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CITATION: Harris v Manton & Anor [2020] QCA 241

PARTIES: MITCHELL CHARLES HARRIS

(appellant) v

DANE DOUGLAS MANTON (first respondent)

QBE INSURANCE (AUSTRALIA) LIMITED ACN 003 191 035

(second respondent) FILE NO/S: Appeal No 5909 of 2020

SC No 7044 of 2018 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING

COURT: Supreme Court at Brisbane – [2020] QSC 101 (Bradley J) DELIVERED ON: 4 November 2020

DELIVERED AT: Brisbane

HEARING DATE: 21 September 2020

JUDGES: Fraser JA and Boddice and Brown JJ ORDERS: 1. The appeal be dismissed.

2. The appellant pay the respondents’ costs of the appeal, to be assessed on a standard basis.

CATCHWORDS: INSURANCE – MOTOR VEHICLES – INSURANCE OF MOTOR VEHICLES FOR LOSS OR DAMAGE – LIABILITY FOR PERSONAL INJURY – where the primary Judge dismissed the appellant’s claim for damages for negligence in respect of personal injuries sustained when the motor vehicle the appellant was driving collided with a motor vehicle being driven by the first respondent – where the appellant appeals that decision – where the issue is whether the primary Judge erred in finding that the collision occurred as a result of the negligence of the appellant in crossing into the lane in which the first respondent was travelling when it was unsafe to do so and without giving way to the first respondent’s motor vehicle – whether a real review of the evidence supports a conclusion that the collision was caused by the appellant’s vehicle crossing into the path of the first respondent’s vehicle – whether there is any basis to conclude the primary Judge erred in any of the factual findings or in the application of the relevant law – whether the primary Judge’s conclusions should be overturned

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Lee v Lee (2019) 266 CLR 129; [2019] HCA 28, cited

COUNSEL: M Grant-Taylor QC, with M O’Sullivan, for the appellant D O’Driscoll QC for the respondents

SOLICITORS: Everingham Lawyers for the appellant Barry.Nilsson for the respondents

[1] FRASER JA: I agree with the reasons for judgment of Boddice J and the orders

proposed by his Honour.

[2] BODDICE J: On 6 May 2020, the primary Judge dismissed the appellant’s claim

for damages for negligence in respect of personal injuries sustained when the motor vehicle the appellant was driving and a motor vehicle driven by the first respondent collided on 2 July 2015.

[3] The appellant appeals that decision. At issue is whether the primary Judge erred in

finding that the collision occurred as a result of the negligence of the appellant in crossing into the lane in which the first respondent was travelling when it was unsafe to do so and without giving way to the first respondent’s motor vehicle. Background

[4] On 2 July 2015, shortly before 7.20 am, the appellant left Bribie Island to travel to

his workplace at Caboolture. He was driving a Mazda utility, with a silver tray.

[5] About an hour earlier, the first respondent left Daisy Hill to travel to a work site on

Bribie Island. He was driving a white Mitsubishi Pajero wagon.

[6] At about 7.40 am on 2 July 2015, there was a collision between the utility and the

Pajero. The impact caused the utility to become airborne before coming to rest in a ditch along the northern side of the road corridor, almost parallel to the roadway. The Pajero spun in an anti-clockwise direction, before coming to rest across the westbound lane of the roadway.

[7] At trial, which was limited to the issue of liability, it was accepted that the collision

was not caused by a mechanical defect in either vehicle. It was also accepted that the first respondent owed a duty of care to other road users including the appellant. Pleadings

[8] In his amended statement of claim, the appellant alleged that the collision occurred

after the first respondent veered left off the road into the gravel before immediately turning back onto the road, over-correcting and driving at a 45 degree angle towards the appellant’s utility and, further and alternatively, by allowing the Pajero to drift or travel over the centre line into the utility’s lane.

[9] By their further amended defence, the first respondent, and the second respondent as

insurer of his vehicle, denied that the collision occurred in such circumstances. The respondents pleaded that the utility veered off onto the left shoulder before veering back at an angle into the lane occupied by the Pajero; that the first respondent attempted to take evasive action by turning his Pajero to the right but could not avoid a collision; and that the front right corner of the utility collided with the front left corner of the Pajero whilst wholly within the lane occupied by the Pajero.

