Bugeja v Jarrett

1. [1]

   GLEESON JA: I agree with Davies J.

2. [2]

   EMMETT AJA: This appeal arises out of a motor vehicle collision that occurred in Victoria Road, Drummoyne, as a result of which the respondent suffered personal injury. The collision occurred when a motor vehicle owned by the second appellant and driven by the first appellant pulled out of the driveway of a “McDonald’s” restaurant into Victoria Road. A vehicle driven by a third party, Mr Lopez, collided with the rear of the appellants’ vehicle and the respondent’s vehicle collided with the rear of vehicle driven by Mr Lopez. There was a dispute as to which collision occurred first in time.

3. [3]

   The respondent sued the appellants in the District Court. A judge of the District Court found that the first appellant was negligent in failing to keep a lookout to see the respondent’s approach but also found that the respondent contributed to the collision to the extent of 15%. The damages suffered by the respondent as a consequence of the collision were agreed and the primary judge entered judgment for the respondent in the sum of $616,250.

4. [4]

   The appellants then appealed to this Court from the verdict and judgment entered in the District Court. The appellants contended that the primary judge erred in a number of respects in concluding that the first appellant was negligent. I have had the advantage of reading in draft form the proposed reasons of Davies J for concluding that the collision was not the result of any negligence on the part of the first appellant and that, if it was necessary to do so, responsibility would have been apportioned 65% to the respondent and 35% to the appellants. For the reasons proposed by his Honour, I agree with his conclusions and the orders proposed by him.

5. [5]

   DAVIES J: On 30 March 2010 the respondent was injured in a motor vehicle accident involving three motor vehicles on Victoria Road, Drummoyne just east of the Gladesville bridge. The accident happened at about 8:10am with the motor vehicles concerned travelling in a westerly direction along Victoria Road. It was raining and the road was wet.

6. [6]

   The respondent alleged that she was driving behind a Hyundai Lantra which she had followed since she had been stopped behind it at traffic lights at the intersection of Lyons Road and Victoria Road. At a point outside McDonald’s on the left hand side of Victoria Road the respondent asserted that the appellants’ Holden Rodeo ultility came out from the McDonald’s driveway, moved in front of the Hyundai Lantra and caused that car to brake suddenly which in turn required the respondent to brake hard. However, the tyres of the respondent’s car lost traction on the wet road and she struck the rear of the Hyundai which had already struck the utility that came out of McDonald’s.

7. [7]

   The first appellant was the driver of the utility and the second appellant was the owner of that vehicle.

8. [8]

   The appellants’ case was that the first appellant had driven out of the McDonald’s driveway after looking to his right and ascertaining that there were no cars that prevented him crossing into the middle lane of Victoria Road. He started to travel down the hill when he heard a bang and subsequently felt a small thud into his vehicle.

9. [9]

   The appellants called in their case the driver of the Hyundai, a Mr Lopez. Mr Lopez said, contrary to the respondent’s assertion that his car had been in front of hers at the traffic lights at Lyons Road, that he had turned left into Victoria Road at Lyons Road and moved over into the middle lane. He drove down past McDonald’s but he was slowing down because the traffic was stopped at the lights at the intersection at the bottom of the hill just before the Gladesville Bridge. Mr Lopez said that he had stopped behind the utility and five, six or seven seconds later he was hit from behind. The force of that impact pushed him into the utility.

10. [10]

    The proceedings brought by the respondent were heard by Judge Levy SC in the District Court over six days between 24 October and 1 November 2016. At the beginning of the fourth day of the trial the parties announced that they had agreed on the quantum of the claim leaving only the issue of liability to be determined by the judge. The agreement was in the sum of $725,000 plus costs.

11. [11]

    The primary judge found a verdict and judgment for the respondent on the claim: Jarrett v Bugeja [2016] NSWDC 309. He found, however, that the respondent was contributorily negligent and his Honour apportioned blame for the accident 85% to the appellants and 15% to the respondent. The result was a verdict and judgment for the respondent in the sum $616,250.

