Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Draca v Silva [2012] NSWCA 312
• Hearing dates: 10 September 2012
• Decision date: 27 September 2012
• Before: Hoeben JA at [1]; Sackville AJA at [2]; Tobias AJA at [3]

Decision

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: MOTOR VEHICLE ACCIDENT - negligence- personal injury - whether primary judge erred in finding that the respondent was not aware at the time of the collision that the collision had occurred - whether the primary judge erred in failing to consider the evidence of eyewitnesses contrary to the respondent's version of events - whether the primary judge erred in finding that the respondent was not guilty of failing to keep a proper lookout or that he was in breach of his duty of care by failing to facilitate the appellant's need to move lanes
• Cases Cited: Draca v Silva (DC, Walmsley DCJ, 19 August 2011, unreported); Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413; Sibley v Kais (1967) 118 CLR 424
• Category: Principal judgment
• Parties: Slavko Draco (Appellant); Carlos Silva (Respondent)
• Representation: D E Baran (Appellant); J A Gracie (Respondent); NSW Compensation Lawyers (Appellant); Vardanega Roberts Solicitors (Respondent)
• File Number(s): 2010/00151234

Decision under appeal

• Date of Decision: 2011-08-19 00:00:00
• Before: Walmsley DCJ
• File Number(s): 2010/151234

Judgment

1 HOEBEN JA: I agree with Tobias AJA.

2 SACKVILLE AJA: I agree with Tobias AJA.

3 TOBIAS AJA: This appeal was heard on 10 September 2012. At the conclusion of the appellant's argument the Court informed counsel for the respondent that it did not need to hear from him as it was the Court's view that the appeal should be dismissed with costs. Orders to that effect were then made with reasons to be published in due course. What follows are my reasons for joining in the Court's orders.

4 The appeal arises out of a motor vehicle accident which occurred on 29 June 2006 when the appellant, who was driving his vehicle in an easterly direction in the left hand lane of a three lane road (being Liverpool Road, Homebush), attempted to merge his vehicle into the adjoining middle lane, whereupon a collision occurred between his vehicle and a truck being driven by the respondent in that middle lane. The collision caused the appellant's vehicle to strike the curb on the left hand side of the road. The vehicle came to an abrupt halt with the consequence that the appellant sustained whiplash injuries to his neck, back and right shoulder.

5 On 17 June 2010, the appellant instituted proceedings in the District Court against the respondent alleging that the collision was caused by the respondent's negligence. The proceedings were heard by his Honour Judge Walmsley SC who, on 19 August 2011, found in favour of the respondent and entered a verdict and judgment in his favour. It is from those orders that the appellant appealed to this Court.

The relevant facts

6 The relevant part of Liverpool Road comprised three marked lanes on its eastern side and to which I shall refer as lanes 1, 2 and 3, lane 1 being the left hand lane and lane 2 being the middle lane. At a point 300 metres west of Homebush Road, lane 1 terminated. A large sign indicating that lane 1 came to an end in 200 metres was located on the left hand side of the roadway.

7 Each of the three lanes was separated by marked lines. Lanes 1 and 2 were separated by broken white lines for some distance back from the point of the collision between the appellant and the respondent's vehicle. At least 200 metres before the end of lane 1, the lines separating lanes 2 and 3 became unbroken whereas those between lanes 1 and 2 remained broken. Obviously, it was necessary for a vehicle travelling in lane 1 as it approached the termination of that lane to move from that lane into the adjoining lane 2.

8 The primary judge found at [57], and it was not contested, that as the appellant approached and passed the sign referred to at [6] above, he was aware that the lane in which he was travelling was soon to end and that he would need to change lanes to that on his immediate right. There were vehicles in front of him which crossed into lane 2 without apparent difficulty. Consistent with the general trend of the evidence, his Honour found that the appellant was travelling at a speed of approximately 30 - 40 kph as were the vehicles on his right in lane 2.