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Appeal

[10] The appellant’s grounds of appeal contend errors of law and fact in the primary

Judge’s findings. Those errors included failures to consider photographic evidence of the damage to the vehicles, failures to accept versions given by witnesses consistent with the appellant’s pleaded case and rejecting the evidence of witnesses without giving adequate reasons and where those versions were consistent with the photographic evidence.

[11] The appellant contends that a proper assessment required reference to and analysis

of evidence independent of the parties. Such an assessment supported a conclusion that the collision was caused by the first respondent turning right into the path of the appellant’s vehicle. Alternatively, the assessment supported a conclusion that the primary Judge’s findings to the contrary were against the weight of the evidence and should be set aside with an order that there be a new trial.

Evidence

[12] At trial, evidence was given by the appellant, the first respondent and a number of

other drivers travelling along the roadway at the time of the collision. Those drivers were Lynette Walsh and Graeme Creighton, travelling in the same direction as the appellant; and Kylie McGinn, Wendy Spicer and Katrina Hardy, travelling in the same direction as the first respondent.

[13] There was also extensive photographic evidence tendered at the trial.

[14] The appellant gave evidence that he remembered leaving his house on the morning

of 2 July 2015. He was driving his utility. The appellant said he would usually get to work at about 7.50. The collision occurred about two minutes’ drive away from his place of work. The appellant said he next recalled a person helping him in his motor vehicle after the collision had taken place.

[15] Graeme Creighton gave evidence that he was travelling in his motor vehicle directly

behind the appellant’s utility. On the basis of notes and memory, he estimated the time was about 7.45 in the morning. Creighton said he observed a utility about 100 yards in front of his vehicle. His attention was then briefly distracted to a farmhouse on the left hand side of the road.

[16] Creighton said when he again looked ahead, he saw a white Pajero travelling

towards him with its two left hand wheels off the road. The Pajero then came back onto the road at an angle before colliding with the utility. The Pajero spun around, but stayed on the roadway near the centre of the road. The utility was forced backwards and travelled off the right hand side of the road at great speed.

[17] Creighton said that, when he approached the scene of the collision, he heard the

Pajero driver open his door and stumble onto the road. He also heard a person in the utility stating he was trapped and wanting help. Creighton immediately went to the utility. He remained with the driver until the arrival of an ambulance.

[18] Creighton said, when he saw the Pajero come across back towards the centre of the

road, he observed the utility in front of him was in the same lane as Creighton although, due to the roadway not having a centre line, Creighton did not know if the utility was over the line or if the Pajero was over the centre line. The vehicles

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collided at approximately the centre of the roadway. Creighton accepted there was a dividing line on the road but said the impact area was hidden by the Pajero.

[19] Creighton drew a diagram depicting the Pajero driving towards the centre of the

road and the utility driving in its correct lane towards Caboolture, just before impact. The roadway was straight at the point of collision. Creighton did not recall any vehicle being in front of the Pajero. He did not see any movement of the utility prior to the collision. Creighton did not accept that his vision of the Pajero was blocked by other vehicles. His eyes were focused on the Pajero because he saw it was off the road.

[20] Creighton accepted he had no independent recollection. He was “going directly off

his statement” given at the time. He had reviewed his statement.

[21] Creighton accepted he gave a statement to police. In that statement, he estimated he

was 100 metres behind the utility at the time of the collision; and said he did not know if the utility was on the wrong side of the road prior to the collision. Creighton did not see the utility sharply veer to its right but said if the utility was on the wrong side of the road prior to the collision he would not have seen it because he was looking at a farmhouse adjacent to the road. There was one or two seconds between turning his attention back to the road and the collision.

[22] Creighton accepted that, at the point of impact, the utility was in front of his vehicle.

Creighton said the utility was in its normal position. The Pajero was angled across the road. Creighton did not accept that, from his position, the Pajero would have been further away from him and from his vision than the utility but said “I’m saying I’m not offering any more information, because what I’ve offered is correct, and I did not see the utility, due to I was looking at the farmhouse on the left”.1

[23] The first respondent gave evidence that on the morning of 2 July 2015 he was

travelling along a flat, straight section of dual carriageway road when a utility travelling in the opposite direction travelled sharply across from the left hand side of the road, before striking the front of his Pajero, which was travelling in its lane.