12. [12]

    The appellants by a further amended notice of appeal now appeal on the following grounds:

The judgment of the primary judge

1. [13]

   After noting some preliminary matters, the primary judge first recorded the respondent’s version of events. The primary judge said that the respondent was driving in the middle westbound lane downhill on Victoria Road in heavy rain with her windscreen wipers in operation. As she approached the exit driveway of the McDonald’s parking lot on her left she saw the appellants’ utility drive out of those premises across the kerbside lane and into a position about two to three car lengths in front of the vehicle which the respondent had been following down the hill. The respondent said that she noticed the brake lights of the vehicle in front of her become activated. She applied the brakes on her own vehicle but could not feel any traction of the tyres. She pressed hard on the brakes but felt that her vehicle was sliding with unstable steering. The respondent said that the vehicle in front of her did the same as she had done and the front of that vehicle struck the rear of the appellants’ vehicle following which her vehicle slid into Mr Lopez’s vehicle in front.

2. [14]

   The primary judge then set out in full a statement that the respondent had given to the police on the evening of the accident.

3. [15]

   The primary judge noted the challenge to the respondent’s account in cross-examination. His Honour said that it had been suggested to the respondent that the front of her vehicle had struck the rear of Mr Lopez’s vehicle before it had struck the appellant’s vehicle. His Honour noted that the respondent denied that, and denied that she could have been mistaken about the order of occurrence of the impacts.

4. [16]

   The primary judge next dealt with the evidence of Mr Lopez. His Honour recorded that Mr Lopez said that he had made a left hand turn from Lyons Road into Victoria Road and proceeded down the hill. He had moved his car into the centre lane of traffic. As he proceeded on that course the appellants’ vehicle pulled out from the McDonald’s driveway and stopped behind other traffic. Mr Lopez stopped behind him.

5. [17]

   After a few seconds of being stationary, which his Honour noted Mr Lopez qualified as being “five, six, seven seconds later”, his vehicle was struck from behind by the respondent’s vehicle and pushed into the appellants’ vehicle.

6. [18]

   The primary judge noted that Mr Lopez said that when he had seen the appellants’ vehicle pulling out from the McDonald’s driveway Mr Lopez was already slowing down from the traffic ahead so that he had time to apply his brakes behind the appellants’ vehicle. He denied seeing the appellants’ vehicle cut into the lane in front of him and he denied that the road ahead of the appellants’ vehicle was clear of other traffic.

7. [19]

   The primary judge then dealt with the first appellant’s account of the accident. His Honour first noted that the first appellant did not have a good recollection of the events and that he qualified many statements by saying what he thought he would have done at the time.

8. [20]

   His Honour said that the first appellant’s evidence was that when he pulled his vehicle out he had looked to his right and did not see any vehicles approaching from the right. He agreed it had been raining at the time and his driver’s side window would have been wound up and that would have interfered with his ability to see to his right out of that window. The primary judge noted that on several occasions in his evidence the first appellant was at pains to point out and emphasise that the impact to his vehicle was small or slight.

9. [21]

   The primary judge made reference to a statement that the first appellant had made to an investigator on 31 October 2010.

10. [22]

    His Honour next dealt with the credibility and reliability of the three witnesses. As these findings are crucial in the determination of the appeal it is necessary that they be set out in full:

Submissions

1. [23]

   The appellants submitted that there was no basis for the primary judge’s conclusion that Mr Lopez’s evidence of how long he was stopped before he was struck did not have the semblance of reliable accuracy. That was particularly so when Mr Lopez’s evidence in that regard was not challenged. Nor was there any challenge to Mr Lopez’s evidence that he observed the first appellant’s vehicle to stop before the impact and that he, Mr Lopez, had stopped before the accident. The appellants submitted that the only challenge made to Mr Lopez’s evidence was his assertion that the traffic was backed up in front of Mr Lopez’s vehicle and that he braked suddenly when the first appellant pulled out. He denied both of those propositions.

