Hong Bui v David Ireland [2000] ACTSC 62 (27 July 2000)

Last Updated: 16 October 2000

Hong Bui v David Ireland [2000] ACTSC 62 (27 July 2000)

CATCHWORDS

APPEAL - appeal from Magistrates Court against finding of negligence in motor vehicle collision - demeanour of witnesses - whether advantage of Magistrate outweighed by facts otherwise proved --whether facts were so proved - they were not.

MOTOR TRAFFIC - collision in intersection controlled by traffic lights - whether undisputed evidence of sequence of traffic lights required finding that defendant did not enter intersection against red light - evidence incomplete - such finding not required.

Magistrates Court (Civil Jurisdiction) Act 1982, s 387(2)

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 72 of 1999

Judge: Miles CJ

Supreme Court of the ACT

Date: 27 July 2000

IN THE SUPREME COURT OF THE )

) No. SCA 72 of 1999

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: HONG BUI

Appellant

AND: DAVID IRELAND

Respondent

ORDER

Judge: Miles CJ

Date: 27 July 2000

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed and the judgment of the Magistrates Court be confirmed.

2. The appellant pay the respondent's costs of the appeal.

1. This is an appeal from a Magistrate pursuant to s 387(2) of the Magistrates Court (Civil Jurisdiction) Act 1982 (the Magistrates Court (Civil Jurisdiction) Act) in which the defendant/appellant was found liable to the plaintiff/respondent for damages to the respondent's motor vehicle sustained in a collision on Northbourne Avenue on 25 October 1997.

2. The Magistrate's judgment was delivered and reasons published on 31 August 1999.

3. The case was conducted before the Magistrate and on the appeal upon the basis that the collision occurred in the intersection of the northbound carriageway of Northbourne Avenue and Macarthur Avenue. The vehicle driven by the respondent had been travelling north in Northbourne Avenue. The vehicle driven by the appellant had been travelling south in the southbound carriageway of Northbourne Avenue and had executed, or was executing, a right-hand turn in order to travel west into the intersection and beyond it into Macarthur Avenue itself.

4. The street layout and physical aspects of the vicinity are somewhat complex and there were deficiencies in the evidence in relation to some of those aspects. A plan was marked by some of the witnesses and admitted into evidence by the Magistrate. However, it was lost in the Magistrates Court and was not available at the hearing of the appeal. The Magistrate's decision appears to have depended in part on familiarity with the intersection. I have had some difficulty understanding the evidence and the reasons for the decision. Notwithstanding the difficulty and after full consideration, I have decided that there is no point in remitting the matter to the Magistrates Court for further consideration and that the appeal should be dismissed.

5. By consent and pursuant to s 391 of the Magistrates Court (Civil Jurisdiction) Act, a printed scale plan (which did not bear the markings placed on the plan in evidence before the Magistrate) was admitted into evidence in the appeal. The following description of the physical features of the area is taken largely from that plan since it is not evident from the oral evidence.

6. Northbourne Avenue, as its name suggests, runs almost exactly north and south. It is divided into two carriageways separated by a substantial area, some 24 to 25 metres wide and referred to by witnesses variously as a "median strip", "island" or, "plantation area". It is too wide to be described as a strip. It is certainly not an island and there is nothing in the evidence about a plantation. I shall refer to it as the median area.

7. Northbourne Avenue intersects with Macarthur Avenue on the west and Wakefield Avenue on the east. Each of the latter streets is in effect a prolongation of the other. There are therefore two intersections, each joined by that part of the prolongation of the two streets which provides a break in the median area for traffic passing across Northbourne Avenue or turning from or into Northbourne Avenue. This prolongation is about 25 metres long and about 25 metres wide.

8. For northbound traffic there are four lanes at the commencement of the intersection with Macarthur Avenue. For southbound traffic there are four lanes at the commencement of the intersection with Wakefield Avenue. For eastbound traffic there are three lanes on the western side of the intersection with Macarthur Avenue. For traffic travelling west there are also three lanes. All lanes are marked on the road surface up to the commencement of the intersections. Within the intersections and in the Macarthur Avenue/Wakefield Avenue prolongation there is no median strip and there are no lane markings. The plan does not show road surface markings for controlling the direction of traffic. Both Macarthur Avenue and Wakefield Avenue are separated by a median strip two metres wide.