9 At the point where his vehicle reached the 200 metre sign to which I have referred, the appellant engaged his right hand indicator and began to look for a break in the traffic to his right to enable him to safely change lanes. As well as looking over his shoulder, he utilised both his internal rear vision mirror as well as that on the outside of his vehicle on its driver's side. When he was approximately 15-20 metres from the end of his lane, he perceived what he thought was a sufficient gap in lane 2 into which he could safely move his vehicle.

10 At [59], the primary judge found that at about that time, the appellant saw the respondent's truck behind him in lane 2 and considered that he could make the move into that lane safely and end up in front of the truck. He estimated the gap available to him to be something in the region of three metres between the rear of his vehicle and the front of the truck. He then commenced to cross to the right but when the driver's side of his vehicle had reached the left hand side of lane 2 he collided with the near side of the rear of the respondent's truck.

11 At [60], his Honour found that the collision involved a glancing impact causing no apparent noise or vibration in the respondent's truck so as to give the respondent notice that the impact had in fact occurred. The respondent's evidence, accepted by the primary judge, was that he neither saw the appellant's vehicle nor heard or realised that there had been a collision. Although the collision caused a great deal of damage to the right side of the appellant's vehicle, there was no discernible damage to the near side of the truck at the point of impact.

The appellant's case at trial

12 The particulars of negligence set out in the appellant's statement of claim were as follows:

(a) Driving at a speed that was excessive in the circumstances.

(b) Failing to keep any or any proper lookout.

(c) Accelerating his vehicle and thereby bringing same into collision with the Plaintiff's vehicle.

(d) Failing to give way to the Plaintiffs merging vehicle as required in the circumstances.

(e) Failing to warn of his approach or of his intentions.

(f) Failing to slow down, stop, serve or in any other way so to drive, manage or control his vehicle so as to avoid colliding with the Plaintiff's vehicle.

(g) The Plaintiff will rely upon the flight of the Defendant as evidence of negligence.

13 At [36] the primary judge noted that particular (a) was not relied upon and that the appellant did not assert that the respondent had driven at an excessive speed except at the point where he, the appellant, began to move across to the lane in which the respondent was travelling whereupon, according to the appellant, the respondent had increased his speed and thereby closed the gap.

14 As to particular (b), it was submitted that as the respondent did not hear or observe the collision, he must have failed to keep a proper lookout. It was contended that assuming acceptance of the appellant's evidence, the respondent ought to have given way to him and taken steps to avoid any collision. His failure to keep a proper lookout was evidenced by his knowledge that lane 1 was terminating and merging into lane 2 so that the respondent ought to have noticed the appellant's vehicle in that lane. Further, he ought to have seen that as the appellant had misjudged things he should have braked rather than, as he did, kept going. The primary judge at [37] rejected this submission upon the basis that he was not persuaded that anything about the appellant's vehicle ought to have put the respondent on such notice. Although he accepted that the appellant had his right hand indicator on at all material times, he rejected as unsustainable the proposition that that ought to have provided a warning to the respondent that the appellant was proposing to attempt to move into the respondent's lane in front of his truck.

15 The primary judge at [38] summarised his findings on this point in the following terms:

No doubt all, or at least most, vehicles in that lane shortly prior to the ending of that lane had their blinkers on. The [respondent] was entitled, I consider, to continue on his way in the absence of seeing any sign of any unusual conduct on the part of any vehicle or driver to his left, such as an ill-judged move by the [appellant]. I accept the [respondent's] evidence that he recalled no such ill-judged move . . .

16 Particular (c) alleged that the respondent deliberately accelerated his vehicle, in effect for the purpose of frustrating the appellant's attempt to move out of his lane. The appellant's evidence was that as he started to turn from his lane into lane 2 he heard the respondent's truck accelerate. At [23] his Honour noted that the manner in which the appellant's case was advanced before him was that when the appellant began his move, the respondent increased his speed and closed the gap, converting it from one previously safe for him to move into, to one which was too small and, therefore, unsafe.