2. [24]

   The appellants submitted that the primary judge’s rejection of the evidence given by Mr Lopez did not rely upon his demeanour but rather upon the answers that he actually gave. The appellants noted that his Honour nevertheless accepted the evidence from Mr Lopez that he had turned left from Lyons Road into Victoria Road contrary to the respondent’s evidence and that Mr Lopez was at least slowing down in anticipation of the lights ahead. The appellant submitted that Mr Lopez was an independent witness whose evidence was generally not challenged. In those circumstances it was not open to his Honour to reject Mr Lopez’s account of events.

3. [25]

   The appellants submitted that it was not appropriate for the primary judge to regard the respondent’s error concerning the origin of Mr Lopez’s vehicle as immaterial. His Honour’s acceptance that Mr Lopez did travel out of Lyons Road in Victoria Road must have meant that the respondent was a significant distance behind Mr Lopez as she drove down Victoria Road. It also made more likely Mr Lopez’s evidence that he was stationary for possibly five to seven seconds before the respondent collided with the rear of his vehicle.

4. [26]

   The appellants submitted that the primary judge failed to have regard to other inconsistencies in the respondent’s evidence which would clearly have affected her reliability as a witness. These matters included her statement to the police on the day of the accident that she observed the first appellant’s vehicle to be in the left lane stopped behind a parked car and the inconsistency of her evidence that a tow truck driver had to move her vehicle from lane 2 after the accident with what she had said to the police that she drove her vehicle to the kerb.

5. [27]

   The appellants submitted that the primary judge’s conclusion that Mr Lopez’s car had struck the appellants’ car before Mr Lopez was struck by the respondent was against the unchallenged evidence of Mr Lopez and was inconsistent with the first appellant’s evidence that he felt only one impact and not two, and that he heard a thud before he felt the impact with his car.

6. [28]

   The appellants submitted that critical to the primary judge’s determination of breach and causation was his Honour’s acceptance of the respondent’s evidence as to the circumstances of the accident and a rejection of the evidence of Mr Lopez. The appellants conceded that the evidence of the first appellant was unsatisfactory given the inconsistencies between his evidence and his earlier statement but submitted that the primary judge erroneously rejected the evidence of Mr Lopez as an independent witness including critical aspects of his evidence which were not challenged. The appellants submitted that the respondent’s injuries were caused entirely by her failure to keep a proper lookout and driving at an excessive speed in the circumstances.

7. [29]

   The appellants submitted that if it is found that the first appellant was negligent an apportionment of 15% to the respondent was manifestly inadequate in the circumstances.

8. [30]

   The respondent submitted that the appellants have not challenged the primary judge’s findings concerning the unsatisfactory nature of the first appellant’s evidence and the respondent noted that the appellants accept that his evidence was unsatisfactory. The respondent submitted that the case now sought to be advanced is entirely dependent on the evidence of Mr Lopez. Central to this case is the contention that Mr Lopez was stationary in a line of traffic for a considerable period before his vehicle was struck by the respondent. That case cannot be advanced on appeal where it is contrary to the contemporaneous account given by the first appellant. The first appellant made no suggestion of a stationary line of traffic in his evidence. The contrary position was put to the respondent in cross-examination as a positive proposition. No application was made to cross-examine the respondent further after Mr Lopez’s evidence, and this approach to the case was not squarely raised by the appellants in submissions in the court below. In those circumstances the appellants, having framed their case below on the contention that the roadway ahead of the first appellant was clear, cannot now run the contrary case in this Court.

9. [31]

   The respondent accepted that ground 4 of the Notice of Appeal should succeed because the primary judge erred in his finding as to the sequence of collisions. However, the respondent submitted that that error is not dispositive of the appeal.

10. [32]

    The respondent submitted that the primary judge’s treatment of Mr Lopez’s evidence concerning the rain as being “dismissive and offhand” was essentially a demeanour-based finding and was not readily susceptible to challenge.