[24] The first respondent said that, just prior to the collision, he had observed a couple of

vehicles in front of him and a couple of vehicles behind him. The vehicle directly in front of him was approximately four car lengths ahead. The first respondent said he was travelling in the confines of his own lane.

[25] The first respondent said the utility came towards his vehicle so quickly he did not

have time to react. His vehicle was situated to the left of the centre white line at the instant of impact. The utility was in his lane and struck his vehicle semi-head on causing the back of his vehicle to go up before spinning anti-clockwise to about a 45 degree angle and dribbling back in between both lanes. The utility travelled off the roadway and ended up in the ditch beside the road.

[26] In cross examination, the first respondent accepted the collision occurred very

quickly. He denied the sun was in his eyes. When he gave his statement to police about one month after the collision, he mistakenly believed the speed limit in the area was 80 kilometres per hour. He did not accept that, as the speed zone was 100 kilometres per hour, he was travelling at 100 kilometres per hour at the time of

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the collision. The motor vehicle in front of him was travelling at roughly 80 kilometres per hour at the time of the collision.

[27] The first respondent did not accept that, just prior to the collision, the left hand

wheels of his vehicle had travelled onto the side of the roadway or that he had turned sharply right. The first respondent was driving straight in his laneway. The utility crossed over into his lane and struck his vehicle on the first respondent’s side of the roadway. The first respondent said he remained in his lane the entire time, until after the collision spun his vehicle round. The first respondent accepted that the back of his vehicle became airborne at the point of collision.

[28] The first respondent said the utility struck the middle of his Pajero on a very sharp

angle. The first respondent said the front of the appellant’s vehicle “smacked on an – on an angle in – right in the middle of mine, sort of where my numberplate is …”.2 He accepted photographs depicted the front driver’s side corner of the

appellant’s vehicle as taking most of the damage.3 The first respondent said the

collision was a semi-head on collision. The first respondent accepted that in his statement to police, he said the front passenger side of the utility hit the driver’s side of his vehicle.

[29] The first respondent could recall the other driver screaming out. When the first

respondent first left his motor vehicle, he collapsed on the ground in extreme pain. He said “what happened?” once or twice. The first respondent said he was in shock and did not understand what could have caused the collision as the utility “has just come straight across and hit me”.4 The first respondent “wanted to know what had

happened and what caused him to cross over the side and strike me that fast. That’s what I wanted to know, what happened”.5 He said he remembered the impact of the

collision and the other vehicle turning across into his lane.

[30] Lynette Walsh gave evidence that she was travelling towards Caboolture on the

morning of 2 July 2015 when she saw, in the driver’s side mirror, a utility pull out suddenly as if it was going to pass her vehicle. She described the angle of the vehicle as not straight and said the pace of the manoeuvre was “pretty quickly”.6

She was travelling at 100 kilometres per hour. There were no vehicles in front of her vehicle.

[31] Walsh said she looked up in her rear vision mirror and saw two cars collide behind

her. The vehicles went up in the air before coming back down and spinning around. They collided “sort of in the middle of the road”;7 about a car length behind her.

The utility ended up on the other side of the road on the grass. The other vehicle remained on the road “sort of in the middle of the road across it a bit”.8

[32] In cross examination, Walsh accepted her observations were principally directed

towards the utility. She did not make any observations of the other vehicle prior to the collision. She recalled the utility as being a dark grey colour. She did not remember how long the utility had been behind her vehicle. Walsh accepted she

2 AB128/18. 3 AB128/25. 4 AB135/38. 5 AB135/40. 6 AB152/30. 7 AB152/44. 8 AB153/20.

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could not say that the utility ever moved over the dividing line but said it was pointed towards the middle of the road. To the best of her recollection, the collision occurred somewhere over the dividing line between the two lanes.

[33] Walsh agreed her observations of the utility were from her driver’s side outside

mirror. She saw, from that side mirror, the utility perform a sharp manoeuvre to the right. At no stage did she see the Pajero do anything. Until the two vehicles collided, she had had no observation whatsoever of the other vehicle. Walsh accepted there was no opportunity for the utility to have successfully overtaken another vehicle.