17 In this context, it is convenient to observe that the appellant gave evidence that a man had approached him, having heard the accident, and asked if he was OK. He gave his name as Nathan Dodds and also gave him his mobile telephone number in the event that he, the appellant, needed further assistance. At [53], the primary judge noted that he had been informed that the appellant's advisors had been unable to contact Mr Dodds. His Honour was satisfied that all reasonable measures to contact him had been taken and that he drew no inference adverse to the appellant by reason of Mr Dodds' absence. However, one will never know what Mr Dodds might have said that would have assisted the appellant's case had he been found and called as a witness. Nevertheless, the existence of Mr Dodds was the foundation of Ground 1 of the appeal with which I shall deal below.

18 Particular (d) was founded on r 149 of the Australian Road Rules (the ARR) which provided as follows:

A driver in a line of traffic that is merging with one or more lines of traffic travelling in the same direction as the driver must give way to a vehicle in another line of traffic if any part of the vehicle is ahead of the driver's vehicle.

19 It is convenient to note at this point that the primary judge rejected the relevance of that rule finding that the appropriate rule was r 148(1) of the ARR which was in the following terms:

A driver on a multi-lane road who is moving from one marked lane (whether or not the lane is ending) to another marked lane must give way to any vehicle travelling in the same direction as the driver in the marked lane to which the driver is moving.

20 His Honour's rejection of the appellant's reliance at trial upon r 149 was not challenged on the appeal. Nor was his finding that r 148(1) applied with the result that the appellant was obliged to give way to the respondent. As his Honour observed at [47], if necessary the appellant had to slow down or stop his vehicle until it was safe for him to move into the adjacent lane. However, his Honour accepted that r 148(1) did not necessarily negate any negligence on the respondent's part. In other words, notwithstanding the rule, the respondent could still be guilty of negligence had his Honour found that he was or ought to have been alerted by the appellant's attempt to move into lane 2 if the circumstances were such as would have enabled him, using reasonable care and skill, to have slowed up to allow the appellant to complete the manoeuvre safely.

21 Particular (e) was, apparently, abandoned at trial. Particular (f), his Honour recorded at [51], was not the subject of any specific attention in submissions.

22 Finally, particular (g) was based upon the premise that the primary judge accepted that the respondent was aware that the collision had occurred and that he then left the scene of the accident in order to avoid detection. His Honour's rejected that premise at [52] of his reasons and it was not challenged on the appeal.

The respondent's case at trial

23 The respondent's case was simple: he was unaware of the collision and unaware of the attempt by the appellant to move into his lane. He neither saw nor heard the appellant's vehicle or the collision. He did not seek to avoid detection for he was made aware of the collision on the day that it occurred by his employer when he was requested to attend the Strathfield Police Station which he did on two occasions. In his police interview, when asked what happened, he responded that he did not know as he only found out when the police called him and requested that he attend the station which he did immediately. When asked what speed he was doing roughly at that time he responded that it was less than 60 kph. He answered in the negative when he was asked whether he remembered seeing the appellant's vehicle.

24 The appellant in his evidence did not suggest that the respondent's vehicle was speeding: in fact, his evidence was that he, the appellant, was travelling between 30 and 40 kph as was the traffic in the adjoining lane. His Honour accepted that evidence: see [8] above. Nevertheless, the appellant asserted that he heard the respondent's truck accelerate just as he was moving from lane 1 to lane 2 and it was that which caused the collision. Both the respondent and the police inspected the former's vehicle to ascertain whether there was any recent damage to it and found none.

25 In cross examination, the respondent accepted that at 9 am there would be traffic in lane 1 and that he further knew that that traffic would have to change lanes as it approached the termination of that lane. The following exchange then occurred:

Q. At the time that this accident was supposed to have occurred, you knew, did you not, that any vehicle that was ahead of you in that number 1 kerbside lane had right of way over you.

