Evans v Cassells & Anor [1990] QSCFC 103

Jo02\o '1 IN THE SUPREME COURT OF QUEENSLAND FULL COURT BEFORE : iViSED CGPI-E % Court Reporti 113 Duica: ( pate:^7/// /So * ‘"* 1 *** —1 ' —-- m-ir-rn ii.i«»i.ii. I Ml. .11 No. 63 of 1989 rt 7C//cZ Mr. Justice Thomas Mr. Justice Moynihan Mr. Justice Ambrose BRISBANE, 8 NOVEMBER 1990 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Coux-t Reporter , Court Reporting Bureau.) BETWEEN: / GARY RAYMOND EVANS Appellant ( Plaintiff ) -and- JOHN CASSELLS Respondent ( Defendant ) -and- FIRE AND ALL RISKS INSURANCE COMPANY LIMITED Respondent (Defendant by election) JUDGMENT 40 50 MR. JUSTICE THOMAS: This appeal seeks to set aside the learned trial judge's findings of contributory negligence, the apportionment of contributory negligence, and the quantum of damages assessed by His Honour. Before us the appeal in relation to quantum of damages was not pursued. The issue upon the appeal concerns His Honour's resolution in the first instance of questions of credibility and the inferences which His Honour drew from the evidence that he accepted. In the event, His Honour accepted the evidence of the defendant (Mr. Cassells) and of the defendant's wife. His Honour's acceptance of that evidence was based on both objective and subjective appreciations. Indeed, His Honour 60 Govt. Printer, Qld. 40 50 60 1 [1990] QSCFC 103 -- 1 of 5 -- 10 20 30 40 50 expressed a number of objective criteria supporting his preference, and I do not consider that those factors have been effectively attacked. His Honour gave reasons at some length. In the event the defendant's car ran into the back of the plaintiff's car when the plaintiff slowed or stopped preparatory to making a right- hand turn off the highway. In order to understand the preceding events it is appropriate to commence with the following passage from His Honour's reasons: "As Mr. Cassells travelled southbound, he was very conscious of the fact that two roads joined the highway on his left. One of these allowed vehicles to turn right and to travel northbound along the highway, the other allowed vehicles to turn left and join the highway travelling south. These latter vehicles entered first into a merging lane which converged with the southbound lane on the highway only shortly before the Hicks Street junction. At Hicks Street the highway was simply one lane north and one lane south. Mr. Cassells had driven over this section of road on many occasions. He was concerned that vehicles coming in on his left in the merging lane had a tendency to want to race ahead of vehicles travelling along the highway and consequently as he travelled through this area he gave protracted attention to the possibility of vehicles emerging on his left." In the event Mrs. Cassells became aware at a later stage that the plaintiff, who was driving the vehicle in front of them along the highway, had stopped, or almost stopped, preparatory to doing a right-hand turn from the highway at that point, namely where Hicks Street leaves the highway to the right . His Honour's finding of negligence against the defendant was expressed in this way: "There were, in fact, no vehicles coming in on his left and he was being over-cautious about the possibilities of such vehicles coming into the highway. On the other hand, he was well aware that there was a vehicle on the roadway ahead of him, but he diverted his attention from this vehicle for an unduly long time." That was the basis of the finding of negligence against 60 10 40 50 60 Govt. Printer, Qid. 2 -- 2 of 5 -- the defendant. That finding was based upon his acceptance of the evidence of Mr. and Mrs. Cassells' own evidence. Equally, His Honour's finding of contributory negligence was based upon the same evidence. His findings in this respect are as follows: "So far as the issue of contributory negligence is concerned, I have already indicated that I accept the evidence of Mrs. Cassells. I accept that she was looking ahead as her husband drove along the highway and that she did not at any time see an indicator light flashing on the plaintiff's vehicle. I am satisfied that the first indication that was given by the plaintiff's vehicle of any alteration in its mode of travel was the application of its brake lights. I am satisfied that the indicator lights were not turned on. In those circumstances, the plaintiff showed scant regard for his own safety in suddenly slowing in an area where the speed limit was 100 km/h. All witnesses refer to a further vehicle which was in front