[34] Kylie McGinn gave evidence she was travelling in her black Ford Focus towards

Bribie Island, behind a small silver Honda SUV, in front of which was a green Pajero. The weather as fine. McGinn had no issue with sunlight affecting her visibility, although she was wearing sunglasses and had her sun visor down.

[35] McGinn said she was travelling at 100 kilometres per hour when, about five car

lengths in front, she observed a collision between two vehicles. At no stage in the five to ten seconds before the collision did she see the Pajero change course at all. She did see the other vehicle appear to swerve quickly before crossing onto her side of the roadway and striking the Pajero head on. The collision occurred on her side of the roadway. That vehicle flew into the air and landed off her side of the roadway. The Pajero spun around and landed on the other side of the road.

[36] In cross examination, McGinn could not recall a white Mazda 2 hatch travelling in

front of her at the time of the collision. She accepted the collision occurred very quickly and that there was nothing about the behaviour of the vehicles in front of her that made her think a collision was about to occur. McGinn said, just as the collision took place, she was looking at her speedometer and that, in the split second she looked up from her speedometer, she saw the collision.

[37] McGinn did not accept the motor vehicle in front of her blocked her vision to any

extent. She saw the collision in full. McGinn saw the other vehicle swerve and hit the Pajero. She estimated the silver SUV was a couple of car lengths in front of her vehicle, with the Pajero in front of that vehicle. Her vehicle was approximately 100 metres behind the Pajero.

[38] McGinn said she specifically recalled seeing the other vehicle coming into her lane.

She did not see it until the occurrence of the collision. She described its movement as a sharp manoeuvre. It was not an overtaking manoeuvre. Her recollection was that it struck the front end of the Pajero, more on the driver’s side. After the collision, McGinn observed the driver of the Pajero on the side of the road. He was in pain and calling out “what happened?”, amongst other things.

[39] Katrina Hardy gave evidence that she was driving her Mazda 2 hatchback towards

Bribie Island, when she observed the collision. The time was about 7.40 in the morning. Visibility was very clear. There was no issue with sunlight. In front of her was a white Pajero. She did not recall any vehicles immediately behind her vehicle. She was travelling at approximately 90 kilometres per hour, approximately two to three car lengths behind the Pajero.

[40] Hardy said she did not see the Pajero move at all within the lane. She did not see

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she observed a utility enter her lane of traffic before striking the Pajero. The utility veered sharply to the right hand side of the road. Hardy first saw the utility almost immediately before the collision. The utility hit the Pajero head on in the centre of the two lanes. The utility then left the road, coming to rest on the northern side of the roadway. The Pajero spun around in the middle of the road before coming to rest in the centre of the two lanes. Her recollection was that one vehicle was travelling in front of that utility.

[41] In cross examination Hardy did not accept that, shortly prior to the collision, the

Pajero was being followed by a silver Honda. She was positive her vehicle was travelling directly behind the Pajero. Hardy accepted that, after she left her vehicle, she saw the driver of the Pajero outside his vehicle. He was in obvious pain and called out “what happened?” more than once.

[42] Hardy said that, immediately prior to the collision, the Pajero was in the middle of

its lane travelling about a metre from the white centre dividing line. She agreed the point of collision between the two vehicles was the centre of the roadway but said the Pajero was not over the centre line at the time of impact. The utility crossed the dividing line. Hardy accepted that, immediately prior to the collision, the utility had been travelling in a normal fashion and did not appear to be speeding. Hardy had the Pajero under observation all the time. At no stage did the Pajero move its left wheels off the roadway and then overcorrect, cross the roadway and strike the utility.

[43] Hardy said, at the time of the collision, the utility made a sharp manoeuvre to the

right. The Pajero was driving straight ahead. She did not see the Pajero turn to its right at all. The collision did not take place at the centre of the two lanes, it was at the centre of the east bound lane. The movement of the utility was too sudden and sharp to be overtaking that vehicle.

[44] At trial, a statement was tendered from Wendy Spicer, dated 1 September 2015.