11. [33]

    The respondent submitted that Mr Lopez’s evidence of having been stationary for five, six or seven seconds was in contrast to the first appellant’s contemporaneous statement to an investigator in which he said that there were no vehicles in front of him. The respondent submitted that the version of events given by Mr Lopez was not put to the respondent and there was no application to recall her following the evidence of Mr Lopez. In those circumstances the primary judge was entitled to reject the evidence of Mr Lopez that he was stationary for five, six or seven seconds.

12. [34]

    The respondent submitted that her error about having stopped behind Mr Lopez’s vehicle at the traffic lights at Lyons Road was considered by the primary judge and is not relevant to the factual matters requiring determination on the questions of liability and contributory negligence. The respondent submitted that inconsistencies in her evidence, such as who moved her car after the collision, were explicable by the passage of time and did not affect her credibility.

13. [35]

    The respondent submitted that even though it is accepted that she first struck Mr Lopez before he struck the first appellant, that does not alter the fact that it was the first appellant’s driving which caused Mr Lopez to take evasive action and led the respondent to take the evasive action that brought about the collision.

14. [36]

    In relation to contributory negligence the respondent drew attention to the decision in Tarabay v Leite [2008] NSWCA 259 at [31] where it was said that questions of apportionment give rise not merely to evaluative judgments but to a finding which cannot be characterised as right or wrong. The apportionment was open on the evidence and should not be disturbed. It is not established that the primary judge acted on a wrong principle.

Grounds 1-5 – negligence

1. [37]

   The approach of an appellate court in a matter like the present is set out in the judgment of Basten JA (Leeming JA agreeing) in Nominal Defendant v Smith [2015] NSWCA 339 at [5]-[11].

2. [38]

   Grounds 1-5 may conveniently be dealt with together. His Honour’s basis for finding negligence on the part of the appellants was his determination that the respondent’s evidence was reliable and the evidence of Mr Lopez was unreliable. His Honour found also that the first appellant was a less reliable witness than the respondent. The submissions on the appeal by the appellants did not seek to draw much support from the evidence of the first appellant although his evidence cannot be entirely disregarded. Nevertheless, the submissions on appeal were put principally on the basis that his Honour erred in his acceptance of the respondent’s evidence and the rejection of Mr Lopez’s evidence.

3. [39]

   The starting point for consideration of negligence on the part of the first appellant is that the respondent concedes that his Honour erred in determining that Mr Lopez first collided with the appellants’ vehicle and thereafter the respondent collided with Mr Lopez’s vehicle. It should also be noted that although his Honour reached that conclusion at [41] of his judgment when making his liability findings, when his Honour came to consider the issue of contributory negligence his Honour said this at [66]:

4. [40]

   The respondent’s concession in relation to ground 4 is significant because it accepts the unreliability of her evidence on what may well be regarded as the most significant aspect of the case. If the first collision was between the respondent and Mr Lopez, and it is accepted that Mr Lopez’s vehicle was stationary when struck, the evidence points in the direction of the overall collision having been occasioned without negligence on the part of the first appellant.

5. [41]

   It is necessary next to consider if the primary judge’s acceptance of the respondent’s evidence and her reliability was justified. His Honour’s acceptance of the respondent’s evidence does not, in terms of its reliability, appear to be based in any way on demeanour. There was no issue as to the honesty of any of the witnesses and his Honour’s acceptance of the respondent’s truthfulness does not constrain an examination of her reliability on this appeal.

6. [42]

   The primary judge held that there were only two qualifications, both immaterial, to the reliability of her evidence. The first was her incorrect description of Mr Lopez’s vehicle as a Lancer rather than a Lantra. The primary judge considered this immaterial. The appellants do not submit that this mistake is relevant to the respondent’s reliability. The second concerned her evidence that she had been stopped behind Mr Lopez at the Lyons Road intersection and followed him until the accident occurred.