of Mr. Evans' vehicle. Both sides agree that this vehicle slowed or stopped at about the intersection. Neither side suggests that this vehicle in any way forced Mr. Evans to make an abrupt stop. Indeed Mrs. Cassells says that that vehicle swung into Hicks Street and had cleared the highway before any impact occurred. Consequently, there is no basis on the evidence which I accept for the view that this vehicle caused Mr. Evans to brake . The turn into Hicks Street is not an easy one to take. It involves turning through more than 90 degrees in the plaintiff's line of travel. It is a turn that is awkwardly placed on the highway because immediately before the point of turning, two lanes converge, and the drivers in either lane might be giving little attention to the possibility of vehicles turning into Hicks Street. Consequently, in my opinion, any driver intending to make the right-hand turn into Hicks Street, conscious of the need to take care for his own safety, would be very careful to give ample warning, not only of his intention to turn right, but of his intention to reduce speed. As I accept Mrs. Cassells' evidence, it is clear that the plaintiff simply did not do either of things before reducing the speed of his vehicle. In these circumstances the plaintiff must bear substantial responsibility for his own injuries. I apportion liability equally." Mr. Jones Q.C., who appeared for the appellant, endeavoured to attack the reliance His Honour placed upon Mrs. Cassells' evidence. His submissions included that she Govt. Printer, Qld. 1 10 20 30 40 50 60 3 -- 3 of 5 -- 1 ] 10 20 30 40 50 had not seen the vehicles in front of her actually slow down or stop, and that she had not seen the brake lights of the plaintiff's vehicle. He also submitted that she had not looked for indicator lights on the plaintiff's vehicle, and he placed some reliance upon the following concession in cross-examination, namely: "Isn't it the case that really all you can say is you never saw them but you can't say for sure that they weren't on?-- That's right." That, in its context, was a concession, that she was not positive that the brake lights had not come on, but it is not destructive of her evidence. What is required is probability, not certainty, and Mrs. Cassells adhered to her view. Her observations were made over quite a lengthy and relevant part of the journey. The thrust of her evidence was that she had observed the two cars that were in front of the vehicle that her husband was driving. She said that no signals were given by the defendant's vehicle, and that when she realised that vehicle was stopping she called out to her husband that the car was stopping. She said that she had continued to watch the defendant' s vehicle that was ahead of her up to the point when it collided, and that she had not seen any signalling. Equally, she had not observed any brake lights. Now, in those circumstances, there is enough evidence for His Honour to accept and act upon that the relevant trafficators had not been activated at any material time before the accident. Having regard to the circumstances in evidence, the vehicle desiring to do the manoeuvre that the plaintiff was doing ought to have given adequate warning to following traffic of his intention to do such an unexpected manoeuvre. 10 2( 30 40 50 60 60 Govt. Printer, Qid. 4 -- 4 of 5 -- Accordingly, I do not accept the submission that there was no evidence upon which His Honour could so find. Not only am I unpersuaded that His Honour erred in reaching the conclusions that he did; I may say that I agree entirely with His Honour's findings and observations. As to the argument that the apportionment was unduly harsh against the plaintiff, I do not find it necessary to extend any of the latitude to the discretion of the trial judge that Pennington v. Norris directs an appeal court to extend. I also agree with the apportionment that His Honour made in the particular case. Accordingly, I can find no merit in the appeal, and I would dismiss it. MR. JUSTICE MOYNIHAN: I agree. There was ample evidence, particularly from Mrs. Cassells, and the whole flavour of her evidence from which His Honour was entitled to conclude that had there been a timely warning of the intended stopping or slowing she would have observed it. As I said, I agree with what His Honour said about it. MR. JUSTICE AMBROSE: I agree. I have nothing useful to add. MR. JUSTICE THOMAS: The appeal will be dismissed with costs. i 10 20 30 40 50 60 Govt. Printer, Qid. 5 -- 5 of 5 --