Gloria Carmel Petroni v Margaret Stacey [1994] ACTSC 73 (20 July 1994)

SUPREME COURT OF THE ACT

GLORIA CARMEL PETRONI v MARGARET STACEY
No. SC575 of 1988
Number of pages - 5
Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Negligence - liability in issue - decision of Master as to liability only - appeal - whether an interlocutory decision - rehearing of liability issue - no new question of principle.

Supreme Court Act 1933 (ACT), ss.9(2), (3)

TAG Pacific Ltd v McSweeney [1992] FCA 168; (1992) 106 ALR 651

Landsal Pty Ltd (in Liq) v REI Building Society (1993) 113 ALR 643
Liangis Investments Pty Ltd v Daplyn Pty Ltd and Jaimey Costin and Harry

Victor Costin (ACTSC, SC 543/93, Higgins J, 31/3/94, unreported)

Rothwells Ltd (in Liq) v Entity Group Ltd and Ors (1990) 101 FLR 460
Sherrin v Sagacio [1990] ACTSC 35; (1990) 101 FLR 255
Lennock Motors Pty Ltd v Pastrello [1990] ACTSC 42; (1990) 101 FLR 405; 6 ANZ Insurance Cases

76,927

HEARING

CANBERRA, 8 July 1994
20:7:1994

Counsel for the Plaintiff/Respondent: Mr G Lunney

Instructing solicitors: Snedden Hall and Gallop

Counsel for the Defendant/Appellant: Mr C Whitelaw

Instructing solicitors: Crossin Barker Gosling

ORDER

THE COURT ORDERS THAT:
. The appeal be dismissed.

DECISION

HIGGINS J On 10 June 1994, the Master entered interlocutory judgment in this matter in favour of the plaintiff. That followed a contested hearing on the issue as to liability. The action was for damages for personal injury arising out of a motor vehicle accident. It had been agreed that it was convenient for the issue as to liability to be determined separately by the Master.

2. The defendant now appeals from the Master's decision. That appeal lies to a single Judge only if the order appealed against is not a final judgment or order: the Supreme Court Act 1933 (ACT), s.9(2).

3. In TAG Pacific Ltd v McSweeney [1992] FCA 168; (1992) 106 ALR 651, Olney J expressed the opinion that an order which decided an issue as to liability only was a final order notwithstanding that damages remained to be assessed.

4. The correctness of that ruling was doubted in Landsal v REI (1993) 113 ALR 643, 653 per Keely, Burchett and Drummond JJ. I support that view. It is consistent with the view I took in Liangis Investments Pty Ltd v Daplyn Pty Ltd and Jaimey Costin and Harry Victor Costin (ACTSC, SC 543/93, 31/3/94, unreported). Neither counsel in this case urged a contrary opinion.

5. The appeal from the Master is by way of rehearing. The right of appeal is conferred by s.9(2) of the Supreme Court Act 1933 (ACT). The nature of the appeal is defined by s.9(3), which provides that the Court,

(a) shall have regard to the evidence given in the proceedings
out of which the appeal arose; and
(b) has power:
(i) to draw inferences of fact; and
(ii) in its discretion, to receive further evidence ...

6. It is a limited form of rehearing: see Rothwells Ltd (in Liq) v Entity Group Ltd and Ors (1990) 101 FLR 460; Sherrin v Sagacio [1990] ACTSC 35; (1990) 101 FLR 255; Lennock Motors Pty Ltd v Pastrello [1990] ACTSC 42; (1990) 101 FLR 405; 6 ANZ Insurance Cases 76,927.

7. The evidence before the Master may be summarised as follows.

8. The plaintiff, Mrs Petroni, was, on 26 May 1987, in the process of leaving a parking area. There was a toll booth at the exit. She had her driver's side window down ready to pay. She was about 22 metres from the toll booth having turned into and travelled about halfway along a laneway with eight vehicles parked in bays at right angles to her. She gave evidence that the vehicle fifth in line on her left emerged as she approached striking the nearside front of her vehicle with its rear tailgate area.