7. [43]

   The appellants pointed to four areas where they say her evidence was unreliable. The first concerned her evidence of stopping and then travelling behind Mr Lopez to the time of the accident. The primary judge did not accept her evidence in that regard but said at [32] that he did not consider that this erroneous view affected her reliability. I do not consider that the error can be so easily put aside.

8. [44]

   On the basis that the evidence of Mr Lopez was accepted by the primary judge that Mr Lopez turned left out of Lyons Road, drove down lane one of Victoria Road and then moved into lane two, the likelihood is that the respondent was in fact stopped behind another car at Lyons Road which at some point changed lanes out of lane two either leaving the respondent driving with no one initially in front of her or driving behind Mr Lopez who had at that stage moved into lane two. If the former position obtained, then Mr Lopez moved in front of the respondent’s vehicle from lane one. While the appellants did not place reliance on the respondent’s mistake in identifying the make of the car driven by Mr Lopez, it may be that the vehicle behind which the respondent stopped at Lyon’s Road was a Lantra, indicating that she did not observe the Lantra move to another lane as the Lancer driven by Mr Lopez moved in front of her vehicle. That suggests a lack of attention on her part.

9. [45]

   The plaintiff reported none of those matters. Significantly, she did not report that at one stage she was not behind Mr Lopez’s vehicle but came to be travelling behind him. When that happened in relation to the time of the accident is not known.

10. [46]

    Mr Lopez’s evidence in that regard is significant also because he said there was no traffic travelling in Victoria Road when he turned left. That evidence is supportive of his other evidence that he had been stopped for some seconds before he was hit. The fact, also, that the respondent had been stopped behind another car at the intersection of Lyons Road makes that evidence more probable because of the time it would have taken the respondent to catch up to Mr Lopez’s vehicle. Mr Lopez’s evidence that there was no traffic travelling in Victoria Road when he turned left also tends to give some credibility to the first appellant’s evidence that when he looked to the right there were no cars coming down Victoria Road that impeded his intended movement. Although he was vague about some other matters, the first appellant was adamant that the road was clear for him to move into the middle lane. The respondent’s evidence was that the first appellant was two to three car lengths in front of Mr Lopez.

11. [47]

    In my opinion, those events are significant for casting doubt on the reliability of her memory in relation to the accident and for supporting Mr Lopez’s account.

12. [48]

    Secondly, the appellants relied on the fact that the collisions between the three vehicles did not take place as the respondent gave evidence. Rather, she collided first with Mr Lopez and pushed his car into the appellants’ vehicle. Her evidence about this was (T 174.42):

13. [49]

    Despite saying that she saw Mr Lopez’s car slide into the appellants’ vehicle the respondent now accepts that her evidence in that regard was incorrect.

14. [50]

    The respondent submitted that because the two collisions were in close proximity in time, the difference in the order was minor. That submission takes no account of the fact that if the respondent’s vehicle struck Mr Lopez’s vehicle first, (a) the respondent’s evidence about the collision was wrong, (b) Mr Lopez’s evidence about the accident was therefore more likely to be correct, (c) that evidence included that he was stationary and not moving when hit, that he did not have to brake suddenly when the first appellant pulled out, and that a period of time elapsed after he stopped before being hit. Far from being minor, the order of collisions was of great significance for the outcome of the case.

15. [51]

    That evidence from the respondent was also of considerable significance in lending support not only to Mr Lopez’s evidence but also the evidence of the first appellant that Mr Lopez’s vehicle was stationary when the respondent struck it.

16. [52]

    The third matter relied upon by the appellants was the inconsistency between her evidence at the trial that the appellants’ vehicle was in the McDonald’s driveway and what she had said in her statement to the police on the evening of the accident. The plaintiff’s statement relevantly read:

17. [53]

    The respondent said this:

18. [54]

    In cross-examination she gave this evidence:

19. [55]

    The respondent then had put to her that her evidence about where she saw the utility differed from what she had told the police on the night of the accident. She gave this evidence in that regard:

20. [56]

    The primary judge did not mention this inconsistency at all. It was not a matter of great significance but it was an inconsistency nevertheless. When the primary judge noted inconsistencies between the first appellant’s evidence and what he said in a statement made six months later to an investigator, he ought also to have noted this inconsistency in the respondent’s evidence particularly when her police statement was made on the same day as the accident.