9. Both intersections are controlled by traffic lights mounted on what are referred to on the plan as signal pedestals. If I interpret the plan correctly, there are twelve pedestals, all numbered on the plan. Some of the pedestals have lights which display an arrow for the purpose of controlling traffic turning right. They include pedestals Nos 6 and 11 for traffic turning right from the southbound carriage of Northbourne Avenue into the prolongation area intending to enter the intersection and cross into Macarthur Avenue in order to proceed west. They include also, critically, pedestal No 12 which is at the south eastern corner of the Macarthur Avenue intersection. I infer that the lights displayed by pedestals Nos 6 and 11 each include a horizontal arrow which when red prohibits southbound traffic entering the prolongation area (and, in that sense, from commencing to "make a right-hand turn") and, when green, permit traffic to enter the prolongation area. I infer further that pedestal No 12 displays in a north-easterly direction an arrow for the control of traffic turning south-west from Northbourne Avenue into the prolongation area in accordance with a green arrow on pedestals Nos 6 and 11. That arrow when red prohibits traffic exiting the prolongation area and entering the Macarthur Avenue intersection and when green permits traffic to exit the prolongation area and to enter the intersection in order to proceed into Macarthur Avenue and proceed west. However, it is not clear whether that arrow is a horizontal arrow controlling traffic making a "right hand turn" into the prolongation area (as on pedestals Nos 6 and 11) or a vertical arrow controlling traffic which, having completed the right hand turn, intends to then proceed straight ahead into MacArthur Avenue. Pedestal No 12 also displays roundel lights to traffic proceeding west from Wakefield Avenue intending to continue west into Macarthur Avenue. Pedestal No 12 also displays roundel lights for vehicles proceeding north in Northbourne Avenue and arrows for vehicles intending to turn right from Northbourne Avenue into the prolongation area and to proceed east into Wakefield Avenue.

10. An engineer, Mr Michael Day, gave evidence and produced a report on the phasing of all lights in the two intersections. The Magistrate accurately summarised his evidence to the effect that for there to be green roundels facing Northbourne traffic, the traffic lights would have been in either phase A or phase E and that phase A is called automatically whereas for other phases there has to be a demand.

11. I reproduce the description in the report of the various phases. I add the identifying numbers of the pedestals:

"Phase A	Green roundels alongside red right turn arrows for both approaches on Northbourne Avenue, red roundels for Wakefield Avenue and Macarthur Avenue. (Pedestals 1, 4, 5, 6, 7, 10, 11, 12 for green roundels and pedestals 3, 4, 6, 8 and 9 for red roundels.)
Phase B	Green roundels alongside green right turn arrows for the southbound Northbourne Avenue approach, red roundels alongside red right turn arrows for the northbound Northbourne Avenue approach, red roundels for Wakefield Avenue and Macarthur Avenue. (Pedestals 1, 4, 5, 6 and 12 for green roundels and pedestals 6, 7, 10, 11 and 12 for red roundels.)
Phase C	Green roundels and green right turn arrows for Wakefield Avenue, reds for all other approaches.
Phase D	Green roundels and green right turn arrows for Macarthur Avenue, reds for all other approaches.
Phase E	Green roundels alongside green right turn arrows for the northbound Northbourne Avenue approach, red roundels alongside red right turn arrows for the southbound Northbourne Avenue approach, red roundels for Wakefield Avenue and Macarthur Avenue.

12. The respondent's evidence was that he first noticed the lights facing him when he was about 30 to 40 metres from the intersection. He observed that the lights displayed a green roundel with a red right turn arrow and that there was a stationary vehicle in the adjacent right-hand turn lane. He said that he saw the vehicle proceeding at 30 to 40 kilometres per hour when he was about five metres from the intersection. That vehicle entered the intersection from his right. He braked hard, veered to the left but was unable to avoid a collision. The front of his vehicle came into impact with the rear passenger side of the other vehicle. He said that his vehicle spun around by the impact so that it finished in the middle of the intersection facing at an angle to Macarthur Avenue. He said further that from this position he looked "at the lights" and saw "mine were still green and that there was in fact a red arrow for that direction that that car had come from". It is not clear which particular pedestal or pedestals he was talking about and the Magistrate made no finding in that respect. It is difficult to see how he could have observed the lights on pedestal No 12 from where he was. He could have observed green roundels on what must be pedestal No 4 (although unnumbered on the plan - on the north western corner of the intersection) and less likely on pedestal No 5.

13. The respondent's evidence as to braking and the position of the vehicles after impact were supported by Constable Fuller.