9. The defendant was the driver of the other vehicle, a small utility. The plaintiff's recollection was that the defendant was alone in that vehicle. The parties exchanged particulars and noticed each other's damage. The plaintiff proceeded to the police station to report the matter.

10. In cross-examination, the plaintiff conceded that she had memory retention difficulties and hearing difficulties. She did not consider, however, that they affected her recall of the accident.

11. Indeed, her memory was better than that of the cross-examiner. He asked her,

Well, didn't you tell your counsel a short time ago, in answer to
a question he asked that you had your arm out the window? - - -

12. In response to that suggestion, the plaintiff said "I didn't say it out at all". The transcript confirms that she merely said "I had the window down ready to pay the lady"

13. She denied she was travelling "very fast". It was put to her by the defendant's counsel that she had been travelling at 35kph prior to the collision. She emphatically rejected that suggestion.

14. There were some suggested contradictions in her evidence, such as to have required the Master to have been unpersuaded by her testimony. She had said, in response to a question from the defendant's counsel,

The first thing I saw was this vehicle come in front of me as I was
trying to drive out.

She also told him,

I saw her, as I braked straight away, immediate.

15. What counsel was endeavouring to do was to obtain evidence from the plaintiff inconsistent with answers given by her to interrogatories. Those answers were dated 18 March 1993.

16. The two relevant questions and answers were,

Q9 Shortly prior to the collision, did you see the motor vehicle
being driven by the defendant? If yes, state:- (a) approximately
what distance from your motor vehicle when you first saw it.
A No. (a) Not applicable.
Q5 ... state:- (a) whether you applied the brakes and, if so, the
approximate distance the brakes were applied from the point of the
collision;
A (a) No, still moving forward towards the exit box.

17. The plaintiff was questioned about these apparent inconsistencies. As to the answer 9(a), she explained,

I didn't see it (the defendant's vehicle) previously to her
coming out.

18. As to the answer 5(a), she was also asked in cross-examination,

Q And when you saw it reverse, you braked straight away. Is that
what you say?
A Yes, but we already hit.

When asked about the consistency of answer 5(a), with her evidence, she responded,

Yes. As I said, when I saw her come out and I tried to brake and
it was too late.

19. It was open to the Master to interpret her evidence as being consistent with her answers to interrogatories. Indeed, it does not seem to me to be necessarily inconsistent. So far as spotting the defendant's motor vehicle is concerned, the plaintiff's evidence suggests she did not see the defendant's vehicle "shortly prior to the collision" but virtually simultaneously with it. If she then applied her brakes, as she claimed, that also would not be before the collision but after the vehicles had collided. It is true that question 5(a), read literally, could be construed so as to enquire as to the application of brakes even if after the collision but that was not the way any party interpreted them.

20. Even had the plaintiff's evidence been clearly inconsistent with her answers to interrogatories, that fact would not have required the Master to reject her evidence. He might well conclude that the answers to interrogatories had been honestly mistaken. That would be a judgment very much dependant on the Master's assessment of her demeanour and character as a witness.

21. It was, of course, a valid criticism of the plaintiff's evidence that she had not noticed Mrs Stacey's presence as a passenger. It could be said to have indicated a degree of vagueness or lack of capacity to make accurate observations.

22. However, there were criticisms which might have been made of the evidence presented by and on behalf of the defendant.

23. Counsel for the defendant had suggested that the plaintiff had been travelling at 35kph prior to the collision. He also suggested that the defendant had backed out only 2 feet and stopped prior to the collision.

24. However, the defendant's evidence did not support the first of those suggestions at all. The second of those contentions involved contradictory evidence. The defendant did give evidence that she emerged only about 2 feet and stopped before the collision. However, if, as the defendant also suggested, the passenger side of the plaintiff's vehicle was, as it approached, 1-1 1/2 metres from the rear of the cars parked on the plaintiff's left side, that is, 3-5 feet, then the collision should not have been possible.