21. [57]

    The fourth matter relied upon by the appellants was the inconsistency between the respondent’s evidence concerning moving her car after the accident and what she had said in her statement to the police. In her police statement she said:

22. [58]

    The evidence she gave in court was:

23. [59]

    The primary judge made no mention of this matter. Not only was it inconsistent but the respondent put forward a reason for not moving her car when she gave her evidence. That has the hallmarks of reconstruction about which the primary judge was critical of both the first appellant and Mr Lopez.

24. [60]

    These four matters were put to the primary judge in the written submissions of the appellants and were expanded upon in oral submissions. In my opinion the primary judge failed to deal with two of these matters (where she first saw the appellants’ vehicle, and how her car was moved after the accident). In relation to the matter of the order of the accidents, the respondent accepts that his Honour’s finding cannot stand. In relation to the respondent’s evidence about being behind Mr Lopez at the intersection, his Honour has failed to assess the significance of the error in that regard.

25. [61]

    The next matter for consideration is the primary judge’s rejection of Mr Lopez as a reliable witness.

26. [62]

    His Honour concluded that Mr Lopez’s testimony did not represent a reliable account of the events or how the collisions had occurred (at [34]). The primary judge said that he gained the impression that Mr Lopez “was vague in his descriptions when he gave his evidence” and said Mr Lopez’s description of the rainy conditions as “a bit of rain” was dismissive and off-hand. His Honour was critical of him in relation to the estimate of how long he was stopped before the collision occurred and of the distance that he thought the appellants’ vehicle travelled in front of him before stopping. His Honour said that all of this suggested it was a reconstructed account of events.

27. [63]

    It was not without significance that Mr Lopez was an independent witness who could scarcely be considered to be in the appellants’ camp. It was never suggested to him by the respondent’s counsel nor by the primary judge that his evidence was vague or that his account was reconstructed.

28. [64]

    The primary judge made two important factual findings which tended to support the reliability of Mr Lopez’s evidence. The first was that he accepted Mr Lopez’s evidence, contrary to the respondent’s evidence, that Mr Lopez had turned left into Victoria Road from Lyons Road. Secondly, the primary judge found, in accordance with Mr Lopez’s evidence and contrary to the respondent’s evidence, that as the respondent was driving down Victoria Road the traffic ahead of her was slowing down in anticipation of the traffic lights ahead (at [39]). Coupled with that finding is the primary judge’s finding at [39] that the first appellant had travelled a relatively short distance before he braked. That evidence is entirely consistent with Mr Lopez’s evidence.

29. [65]

    A reading of Mr Lopez’s evidence does not bear out the criticism that he was vague in his descriptions. The only two things that he could not accurately recall were, first, whether there was a green light for Lyons Road traffic at the intersection of Victoria Road, a matter of no concern to Mr Lopez because he was able to turn left without regard to those traffic lights and, secondly, his estimate of how far from the accident site the traffic lights were at the bottom of the hill. The remainder of his evidence, at least as far as the transcript reads, was given clearly and without uncertainty.

30. [66]

    Having summarised Mr Lopez’s evidence the primary judge said this at [22]:

31. [67]

    The primary judge’s criticism of him being dismissive and offhand is not understood. Mr Lopez was being asked about taking the particulars of other drivers. The question was:

32. [68]

    In cross-examination he was asked about the weather and he gave this evidence:

33. [69]

    Mr Lopez’s evidence was consistent that until the police attended the rain was light. The primary judge does not explain what he means by saying that Mr Lopez was being dismissive and offhand nor how that made his evidence unreliable. Whether there was much rain or only a little when the drivers were exchanging particulars at the bus stop was not germane to the issues nor to Mr Lopez’s reliability, the evidence cast no aspersion on any other witness, nor did it minimise the importance of anything that had happened.