That witness was unable to give evidence for health reasons. In that statement, which was provided to police, Spicer said she was travelling towards Bribie Island in a silver Honda CRV at about 80 to 90 kilometres per hour, when she observed a collision between a Pajero vehicle travelling in front of her and a utility. She said the Pajero driver appeared to be drifting over in his lane towards the centre line. She did not know if he had actually crossed the lane. She next heard a very loud bang and saw the utility flying off to her left, towards the northern side of the roadway. The Pajero spun around and ended up across the centre line. She described the weather as fine, dry, with visibility okay. The sun was a bit low but not enough to cause any problems.

[45] At trial, there was tendered a notebook entry, recorded by police on 2 July 2015, of

a version given by Spicer at the scene. That version was in the following terms: “I was travelling behind the Pajero. I was heading in a easterly direction to Bribie Island. All I was heard was a big bang. I didn’t see anything lead up but I have seen the ute go up in the air and bits of pieces everywhere. The ute was travelling west.”

[46] Barry Griffin also gave evidence. He had attended the scene at around 9 o’clock as

a member of the Burpengary Forensic Crash Unit on the morning of 2 July 2015. The Pajero was located in the middle of the road. He described it as being in the

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west bound lane facing a generally north easterly direction across that lane, at about a 45 degree angle. The utility was off the road, on the northern side, facing in a general westerly direction. Both vehicles had sustained heavy impact damage. He was advised that neither vehicle had been moved from its resting position.

[47] Griffin said that his examination revealed a number of gouge marks on the road’s

surface in the east bound lane. Those gouge marks would represent an area of impact by a vehicle with the road. Those marks would be caused by parts of the undercarriage, which connect with the roadway as part of a downward force. He also observed a scrape mark on the roadway. Debris from the vehicles was scattered across both lanes.

[48] In cross examination, Griffin accepted he observed a major kink on the right hand

side of the roof of the utility, above the driver’s seat, indicating the vehicle chassis had been bent at a sharp angle to the passenger side of the vehicle. The speedometer of the utility was stuck at 80 kilometres per hour. Most of the damage to the front of the Pajero was to the front passenger corner. There was no obvious damage to the driver front mud guard or along that right hand side of the vehicle. There were no tyre marks evident anywhere on the roadway to indicate any braking or other movement of the vehicles.

Decision below

[49] The primary Judge accepted as accurate and reliable the accounts given by the first

respondent, Walsh, McGinn and Hardy as to the driver of the utility having sharply veered to the right into the Pajero’s line of travel. The primary Judge found the gouge marks were consistent with the collision have occurred at about that point, which was entirely in the lane occupied by the Pajero. The primary Judge accepted that the collision had occurred on the Pajero’s side of the dual carriageway.

[50] In coming to those conclusions, the primary Judge accepted there were

imperfections in aspects of those witnesses’ accounts and, further, that the photographs depicted damage primarily to the passenger side of the Pajero but did not consider those matters sufficient to call into question the accuracy and reliability of the eye witness accounts of the circumstances of the collision.

Appellant’s submissions

[51] The appellant submits that an analysis of evidence independent of the parties

supports a conclusion that the collision was caused by the Pajero crossing into the path of the utility. That evidence included Creighton’s account of the collision. The primary Judge’s reference to Creighton giving testy and evasive answers, in circumstances where his lack of recollection greatly diminished his evidence, failed to have regard to the whole of that witness’ evidence and, in particular, his direct evidence of the Pajero having turned right across into the west bound lane and of the collision having taken place approximately at the centre of the road. It was unreasonable to discount that evidence, particularly in circumstances where evidence of the Pajero turning right was consistent with the pleaded case and the damage to the vehicles.

[52] The appellant further submits that Creighton’s evidence was supported by Spicer’s

evidence to the effect that she observed the Pajero drifting in its lane just before the collision. The primary Judge’s observation that Spicer had given and signed a short handwritten statement on the day of the accident, to the effect that she did not see

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anything leading up to it, was not supported by the evidence. There was no evidence as to the circumstances giving rise to the notebook recording and the police officer who took that statement was not called to give evidence at trial. The typed statement subsequently provided by Spicer was taken by police and contained an account consistent with Creighton’s evidence.

[53] The appellant submits that the primary Judge made no reference to the fact that the

first respondent acknowledged when giving a statement to police, that the front passenger side of the utility hit the driver’s side of his vehicle and failed to give proper regard to the fact that the damage to the vehicle was consistent with the first respondent having turned to the right.

