cut off" he faced the self-evident difficulty that he was not able to give any description of the unidentified motor vehicle. If the accident occurred as the appellant alleged in evidence it followed that the driver of the unidentified motor vehicle must have seen the semitrailer roll over and he or she failed to stop. The appellant said he did not own the truck and trailer and that he was accountable to the owner for the accident. However he denied the suggestion put to him that for that reason he had invented the presence of a second vehicle. 23 The appellant said he had forcibly applied the brakes. The police found there were no skid marks. This Court was asked to have regard to the view of experts that the application of brakes does not necessarily lead to skidding even though applied forcibly. However it turned out that the "expert" evidence on this subject came from the bar table. In my opinion it was open to the Master to conclude that if the manoeuvre was undertaken as the appellant says it was the police would have seen evidence of skid marks. 24 Mr Cranitch has asked the Court to accept that the words given to the police that he was "cut off by a car" should really mean that "he cut in on me" ie about the middle of the semitrailer. 25 In my opinion it was open to the Master to reject the appellant's evidence. I do not think it has been established that he erred in finding that the demeanour of the witness was unsatisfactory and that he was being evasive when giving evidence. As the Master found his evidence was replete with inappropriate answers such as "I am not sure". Moreover it was open to the Master to conclude that the appellant was less than candid about his pre-accident medical condition. 26 This appeal is concerned with whether the Master was entitled to reach the conclusions he did. However it would seem to me that, even on the appellant's own version of the accident given at trial he was the negligent driver. Had he collided with the unidentified motor vehicle the fault, on the face of it, would have been his. Mr Cranitch has submitted that that would not be so because the driver of the unidentified vehicle was travelling at a speed which was excessive in the circumstances. However there is no evidence of the speed of the unidentified motor vehicle. Mr Cranitch has also submitted that the driver was attempting to overtake the semitrailer notwithstanding a warning sign at its rear that vehicles should not attempt to overtake it while turning. That, in my respectful opinion, misstates what the warning is directed to. The warning is directed to vehicles travelling behind prime movers and semitrailers making or attempting to make a turn. The appellant was not executing or attempting to execute a turn. In fact he was moving in a straight line and in doing so he crossed from one lane to another and he did that because he knew he could travel faster through the roundabout than if he remained in his near side lane. 27 Mr Cranitch has submitted that no inference adverse to the appellant should be drawn because the 25kph was an advisory sign only and not a sign compelling reduction in speed. He relied on an opinion from Mr Jamieson an expert retained by the appellant that drivers of motor vehicles ordinarily pay no attention to speed signs. Two things can, I think, be said of this submission. The first is I doubt whether Mr Jamieson's expertise entitled him to express the opinion he did. The second is that an adverse inference can be drawn referable to the advisory speed because the appellant said he never saw it and could give no explanation to why he did not. 28 When assessing the evidence of the appellant it must be steadily borne in mind that his case was not that he was unsure of what had happened that night. He had a clear recollection of events up to the point when his vehicle started to roll over. 29 I know of no legal principle that compels a trial judge to believe the evidence of a person in the position of the appellant simply because there is no person who can, by direct evidence, contradict him. Unless it can be demonstrated that the advantage the Master had was misused this Court would not interfere with his decision. In my opinion it was open to the Master to conclude that not only was he not satisfied there was another vehicle present but that, more probably than not, the accident was the result of the appellant travelling too fast in the circumstances. 30 The Master was criticised for not adequately analysing the evidence of experts called by all parties concerning the design and construction of the roundabout and the behaviour of vehicles using it. It is true the Master did not discuss in any detail the reports of the experts. However, in my opinion, the criticism is misplaced. If the appellant failed to establish, as he did, the presence of another motor vehicle in the roundabout his case against the RTA collapsed. 31 The experts opined that had the appellant remained in the near side lane he would have had trouble controlling his vehicle if he exceeded 30kph because of the curve of the roundabout. If, however, he cut the corner (as he was endeavouring to do) he could travel up to 48kph without difficulty. If there was no second vehicle in the roundabout the cause of the accident was, inexplicable, otherwise than as the result of fault of the appellant. 32 Mr Jamieson the expert retained by the appellant thought that if the roundabout was a "super elevation" roundabout rather than a "cross fall" roundabout the crash "possibly, if not probably, would not have occurred". This opinion was expressed in the context of the appellant undertaking the evasive manoeuvre referred to in his evidence. Had that evasive manoeuvre not been undertaken the explanation for the accident was that given by the Master viz the fault of the appellant. 33 So far as the Nominal Defendant is concerned it was bound to succeed unless the appellant was able to establish the presence of an unidentified motor vehicle that was being driven negligently. The Master made no finding concerning the driving of the unidentified motor vehicle for the simple reason that he was not satisfied that there was a motor vehicle present at the time. In my opinion it was open to the Master to make the finding he did. As I have said, I am of the opinion that even if the version of the appellant were accepted it was the appellant and not the driver of the second motor vehicle that was guilty of negligence. If the appellant's evidence was accepted the driver of the unidentified motor vehicle entered the roundabout in the off side lane and remained in that lane. Had there been a collision the fault, in my opinion, would have been sheeted home to the appellant because he crossed lanes as he drove through the roundabout.

