Stephen Ning v Aaron James McGrath

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Murrell CJ:
• Judgment Date: 02 July 2015
• Docket Number: File Number(s): SCA 77 of 2014
• Date: 02 July 2015

[2015] ACTSC 163

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Murrell CJ

File Number(s): SCA 77 of 2014

Stephen Ning

(Appellant)

and

Aaron James McGrath

(Respondent)

Representation:

Counsel

Mr I Roberts SC (Appellant)

Mr S Whybrow (Respondent)

Cases Cited:

Fox v Percy (2003) 214 CLR 118

Goreski v de Costa [2014] ACTSC 233

Klobucar v The Queen [2014] ACTCA 6

Leishman v Thomas (1957) 75 WN (NSW) 173

Monie v Commonwealth of Australia (2005) 63 NSWLR 729

Podrebersek v Australian Iron and Steel (1985) 59 ALR 529

Sibley v Kais (1967) 118 CLR 424

Legislation Cited:

Evidence Act 2011 (ACT) s 54

Magistrates Court Act 1930 (ACT) pt 4.5

APPEAL AND NEW TRIAL — Motor vehicle accident — delay in delivering judgment — motorcycle poorly illuminated — failure to keep proper lookout — contributory negligence

Murrell CJ:

Background

1 At 6:24 pm (after dark) on 15 May 2008, the respondent was injured when his motorcycle collided with the appellant's motor vehicle. The accident occurred as the appellant was making a right hand turn into a T-intersection at Barraclough Crescent. The respondent was approaching the intersection along Barraclough Crescent, from the appellant's right side.

2 The respondent brought proceedings in the Magistrates Court. At the hearing, the respondent contended that the appellant had breached his duty of care by failing to keep a proper lookout and failing to give way. The appellant accepted that, when making the right turn, he had a duty to give way to traffic proceeding along Barraclough Crescent. However, he argued that he had discharged his duty of care to the respondent; he had looked to the right before turning into Barraclough Crescent. He said that he had failed to see the respondent because the respondent had been wearing dark clothing and riding a motorcycle with a poorly illuminated headlight. Alternatively, the appellant contended that the respondent was guilty of contributory negligence.

3 The primary judge received evidence in February and April 2013. In April 2013, the primary judge viewed the scene of the collision in circumstances that were not materially different to those that prevailed at the time of the accident. Written submissions were provided by 20 June 2013. The primary judge reserved his decision until 19 August 2014, when his Honour found that the appellant had breached his duty of care, and there had been no contributory negligence by the respondent. His Honour gave judgment for the respondent in the sum of $193,150.45.

4 The appellant appealed against the findings on primary liability and contributory negligence. There was no appeal against the assessment of damages.

Grounds of appeal

5 In the Amended Notice of Appeal, the appellant raised grounds that can be summarised as follows:

• (a) The primary judge made conflicting findings of fact concerning whether the appellant discharged his duty of care by looking to his right (in the direction of the respondent) before proceeding into the intersection and erred in rejecting the appellant's evidence that he did look to his right (Grounds 4.4, 4.5, 4.8).

• (b) The primary judge should have found that the respondent was guilty of contributory negligence because the respondent contributed to his invisibility by dressing in dark clothing and riding a motorcycle which had a defective front headlight (Grounds 4.6, 4.7).

• (c) The primary judge failed to consider whether the respondent was guilty of contributory negligence because he failed to take appropriate evasive action; the respondent had given evidence that he had seen the appellant's vehicle about to make a right-hand turn but had failed to bring his motorcycle to a halt (Grounds 4.10, 4.11).

• (d) The primary judge erred in rejecting the expert opinion of Dr Watson and preferring the evidence of Mr Jamieson. In particular, the primary judge failed to elucidate his reasons for rejecting Dr Watson's evidence about the lack of contrast between the poorly illuminated motorcycle and the road surface and his evidence that the respondent was not silhouetted (Grounds 4.13, 4.14).

6 The appellant raised a separate ground of appeal concerning unfairness associated with the decision being reserved for 14 months from the close of written submissions, but at the hearing of the appeal the appellant confined himself to the submission that the adequacy of the primary judge's reasons should be assessed in the context of the long delay in delivering the decision.