34. [70]

    As noted earlier, Mr Lopez gave evidence that he was first struck by the respondent’s vehicle and then pushed into the appellant’s vehicle. The respondent now concedes that that is how the accident happened. That matter tends to support the reliability of Mr Lopez’s evidence.

35. [71]

    Mr Lopez gave evidence that he had slowed down and stopped by the time he was struck by the respondent’s vehicle. He was not challenged to suggest that he was still moving when he was struck by the respondent. His evidence about being stopped for a number of seconds before being struck was not challenged. Indeed, the only challenge to his evidence concerned whether the road was clear in front of him before the accident and whether he braked suddenly. He denied both matters with no apparent hesitation.

36. [72]

    The primary judge, having accepted Mr Lopez’s evidence about his route to the accident site and the fact that he was slowing down to stop for the lights at the bottom of the hill, failed to have regard to the aspects of his evidence that were unchallenged and erroneously rejected Mr Lopez’s evidence as to the order of collisions. The primary judge also failed to consider how those aspects of Mr Lopez’s evidence impacted on the evidence given by the respondent.

37. [73]

    I do not accept the submission of the respondent that the appellants should not be allowed to put forward the case based on Mr Lopez’s evidence because it differed from the case opened by the appellants and the matters that were put to the respondent in cross-examination. Nor do I accept that there was any unfairness because the appellants did not apply to have the respondent further cross-examined.

38. [74]

    The first thing to note is what counsel for the appellants said in opening (T 18.38):

39. [75]

    The only thing not mentioned in this was that Mr Lopez gave evidence that he was slowing down in any event for the lights at the bottom of the hill. It is true that counsel for the appellants cross-examined the respondent to suggest that there was no traffic ahead on Victoria Road as she drove down the hill. At T 179.44 there are these questions and answers:

40. [76]

    It is difficult to see the unfairness in what was put to the respondent in the light of Mr Lopez’s evidence. The respondent was given every opportunity, which she took, to give her account of the traffic. Although her evidence was that the road ahead of Mr Lopez was clear she acknowledged that there may have been traffic further along the road. Her evidence in cross-examination was this (T 158-159):

41. [77]

    It may be accepted that the case for the appellants shifted slightly from the opening and the cross-examination of the respondent when Mr Lopez gave his evidence. However, it did so only to the extent that Mr Lopez said that he was required to slow down and stop for traffic banked up from the lights towards the bottom of the hill. Senior counsel for the respondent cross-examined him about that matter. It was always open to the respondent to have given evidence in reply concerning that matter but, given the clear evidence she had given in chief and in cross-examination, any evidence in reply would only have been denying what Mr Lopez said in that regard. There was no obligation on the part of the appellants’ counsel to have the respondent recalled.

42. [78]

    It is well-known that cases change during the course of evidence from what was anticipated at the outset. The change here, as Mr Fitzsimmons’ opening makes clear, was only that it was being said by Mr Lopez, and to some extent by the first appellant, that when the first appellant moved his vehicle in front of Mr Lopez’s vehicle that he stopped very soon thereafter. What was not changed was the assertion that Mr Lopez came onto Victoria Road from Lyons Road, that the first appellant pulled out in front of him, that he was able to stop without any sudden braking, and that thereafter the respondent collided with his vehicle forcing him into the first appellant’s vehicle. The way the matter is put by the respondent in this Court is no different in substance to the case run before the primary judge.