34 So far as the RTA is concerned in this Court it was submitted that even if there had been no other vehicle present, liability had been established against the RTA because the design and construction of the roundabout could not accommodate with safety a semitrailer braking and swerving to the left and right. It would seem to me that this case must fail for a number of reasons. If I understand the submission correctly it is not that the roundabout was not adequate to cope with a semitrailer travelling at 25 kph as it entered the roundabout. The expert evidence was that if the driver remained in the near side lane he could have travelled safely through the roundabout at approximately 30kph with safety. If he cut the corner (as he did) he could travel through the roundabout up to 48kph with safety.

35 The appellant submitted the Master should not have treated Mr Vickery as an expert when, he was not called as an expert. It is true Mr Vickery was not called as an expert. However he was called to rebut the claim by the appellant that internal memoranda in the files of the RTA contained an admission that it was of the opinion that the roundabout was not properly constructed. As it turned out the statement relied on by the appellant did not support the case he sought to make. The roundabout was described as having been over-constructed and that the "embarrassment" relied on by Mr Cranitch on behalf of the appellant was that it might be revealed that too much money had been spent on it. 36 Although in the particulars of negligence it was alleged that there should have been noise bumps or textured strips in the roundabout as events turned out their absence had no relevance to the case against the RTA because they would have made no difference to the manner of driving by the appellant as he made clear in his evidence. 37 The appellant has also criticised the failure of the Master to mention or deal with the expert report of Mr Wingrove. Mr Wingrove was retained on behalf of the Nominal Defendant. He is a consulting transport engineer with Unisearch Ltd. In it he disagreed with Mr Jamieson's opinion that it "would not be expected that large vehicles (either a semitrailer or a B-Double) would keep in their lane, but rather their "swept path" would require them to straddle both of the lanes within the roundabout in order to clear the centre island and the outside kerbs." But, with respect to the argument, it is difficult to know what advantage the appellant seeks to get from the failure of the Master to deal with Mr Wingrove's evidence. In his opinion the roundabout was properly designed and properly marked as a dual lane roundabout and that, had the appellant's semitrailer negotiated the roundabout in the marked outside lane (as the appellant could have done) there would have been no reason for him to have taken evasive action due to the presence of an overtaking vehicle (assuming one were there). Moreover he was of the opinion there was no need for the appellant to "straddle both of the lanes within the roundabout in order to clear the centre island and the outside kerbs". 38 In a supplementary report Mr Wingrove agreed with the report furnished by Mr Sannikov the expert retained by the RTA that, in effect, a semitrailer travelling at the advisory speed sign of 25 kph "was capable of staying within its traffic lane" and that the roundabout "was designed for speeds well in excess of the signposted advisory speed". He mentioned that the RTA could have placed greater emphasis on additional signposting such as, presumably, a tilting truck sign which has since been erected. However even if a tilting truck sign had been there at the relevant time the appellant still faced the problem that on his version of events he did not see the advisory speed sign that was there and he entered the roundabout at a speed which was excessive in the circumstances. Furthermore it is to be noted that Mr Wingrove opined that had the appellant's version been correct he would have expected skid marks on the road. 39 In my opinion the conclusion of the Master that there was no second vehicle involved (or perhaps more correctly, that he was not satisfied there was) was open to him and, in my opinion, it has not been established that he gave inadequate reasons for that conclusion. 40 Absent the presence of a second vehicle there was, in my opinion, no case that could be made against the RTA on the material before the Master. The case against it depended upon a finding that the appellant was compelled to take evasive action in circumstances where the roundabout was not constructed to cope with it. If there were no other vehicle present there was no reason why the appellant needed to take evasive action. 41 The case against the RTA was that there was a second vehicle causing the appellant to take evasive action. Once it was determined that there was not a second vehicle the RTA could hardly be held responsible for the consequences of the evasive action taken by the appellant which, on this hypothesis, need not have been taken.

42 I have not dealt with all the medical evidence concerning inconsistencies between what the appellant said in Court and what versions he gave to various medical practitioners. In the appellant's favour I have not attached undue weight to histories given to doctors who were probably more concerned with assessing the appellant's condition than with establishing the reliability of his evidence as to how the accident occurred. However the histories that were given scarcely advanced the appellant's creditability or his case. 43 Although it is unnecessary to deal with the medical evidence it is appropriate, I think, to deal with the submission made by Mr Cranitch concerning what he submits must have been the failure of the Master to have regard to a report from a neurophysiologist Mr Fox retained by the appellant to the effect that the appellant suffered from a genuine memory difficulty. Mr Fox expressed his opinion in 1998. In 2003 Dr Roldan furnished a report to the defendants expressing the opinion that the report of Mr Fox was seriously flawed in that the tests administered did not accord with standard practice. Moreover he noted that Mr Fox did not administer the tests himself but merely recorded the work of his daughter. Neither Mr Fox nor Dr Roldan were called to give evidence. There was no report from Mr Fox disputing what Dr Roldan had said were the flaws in his report. If, as may have been the case, the Master accepted the opinion of Dr Roldan he could not, in my opinion, be criticised for so doing. 44 I would propose the following orders.

2. The appellant to pay the costs of the respondents. **********

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