A. INTERPRETER: Yes.

Q. You knew that if any part of such a vehicle was ahead of your vehicle, that you had to give way to it.

A. INTERPRETER: Yes, of course.

26 The above question of the cross examiner was based upon the assumption that r 149 applied to the present case. As I have observed, his Honour found that that rule had no application and that the correct rule was r 148(1). Accordingly, the respondent was in error when he answered that he was aware that if any part of the vehicle in lane 1 was ahead of his vehicle, that he was obliged to give way to it. He was not.

27 As to the allegation that he had accelerated on observing the appellant's vehicle commencing to move to its right, the following exchange occurred in cross examination:

Q. Mr Silva, as you're driving along in your truck on an ordinary day, from time to time if there is a gap between you and the car in front, do you accelerate your truck?

A. INTERPRETER: No, because then I wouldn't be able to brake in time.

Q. On 29 June 2006, can you recall whether your truck was travelling at a consistent speed, or whether it changed speed from time to time in the vicinity of the accident scene that you saw in the photographs?

A. INTERPRETER: It's such a long time ago I don't remember. But I assume I was stopping and going.

Q. That would be quite normal. Sometimes you go a little bit faster sometimes a little bit slower.

A. INTERPRETER: Yes.

Q. If for some reason the cars in front were further away, you might go a little bit faster?

A. INTERPRETER: Yes.

Q. If those vehicles became closer to your truck, you'd then slow down again?

A. INTERPRETER: Yes.

Q. Did you, on 29 June 2006, purposely accelerate your truck to stop another vehicle changing lanes from number 1 to number 2 lane in the area of those photographs?

A. INTERPRETER: Not deliberately, no.

The primary judge's decision

28 At [17] his Honour observed that there was no direct evidence as to what part of the respondent's truck was hit by the appellant's vehicle. From a photograph of the truck in evidence his Honour inferred that the part of the truck which the appellant's vehicle hit was a silver metallic strip at the bottom of the near side of the rear section of the truck. He drew that inference because, as noted above, the truck was inspected for damage by the police after the collision and was found to exhibit no recent damage. However, both counsel agreed that the sliver metallic strip must have been the closest part of the truck to the appellant's vehicle at the time he began to change lanes.

29 The primary judge then dealt with the issue of the parties' credit coming to the conclusion that he regarded both the appellant and the respondent as honest witnesses who did their best to give their evidence as they recollected it. However, at [29] his Honour was cautious about accepting the appellant's evidence about matters such as distance and speed. He had admitted in cross examination that he could not be exact which was not surprising in the circumstances. He also considered that the respondent had given his evidence in a very careful manner when answering questions albeit through an interpreter.

30 At [32] the primary judge observed that the respondent's evidence was essentially what he had told the police, namely, that his speed along that part of the road approaching the merging point of lanes 1 and 2 was less than 60 kph. He also repeated that he had no recollection of seeing the appellant's vehicle and had not been aware of any collision at the time.

31 As to the allegation that the respondent failed to keep a proper look out, his Honour rejected the appellant's submissions on that issue finding at [37] that he was not persuaded that anything about the appellant's vehicle ought to have put the respondent on notice that the appellant's vehicle was attempting to change lanes. He accepted that the appellant had his right hand indicator on but considered that that was not sufficient to have given the respondent any warning that the appellant intended to attempt to move into lane 2 in front of the respondent's truck. His Honour then continued in terms of [38] of his reasons which I have recorded at [15] above.

32 His Honour then referred to the decision of the High Court in Sibley v Kais (1967) 118 CLR 424 at 427 and observed at [39]:

. . .Thus, if the [respondent] in this case saw the [appellant] part-way into his lane, and in front of him, and was in a position to alter his course, such as slow down by braking or otherwise, or moving right if he could, then he had an obligation, because of his obligation to take reasonable care, to take that sort of step, notwithstanding that the [appellant] owed people in his lane an obligation to give way to them.

33 His Honour acknowledged that the respondent remained under a duty of care, notwithstanding that the appellant may have breached any relevant duty imposed upon him, including a duty to take care for his own safety by ensuring that he did not move from lane 1 to lane 2 unless he could do so safely.