14. Mr Phillip Ryan gave evidence in the respondent's case that he was stationary in his car in Macarthur Avenue facing east in accordance with red lights, intending to drive across both intersections into Wakefield Avenue. His attention had been directed towards adjusting the car radio when he heard a crash and saw the two vehicles come to rest in the intersection much as the respondent described. The red lights which Mr Ryan was facing were, I infer, on pedestals Nos 6 and 8 and possibly Nos 3 and 4.

15. The evidence of another witness appears to have been regarded as of considerable importance by the Magistrate. He was Mr Nino Ciampa, a member of a gang working on a pipeline excavation in the median area "in a corner near the lights". He was looking in the direction of the Civic area, waiting for concrete to arrive. How far he was from the intersection and where exactly in relation to any particular traffic light pedestal is not clear. However, his ability to observe what happened was not challenged. The important part of his evidence was as follows:

"I saw the Ford Laser which she had to turn on the right and she had three or four cars at the front, I can't remember how many, if it was three or four cars, and you have to turn right. She got in the middle of the intersection and she stopped and then after stopped she went again. And I saw the arrow, the right turning line (sic), was red. And after that just had a collection with four wheel drive.

When you saw her vehicle come into the intersection, just to make this clear, did you look at the lights?---Yes, I did.

......

After you saw the red vehicle move off through the intersection did you look at the light again?---Yes.

And what colour was it?---It was red.

And did you then see a collision between that vehicle and another one?---Yes.

Were you able to see the lights facing the other vehicle?---The four wheel drive?

Yes?---No.

And why was that?---Because it just was on my - at my sort of a back. I couldn't see the lights the four wheel drive had."

16. In cross-examination he said:

"I noticed the turning cars which they turn another 3, 4 cars they're turning and then I saw this Ford Laser turning and she got on the middle of the intersection and noticed the lights which the arrow was red at the time the car had stopped and then I saw the accident.

......

Well, it was just 4 cars going through an intersection - - -?---Intersection, just turning, yes.

Right - - -?--- Towards Macarthur Avenue, yes.

Then you saw the red car, the red Laser stop, is that right?---Correct.

And it was then that you noticed that the red light or there was a red light indicating no right-hand turn?---That's correct.

......

And which red light had you noticed? Which red arrow did you notice was - - -?---Right.

Sorry?---Right one turning to Macarthur Avenue."

17. Unfortunately, it was only after this evidence was given that a plan was produced and marked, but in any event, as I have indicated, that marked plan has been lost and is not available on the appeal. But from everything said by Mr Ciampa, it appears that the reference to "the intersection" is a reference to the prolongation area and hence he was talking about pedestals No 6 or 11 and not about pedestal No 12.

18. The appellant's evidence was given through an interpreter. She said that as she approached the intersection in Northbourne Avenue travelling south, she moved into the right turn lane and stopped behind another vehicle. At that stage she saw that the right-hand arrow was red and the roundel was green. She did not identify the pedestal on which those lights were displayed. The right-hand arrow turned green. The car in front moved off, turned right and she followed. She said that she drove slowly and had had almost turned completely "over around the corner" when she was struck by another car. In cross-examination she was asked and said as follows:

"MR PILKINTON: All right. By turning right to get into Macarthur Avenue, I am suggesting that Ms Bui had to cross the north bound lane of Northbourne Avenue.

THE INTERPRETER: When I turn right, I turned right and that's it.

MR PILKINTON: As you entered the intersection, before attempting to cross Northbourne Avenue, did you stop or go straight ahead?

THE INTERPRETER: No, I go ahead.

MR PILKINTON: Go straight ahead. And did you see the vehicle that struck your vehicle?

THE INTERPRETER: When I'm almost turned completely I heard a bang and I knew that I was hit.

MR PILKINTON: Did you see the vehicle before it hit, before you heard the bang?

THE INTERPETER: No, I only paid attention to the light.

... ...

MR PILKINTON: Okay. So what my question is, that as Ms Bui attempted to cross Northbourne Avenue, the lights facing the vehicles in Northbourne Avenue were green.

THE INTERPRETER: Into Northbourne Avenue?

MR PILKINTON: No, vehicles proceeding in a straight line in a northerly direction along Northbourne Avenue.

THE INTERPRETER: The direction that I go, I drive, has green light.

MR PILKINTON: So, are you saying you didn't see any other lights?

THE INTERPRETER: What other lights?"