Decision of the Magistrates Court

7 Exhibit 1 on the appeal illustrates the location of the accident.

8 The uncontroversial evidence and findings of the primary judge included the following:

• (a) The appellant was obliged to give way to traffic coming from the direction from which the respondent was coming.

• (b) The appellant had a clear line of sight towards the respondent.

• (c) Barraclough Crescent was well illuminated by street lighting.

• (d) The respondent was wearing dark clothing.

• (e) The headlight bulb on the respondent's motorcycle was a 12 volt bulb in a 6 volt system. It provided poor illumination. The degree of brightness varied (depending on the revolutions produced by the engine), but the light barely lit the road in front of the motorcycle.

• (f) The appellant stopped to give way to a car travelling in front of the respondent and waited a few seconds before moving into the intersection.

• (g) The respondent slowed to 30 km/h (8 m/s) as he approached the intersection.

• (h) When the respondent was about 25 metres from the point of collision, he observed that the appellant was stationary at the intersection and was looking towards him. The respondent concluded that the appellant had seen him and it was safe for him to proceed into the intersection. Approximately three seconds later, the accident occurred.

• (i) The appellant did not see the respondent's motorcycle before the collision.

9 The primary judge noted at [11] that, in the ordinary course, the appellant would be found to be negligent because he had failed to give way to the respondent.

10 In relation to breach of duty, the primary judge found at [27]:

Ultimately, after considering the evidence of Mr Jamieson, Dr Watson and my own impressions of the scene at the time of the view, I am satisfied, on the balance of probabilities, that, had the … [appellant] properly and carefully checked Barraclough Crescent to his right after he had given way to the vehicle which was travelling ahead of the … [respondent], he would have had no significant difficulty seeing the … [respondent] approaching close to Kneeshaw Street.

Nature of appeal

11 An appeal under pt 4.5 of the Magistrates Court Act 1930 (ACT) is by way of rehearing on the evidence, with a power to receive new evidence. The appellate court must conduct a real review, weighing conflicting evidence, and drawing its own inferences and conclusions, but bearing in mind the advantages of the primary judge in relation to fact finding: Fox v Percy (2003) 214 CLR 118 at 127–8 per Gleeson CJ, Gummow and Kirby JJ; Goreski v de Costa [2014] ACTSC 233 at [7] per Murrell CJ.

Findings concerning the appellant looking to the right

12 The appellant contended that the primary judge made contradictory findings about whether the appellant did look to his right before making a right-hand turn, and should have found that the appellant did look.

13 There was no dispute that, before commencing a right hand turn into Barraclough Crescent, the appellant stopped at the intersection to give way to a vehicle that was travelling ahead of the respondent's motorcycle and in the same direction as the motorcycle.

14 At [8], the primary judge noted with apparent acceptance the appellant's evidence that, after that vehicle passed, he looked to the right but did not see the respondent's motorcycle. At [27], the primary judge noted the appellant's evidence that, when he commenced the turn into Barraclough Crescent, his attention was not on the road to his right (where the respondent was located) but on the opposite side of the road. At [9] and [10], the primary judge accepted the evidence of the respondent that, as he approached the intersection, he slowed and ‘was cautious in case the … [appellant] had not seen him’ but, when he was about 25 metres from the intersection, he saw the appellant looking towards him and he proceeded into the intersection because he ‘thought that the … [appellant] had seen him’.

15 In relation to the making of conflicting findings, the appellant referred to [32] of the primary judge's reasons, where his Honour said:

The … [appellant] simply did not look or, if he did look it was only very briefly, such that it was not long enough to see a motorcyclist only some 25 metres away.

16 The primary judge's comment at [32] that ‘the … [appellant] simply did not look or, if he did look it was only very briefly’ must be seen in the context that both parties gave evidence that the appellant did look in the direction of the respondent. When the terms of [32] are read in context, it is plain that the primary judge found that, although the appellant did look to his right (in accordance with his duty to keep a lookout), he failed to see the respondent because he looked for an insufficient period and/or with insufficient attention (and thereby failed to satisfy the duty to keep a proper lookout).

17 The appellant has not established that the primary judge made contradictory or wrong findings about whether the appellant looked to his right.

Expert opinion about visibility and delay in judgment

18 The evidence of the experts, Mr Jamieson (for the respondent) and Dr Watson (for the...