34 When dealing with particular of negligence (c), which asserted that the respondent accelerated his vehicle thereby bringing it into collision with that of the appellant, his Honour at [41] found that on the balance of probabilities he was not persuaded that that occurred. In this respect at [42] he accepted the respondent's evidence:

. . . that he did not deliberately speed up to stop people coming in front of him from the left-hand side. A gap of three metres, given the speed of the traffic at the time, needed I think, a very high degree of care on the part of the plaintiff in executing a lane change, particularly given the length of his car, which I took to be some four to four and a half metres. As later appears, I consider that what happened was the plaintiff simply misjudged the situation, and then was surprised, and I think concluded wrongly that the defendant must have sped up so as to cause the gap to close.

. . .

35 At [49] his Honour rejected particular (d) upon the basis, as already noted, that the appellant relied upon the wrong road rule. He concluded that the respondent had no obligation to give way to the appellant and that the contrary was the case.

36 The primary judge then, in effect, summarised his findings which are to be found at [55] - [62] of his reasons. Most of those findings I have already referred to. It is necessary only to state the following:

[60] . . .I find that the [respondent] did not observe the [appellant's] vehicle start to move to lane 2 and was not aware until police contacted him later that day that an impact had occurred. Further, I find that there was nothing about the [appellant's] vehicle or its driving which alerted him or ought to have alerted him to the fact that the vehicle was about to change course.

[61] The [appellant], I find, moved his vehicle when he did because he misjudged the distance between his vehicle and the [respondent's]. I am not persuaded of any breach of duty on the [respondent's] part or that his driving was responsible for the collision. The [respondent] had no obligation to give way to the [appellant]. The collision occurred between the right side of the [appellant's] vehicle and the rear of the [respondent's] truck in circumstances where the defendant had not been obliged to take any evasive action.

[62] Although the [appellant] said that the [respondent] had sped up, I am not persuaded that he did, and I consider that the [appellant] is in error about that.

In the foregoing circumstances his Honour found that the respondent was not in breach of his duty of care to the appellant and as a consequence entered a verdict and judgment in his favour.

The appellant's submissions on the appeal

37 On the issue of liability the appellant advanced six grounds of appeal which he addressed in some detail in his written submissions. He made the same submissions with respect to Ground 3 as were made with respect to Ground 1 and made the same submissions as to Ground 4 as were made with respect to Ground 2.

38 Grounds 1 and 3 read as follows:

Ground 1:

The primary judge made a determination that was glaringly improbable being a finding at [18] that the respondent was not aware at the time of the collision that it had occurred.

Ground 3:

His Honour erred [53] by failing to take into account as a relevant consideration the fact that persons by the side of the road heard or perceived the collision contrary to the respondent's version and were the source of information being the registration number of the respondent that had been given to the appellant as opposed to his Honour's treatment of that evidence which only went to the issue of whether or not those persons could be found and any adverse inference to draw from their non-appearance at the trial.

39 The appellant relied on the evidence with respect to the man who gave his name as Nathan Dodds and to which I have referred to at [17] above. It was submitted that the only rational inference to be drawn from that evidence was that the collision was audible and the sound significantly loud enough for others who were not on the road (such as Mr Dodds) but in its close vicinity to have heard the collision. Accordingly, his Honour's finding accepting the respondent's evidence that he did not know a collision had taken place could not stand as it was "glaringly improbable".

40 In my view, this submission is unsustainable. It constituted a challenge to a finding which was clearly open to the primary judge to adopt based on his acceptance of the respondent's evidence that he did not hear the collision. This submission is surprising as his Honour found at [60] that the impact was of a glancing nature and caused no discernable damage to the truck, a finding which is not challenged. The fact that Mr Dodds had, presumably, heard and/or observed the collision is not capable of giving rise to an inference that the respondent must have heard the collision from inside the cab of his truck in circumstances where there was no evidence one way or the other as to whether or not he had his windows open. There was no evidence as to where Mr Dodds was standing at the time or whether he was close to or far away from where the collision occurred. As his Honour noted, no adverse inference could be drawn from the fact that Mr Dodds was not called. On the other hand no inference favourable to either party can be drawn from the mere fact that he offered his assistance to the appellant. As there is no evidence as to what Mr Dodds might have said had he been called, this finding of the primary judge of which complaint is made was not " glaringly improbable" as alleged. It follows that Grounds 1 and 3 must be rejected.