[54] Walsh was unable to say where the collision occurred and could not say that the

utility ever moved to the right over the dividing line. The best she could say was that collision occurred somewhere over the dividing line between the two lanes. She did not make any observation of the Pajero.

[55] The appellant submits that Hardy’s recollection was plainly erroneous as she

recalled her vehicle as travelling directly behind the Pajero which was an order inconsistent with the unchallenged evidence of McGinn and Spicer. In any event, her initial version at trial was that the accident occurred in the centre of the two lanes which she later changed to the centre of the lane.

[56] Finally, the appellant submits that, in circumstances where there were conflicting

accounts, it was highly relevant to consider the photographic evidence. That evidence was supportive of damage having been occasioned in a manner consistent with the Pajero having crossed into the utility’s lane. There was also no evidence that supported a conclusion that the gouge marks on the road surface were caused by the initial collision or by the Pajero as opposed to the utility.

Respondents’ submissions

[57] The respondents submit that there is no basis for this Court to interfere with the

primary Judge’s findings of fact. Those findings were neither glaringly improbable nor contrary to compelling inferences. It was open to the primary Judge to accept the evidence of the first respondent, Walsh, McGinn and Hardy as reliable and credible. There was also a sound basis to reject the evidence of Creighton, having regard to his admitted lack of independent recollection.

[58] The respondents submit that, whilst there were differences in the recollections of

Walsh, McGinn and Hardy, none of those witnesses deviated from the central aspect of their evidence, namely, that the utility sharply crossed the dividing line into the Pajero’s lane just prior to the collision.

[59] The respondents submit that the evidence of the first respondent, Walsh, McGinn

and Hardy was consistent with each other and the photographic evidence. By contrast, Creighton’s evidence was internally inconsistent and was not consistent with the evidence of other observers of the collision. The primary Judge gave compelling and sufficient reasons for rejecting Creighton’s recollection of events. Further, the primary Judge correctly found that Spicer’s evidence was equivocal. Her statement was inconsistent with the handwritten record made at the scene.

[60] The respondents submit that the photographic evidence did not provide a basis to

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to the type of damage to be suffered in such a collision. Whilst the primary Judge did have regard to the location of the gouge marks, the primary Judge properly found that their location rendered it more likely that the collision between the two vehicles had occurred at about the point where the gouge marks appeared on the road, namely, entirely within the east bound lane.

[61] Finally, the respondents submit that any inconsistency in the pleadings provided no

basis to reject the first respondent’s evidence. The pleading was prepared by the second respondent. There was no evidence it was approved by the first respondent. Consideration

[62] In order to succeed, the appellant must establish that the primary Judge has erred in

fact or law. This Court is bound to conduct a “real review” of the evidence and of the primary Judge’s reasons for judgment to determine whether the primary Judge has so erred.9

[63] Whilst the appellant identified an error in paragraph 3 of the primary Judge’s

reasons as to the order in which particular witnesses’ vehicles were travelling on the day in question, that error cannot be said to have been productive of an error of fact or law, as the primary Judge correctly and accurately recounted the evidence given by each of those witnesses.

[64] A real review of the evidence as a whole supports a conclusion that the primary

Judge was correct in concluding that the accounts given by the first respondent, Walsh, McGinn and Hardy, as to the circumstances of the collision, were reliable and accurate. Each gave an account which was internally consistent and consistent with each other as to the central issue, namely, that the collision occurred in the lane occupied by the first respondent’s Pajero and after the utility had veered sharply into that lane. That account was not diminished in cross examination.

[65] Although Hardy, in evidence in chief, gave, in response to a question “and where

did the collision occur?” an answer that it “hit the Pajero head on in the centre of the two lanes”, that response must be viewed in the context of her responses in cross examination, when the following exchange took place:

“Question: Now, you estimate that the point of collision between the two vehicles was the centre of the road. Is that correct? … Yes. Question: Which would place it over the dividing lane; correct? … Sorry. I missed that.

Question: Which would place it over the centre line? … The vehicle wasn’t over the centre line at the time of impact.

Question: Well, it’s – I thought you a moment ago said that the point of collision was in the centre of the road? … In the centre of the lane he was travelling in.