43. [79]

    Although it may be accepted that the first appellant’s evidence was in many respects unsatisfactory, his evidence was at least consistent with Mr Lopez’s evidence in the sense that he had sufficient time to cross into the second lane and move in front of Mr Lopez’s car without Mr Lopez colliding with his car. That was no doubt because, as Mr Lopez said, he was slowing down to stop and was able to do so when the first appellant moved in front of him. Mr Lopez’s evidence was not that he had to brake suddenly but that a car came out and he stopped because he was slowing down to stop. He said it wasn’t a sudden brake. Further, the first appellant’s evidence was consistent with Mr Lopez’s evidence that he first heard the thud and then felt a thud in his car. That is what the respondent now accepts occurred.

44. [80]

    Moreover, the first appellant’s evidence in chief was that he had driven 10 to 15 metres down the road before he stopped. Although that evidence differed from what he had said in his statement made in October 2010 (he there said five to ten metres) the estimate of 10 to 15 metres was consistent with Mr Lopez’s evidence to that effect. That evidence, and the evidence that the accident occurred slightly to the west of the McDonald’s driveway is also supported by the unchallenged evidence that the first appellant’s vehicle was not on an angle in the middle lane but facing straight down the road at the time of the accident. The primary judge’s acceptance at [36] of his judgment that the accident happened directly outside the McDonald’s driveway is not only inconsistent with both the evidence of Mr Lopez and the first appellant, but it is also inconsistent with all of the evidence that the appellants’ vehicle was wholly in the middle lane and facing west. That could not possibly have been the case outside the McDonald’s driveway.

45. [81]

    The primary judge’s findings that the respondent was a reliable witness and that Mr Lopez was unreliable are not supported by the evidence. The concession that ground 4 of the appeal should be upheld, while not determinative itself, when taken with the other matters discussed above, leads to the conclusion that the primary judge was in error in holding that the accident occurred as a result of a breach of duty on the part of the first appellant. In particular, the unchallenged evidence of Mr Lopez that he was stationary for some seconds after he stopped behind the first appellant before being struck by the respondent’s vehicle, should have resulted in a finding that there was no breach on the part of the first appellant in driving into the second lane, and that the cause of the accident was the failure of the respondent to keep a proper lookout, to drive at a safe speed in the circumstances and to keep a reasonable distance behind Mr Lopez’s car.

Ground 6 – contributory negligence

1. [82]

   In the light of my conclusion on the issue of negligence it is not necessary to consider this ground of appeal. Had it become necessary to do so, the matters discussed in relation to the respective reliability of the respondent and Mr Lopez would have resulted in a significantly greater responsibility for the accident being attributed to the respondent. In that regard, the fact that Mr Lopez was able to stop his vehicle without any sudden or heavy braking is significant in tending to show that the respondent was not keeping a proper lookout, was travelling too fast in the circumstances and was not travelling a reasonable distance behind. The apportionment found was simply not open to the primary judge. I would have apportioned responsibility 65% to the respondent and 35% to the appellants.

Conclusion

1. [83]

   The respondent submitted that if error was found a new trial should be ordered. This was said to be because the primary judge’s findings involved assessments of demeanour. I do not agree. For reasons given earlier, it is clear that the primary judge’s conclusions concerning the reliability of witnesses came from his assessment of the evidence itself and not from how that evidence was given. The one reference the primary judge made to Mr Lopez’s attitude when giving evidence is not explained or explicable, nor is it relevant to Mr Lopez’s evidence generally.

2. [84]

   Application of the principles set out in Nominal Defendant v Smith (referred to above) lead to the conclusion, especially bearing in mind r 51.53 Uniform Civil Procedure Rules 2005 (NSW), that this Court should give the judgment which ought to have been given in the court below.

3. [85]

   Accordingly, I propose the following orders:

   1. (1)

      Appeal allowed.

   2. (2)

      Set aside the judgment of the District Court (Judge Levy SC) of 18 November 2016.

   3. (3)

      In lieu, judgment for the defendants.

   4. (4)

      The plaintiff is to pay the defendants’ costs of the trial.

   5. (5)

      The respondent is to pay the appellants’ costs of the appeal.

   6. (6)

      The respondent is to have a certificate under the Suitors’ Fund Act 1951 (NSW).