41 Grounds 2, 4 and 5 are in the following terms:

Ground 2:

The learned trial judge made a determination that was glaringly improbable in that his Honour was not persuaded that anything about the appellant's vehicle ought to have put the respondent on notice, further the appellant had his blinker on but that ought not to have given any such warning to the respondent.

Ground 4:

His Honour erred by failing to determine that the respondent failed in all the circumstances to keep a proper lookout.

Ground 5:

His Honour erred by failing to determine that the respondent did not give way to the appellant's vehicle either pursuant to the Australian Road Rules or in the alternative in the exercise of reasonable care.

42 It was submitted that the evidence established first, that the appellant had activated his right hand indicator which would have signalled to anyone who saw it that he was intending, when he could, to change lanes. Secondly, a photograph of the truck revealed a cabin that was higher above the surface of the road than that of the appellant's vehicle. Thirdly, the driver's cabin of the truck had a large glass front windscreen which, so it was asserted, would have provided him with a wide and elevated view for the purpose of enabling him to keep a proper look out. However, no questions were directed in cross examination of the respondent along the lines of this submission to suggest that he must therefore have seen the appellant's vehicle move towards lane 2 and heard the collision.

43 It was further submitted that had the respondent been keeping a proper look out, he must have noticed that the appellant's vehicle was trapped in lane 1 and at some point needed to merge to the right into lane 2. Accordingly, the only possible inference that could be drawn was that the respondent was not keeping a proper look out for vehicles who were seeking to so merge.

44 In support of those submissions the appellant in oral argument relied on the following passages from the joint judgment of Gummow, Kirby and Hayne JJ in Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 at 415:

[11] ... But recognising one possible source of danger does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path.

[12] ... But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.

45 However, neither of the above passages required his Honour to find that the mere fact that the appellant had engaged his right hand indicator light thereby signalling that he intended to move at some point out of his lane into the adjoining lane of itself required the respondent to take some particular action to enable the appellant to do so. Nor did they require the respondent to keep the appellant's vehicle under constant surveillance in order to be able to react in the event that the appellant decided at some indeterminate point on the roadway to attempt to move in front of the respondent's truck.

46 The foregoing has particular force given that the appellant's evidence, apparently accepted by the primary judge, was that when he commenced to move out of lane 1 the respondent's vehicle was only three metres behind the rear of his vehicle and travelling at a speed of at least 40 kph. I can accept that had there been a substantially greater distance than three metres between the two vehicles, such as to have enabled the respondent to observe the appellant's vehicle moving to the right into the respondent's lane in a more gradual movement than what appears to have been the case, then no doubt the respondent had a duty to take reasonable care to ensure that he did not collide with it. He may have had to apply his brakes to slow up if he considered that he was getting too close to the appellant's vehicle. But that was not this case.

47 The problem with which the appellant was faced, as the evidence established, was that it was not until he was 15 to 20 metres from the end of lane 1 that he judged that there was a sufficient gap in the traffic in lane 2 into which he could move. The inference to be drawn from that is that he moved very suddenly to the right for otherwise he was going to run out of road space. The evidence was clearly sufficient to justify the primary judge's finding (at [61]) that the appellant simply misjudged the situation and, in particular, misjudged the gap between his and the respondent's vehicle as being sufficient to enable him to move safely in front of that vehicle without colliding with it.