19. The Magistrate decided the issue of whether the appellant entered the intersection against a red light partly on the demeanour of witnesses. The Magistrate was unimpressed by the appellant's evidence, and thought that the respondent was clear, unmoved in cross-examination and corroborated by other witnesses. In particular the Magistrate considered that "Mr Ciampa's evidence clearly was that the defendant had entered the intersection when a red right turn arrow was facing her vehicle". The Magistrate also found established on the balance of probabilities that "before the Plaintiff entered the intersection the lights had turned to Phase A, that is, green roundels alongside red righthand turn arrows for both approaches on Northbourne Avenue and red roundels for Wakefield Avenue and Macarthur Avenue". Accordingly the Magistrate found for the respondent for the agreed amount claimed and dismissed a cross-claim by the appellant.

20. Mr Lunney, who appeared for the appellant, submitted that it was not open to the Magistrate to decide the matter essentially on the demeanour of the witnesses and that the evidence otherwise established uncontroverted facts inconsistent with the finding that the appellant entered the intersection against a red light. It was submitted that if Mr Ciampa was correct, the vehicles proceeding ahead of the appellant in accordance with the lights did so during Phase B. The appellant's vehicle was the last to move in that phase. There is nothing to suggest that she moved off before pedestal Nos 6 and 11 ceased to display a green arrow. The appellant was in the prolongation area when Mr Ciampa saw one of the lights display a red arrow and the appellant's vehicle stop. Unfortunately the plan before the Magistrate, on which Mr Ciampa marked the position of the vehicle and of that particular pedestal observed by him, is not before the Court for the purposes of the appeal. However, the description of the phases in Mr Day's report suggests that all right turn arrows for southbound traffic displayed red or green as the case may be at the same time. It is likely then that whatever pedestal it was that caught Mr Ciampa's attention, pedestal No 6 or 11 was displaying a red arrow when the appellant passed beyond it into the intersection.

21. I accept, as was submitted by Mr Lunney on behalf of the appellant, that Mr Ciampa was correct in his observations of the vehicles preceding the appellant and it is further correct that they proceeded during Phase B. Mr Lunney further submitted that the next sequence would have to be that Phase C, displaying green roundels and green right turn arrows for Wakefield Avenue and red for all other approaches. That is consistent with the evidence of Mr Ryan. If it were correct that the appellant entered the intersection during phase C, she would have done so on a green roundel (although, curiously, she was not proceeding from Wakefield Avenue). But the submission does not address the established fact that Phase C would be called only if a demand for it had been registered by traffic in Wakefield Avenue. There was no evidence about the presence or absence of traffic in Wakefield Avenue. In the absence of traffic in Wakefield Avenue the system should have run the next phase in the sequence for which there had been a call. It is established by the evidence of Mr Ryan that, although his vehicle should have registered a call for phase D, that phase had not yet commenced to run. Therefore Phase A could have run either by default or by reason of a call, or Phase E could have run by reason of a call. But according to the respondent, there was a red right turn arrow for northbound vehicles which would be consistent with Phase A and not Phase E. It is likely therefore that the respondent entered the intersection when phase B had come to an end and phase A had commenced to run.

22. Thus it was likely, in my view, and consistent with the objective and precise evidence as to the operation of the lights, and consistent with the less precise evidence of Mr Ciampa that the appellant entered the intersection against a red arrow on pedestal No 12. The advantage enjoyed by the Magistrate of observing and assessing the witnesses is not displaced by inconsistency with some incontrovertible fact. If the Magistrate interpreted Mr Ciampa's evidence to mean that the appellant had entered the prolongation area against a red right turn arrow on pedestal No 6 or pedestal No 11, that was an error. But it was not an error such as to affect the ultimate conclusion that when the respondent entered the Macarthur Avenue intersection the lights were displaying green for northbound traffic, and that when the appellant entered the same intersection the lights on pedestal No 12 were displaying a red arrow for vehicles proceeding into the intersection and Macarthur Avenue. On any view of Mr Ciampa's evidence, the appellant must have entered the Macarthur Avenue intersection against a red arrow on pedestal No 12. There is nothing else in the evidence inconsistent with that, except the evidence of the appellant which the Magistrate was quite entitled to reject on the central issue.

23. The appeal is therefore dismissed, and the judgment of the Magistrates Court confirmed. The appellant is to pay the respondent's costs of the appeal.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, the Chief Justice.

Associate:

Date: 27 July 2000

Counsel for the appellant: Mr G Lunney

Solicitor for the appellant: Romano & Co

Counsel for the respondent: Mr S Pilkinton

Solicitor for the respondent: Abbott Tout Harper & Blain

Date of hearing: 8 February 2000

Date of judgment: 27 July 2000