25. The defendant said that after the collision she drove her vehicle back into the parking bay before alighting and speaking to the plaintiff. She gave as her reason for doing so "... so I wouldn't obstruct anybody else". She said her vehicle was, when she alighted from it, "a good car length away" from where the plaintiff's vehicle was situated. That answer was inconsistent with the defendant's contention as to the extent to which she had emerged into the carriageway before the collision. It supported the hypothesis that the defendant had moved several metres into the traffic lane before the collision, not merely 2 feet as she claimed. It was also consistent with her vehicle having been moving into the traffic lane as the plaintiff's vehicle approached.

26. Mrs Stacey, the defendant's mother, claimed, as did the defendant, to have seen the plaintiff clearly and to have noticed that she was looking to her right before the collision. This was a surprising observation as, until the front doors of the utility were level with the rear doors of the vehicle to their left, it is unlikely that either the defendant or Mrs Stacey could have seen the plaintiff in her vehicle. It was Mrs Stacey's evidence that the plaintiff's vehicle was travelling "in about the middle of where the driveway was". This was contrary to the defendant's evidence. If she was correct as to that observation, it would mean that the defendant's vehicle, to collide with the plaintiff's vehicle, would have needed to protrude into the carriageway by at least 2 metres. That would imply that the defendant emerged half to two-thirds of the length of her vehicle in the face of oncoming traffic not merely 2 feet as she claimed in her evidence.

27. Mrs Stacey also recounted a lengthy conversation between her and the defendant after the defendant first noticed the plaintiff's vehicle approaching and before the collision. She said the defendant's vehicle suddenly stopped. She asked the defendant why she had stopped and the defendant replied,

Because I am going to get hit with this lady coming up here. She
is not looking where she is going. She is coming fast and she is
going to hit me.

28. Bearing in mind that at 25kph, a vehicle is proceeding at 6.9metres per second, at 30kph, 8.3metres per second, the likelihood of this conversation taking place whilst the plaintiff's vehicle approached at 20-30kph and before the collision was very remote indeed. Particularly is this so, when it was not disputed that the plaintiff had no more than the combined width of four parking bays to travel before the collision after turning into the laneway in question.

29. The Master saw and heard the witnesses. He concluded that they were all doing their best to recall, on 10 June 1994, the events of 26 May 1987. He recognised that reconstruction in the light of perceived self-interest might happen despite the honest endeavours of the witnesses to recall what really happened.

30. Neither the damage sustained nor the terms of the report to police assisted to resolve the conflict between the evidence of the plaintiff and that of the defendant and Mrs Stacey. The Master considered that the plaintiff's account was the more probable. This was because the defendant's account and that of her witness as to the plaintiff's speed was inherently improbable. I would also add that the defendant's account of having stopped after travelling only 2 feet was also inherently improbable.

31. The defendant had a duty to reverse with safety. Had she emerged and stopped as she claimed, the plaintiff would have had ample time within which to see her so as to stop or avoid her. It would then follow that the plaintiff had either failed to keep a proper lookout, or had been travelling at an excessive speed. If, however, she emerged suddenly into the path of the plaintiff's vehicle, the plaintiff could not have been regarded as negligent. The Master was positively satisfied on the balance of probabilities that the plaintiff had not been guilty of negligence in either respect. Unless the defendant satisfied the Master that the plaintiff had failed to some extent to take care for her own safety in one or other of those respects, he could not have found that the plaintiff was guilty of contributory negligence. He did not so find.

32. The Master rejected fabrication or conscious exaggeration on the part of any witness. He concluded each was endeavouring to tell the truth as she perceived it. It was, in those circumstances, permissible to look to the inherent probabilities of one account rather than another being the more likely to be correct. The Master's conclusion has not been shown to be erroneous. Indeed, it seems to me that it was almost inevitable that such a finding would follow from the inherent improbability of the account given by and for the defendant.

33. I dismiss the appeal.

34. I will hear the parties as to costs and further directions concerning assessment of damages.