Question: Well, I thought you were very specific about it a moment ago. It was in the centre of the road over the dividing line? … No, not over the dividing line.

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Question: You were asked the question by my learned friend just earlier in respect to where the collision was. And you said “hit the Pajero head on in the centre of the two lanes”.

Assuming it was in the centre of the lanes, that would indicate the point of collision was, as I said, over the dividing line.

Witness: The utility crossed the dividing lines.

Question: Well you see I put it to you that at no stage did the utility cross the dividing line? … No. That’s incorrect.”

[66] A consideration of the evidence given by Hardy as a whole amply supports a

conclusion that that evidence was consistent and to the effect that the collision occurred in the lane occupied by the Pajero, after the utility had crossed the dividing line into its path.

[67] Creighton’s account was inconsistent with the accounts of those eye witnesses and

given in circumstances where he accepted he had no independent recollection of the collision. Against that background, the primary Judge correctly found Creighton’s account to be greatly diminished in respect of its reliability and accuracy.

[68] Similarly, there was a sound basis to conclude that Spicer’s recorded account, in the

statement given some two years after the collision, was inconsistent with the account recorded in the notebook on the day of the collision. In any event, the account in the police statement did not provide any evidence of the Pajero having crossed the centre line in to the path of the utility.

[69] There was also no basis upon which the primary Judge could properly be required to

reject the first respondent’s evidence by reason of the pleaded circumstances of the collision in the respondents’ further amended defence. The first respondent gave evidence he had not seen the appellant’s pleading and there was no evidence he approved the contents of that further amended defence.

[70] Finally, photographic evidence depicting damage to the vehicles was not of a nature

which could properly require the primary Judge to reject the accuracy and reliability of consistent eye witness accounts as to the circumstances of the collision. There was no expert evidence as to the nature of damage to vehicles in such circumstances. In any event, the photographic evidence depicted damage to the centre bumper bar area of the Pajero, at a point entirely consistent with the first respondent’s account of the utility having struck his vehicle, in approximately the middle of its front.

[71] The primary Judge’s finding, as to the location of the gouge marks being consistent

with damage from the undercarriage of the Pajero gouging the roadway at the point of impact, was made in the context of a submission by the appellant that the gouge marks were made by the utility landing on the road after the collision. That finding was an inference reasonably open on the whole of the evidence. In any event, even if the evidence could be said to be neutral on this point, that neutrality did not detract from an acceptance of the eye witness accounts of the first respondent, Walsh, McGinn and Hardy as reliable and accurate.

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Conclusions

[72] A real review of the evidence given at trial and of the primary Judge’s reasons for

judgment supports a conclusion that the collision was caused by the appellant’s utility crossing the dividing line into the path of the first respondent’s Pajero.

[73] There is no basis to conclude that the primary Judge has erred in any of the factual

findings or in the application of the relevant law. The factual findings were consistent with the evidence accepted as reliable and consistent with the available inferences to be drawn from that accepted evidence.

[74] As no error of law or fact has been identified, and the primary Judge’s conclusions

are consistent with the accepted evidence and the rational inferences to be drawn from that accepted evidence, there is no basis upon which this Court should overturn the primary Judge’s conclusions.

Orders

[75] I would order:

(1) The appeal be dismissed.

(2) The appellant pay the respondents’ costs of the appeal, to be assessed on the standard basis.

[76] BROWN J: I agree with the reasons for judgment of Boddice J and the orders

proposed by his Honour.

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to write automobile liability, physical damage, or collision insurance, shall extend to temporary substitute motor vehicles as defined in the applicable insurance policy and

Consequently, in addition to measures currently in place to verify proof of insurance, the Department will consult with the insurance industry on the feasibility of a

coverages under the bodily injury liability insurance and property damage liability insurance coverages on such motor vehicle and the limits of the uninsured motorist coverage

{¶ 9} The trial court concluded, “Since liability insurance need only cover motor vehicles operated on highways and, since uninsured motorist coverage is intended to

6.1 Tryggingamiðstöðin can demand reimbursement from the policyholder and/or the driver, in the event that provisions in traffic laws or regulations have led Tryggingamiðstöðin to

thaliana grown under optimal conditions primary root (PR) length of SL mutants and wild-type plants were similar, but a positive effect of racGR24 treatment was present