48 The appellant in oral argument acknowledged that his submissions were necessarily predicated upon the assumption that when he decided to move out of lane 1, his vehicle was in front of the respondent's truck in lane 2. As I have noted at [47] above, the primary judge seems to have accepted that this was so at [59] of his reasons, albeit that the extent of separation was only three metres. However his Honour also found (at [60]) that the respondent did not observe the appellant's vehicle commence to move into lane 2 and was not aware of any impact between the two vehicles.

49 The fact that there was no damage to the front of the respondent's truck and that his Honour's findings (at [60]) that the impact was of a glancing nature and occurred at the bottom of the near side of the rear section of the truck (at [17]), leads inevitably to the conclusion first, that it was the appellant's vehicle which collided with the rear section of the respondent's truck and, secondly, for that to have occurred the appellant's vehicle could not have been in front of the truck as he asserted.

50 Recognition of this fact was sought to be met by the appellant asserting, and his Honour rejecting (at [41] - [42]), the allegation that on observing the appellant commencing to move out of lane 1, the respondent deliberately accelerated his vehicle in order to close the gap between them so as to prevent the appellant from moving in front of him.

51 Ultimately, in oral argument, the appellant accepted, properly in my view given the evidence, that once it was acknowledged that the point of collision was on the silver metallic strip along the bottom of the rear section of the truck, that was the end of his case subject only to the acceleration issue which his Honour, in my opinion, was entitled to and did reject.

52 But even if the appellant's vehicle was some three metres in front of the truck when the former commenced to move out of lane 1, the appellant's case depended, as his counsel acknowledged, on the following propositions. First, the respondent knew that lane 1 was a merging lane and was therefore going to terminate; secondly, he ought to have observed the fact that the appellant had activated his right hand indicator on; thirdly, the respondent should therefore have anticipated that the appellant would need to move into lane 2 before he came to the end of lane 1; and fourthly, he was under a duty or obligation to slow down to permit him to do so safely and his failure to do so was a breach of his duty of care.

53 Not only was the respondent not under the duty referred to but Rule 148(1) of the ARR mandated the appellant to give way, not the respondent. There is nothing in the principles in Manley relied on by the appellant which required the respondent to respond to the appellant's need to move lanes by slowing down and giving way to him.

54 Accordingly, in my view, no error on the part of the primary judge has been demonstrated to suggest that it was not open to his Honour to find that the respondent was not guilty of failing to keep a proper lookout or that he was in breach of his duty of care by failing to facilitate the appellant's need to move from lane 1 into lane 2. Grounds 2, 4 and 5 should be rejected.

55 Ground 6 reads as follows:

His Honour miscarried his function as the trial judge by drawing inferences against the appellant's case which did not have a sound basis on the evidence and accepted the respondent's evidence as to the version of the collision in circumstances where the respondent gave evidence admitting that he had a poor recollection of the events leading up to and causing the collision and that the conclusions of the Trial judge in favour of the respondent were glaringly improbable.

56 This ground does not in substance differ from Grounds 1 and 3. It contains an assertion that the primary judge should not have accepted the evidence of the respondent that he did not see the appellant's vehicle and/or was unaware of the collision. It is a nonsense to submit, as does the appellant, that the primary judge's function as a trial judge miscarried when he accepted the credibility of both witnesses but yet accepted the respondent's evidence that he had no recollection of the collision.

57 There is, of course, no inconsistency between his Honour accepting both the appellant and the respondent as honest witnesses as well as accepting the version of each of them, namely, that the appellant attempted to move into the lane in which the respondent was travelling when the two vehicles were a mere three metres apart and the evidence of the respondent that he simply did not see the appellant's vehicle or hear or understand that a collision had taken place.

58 Nevertheless, in his written submissions, the appellant asserted that it would be "incredible" if the respondent did not know that a collision had taken place despite the fact that it had been heard by others by the side of the road or in close proximity, a reference apparently to Mr Dodds. I have already dealt with this submission which has no substance.

59 It was next submitted that given the amount of damage to the appellant's vehicle, it could only be speculative that there was no apparent impact, noise or vibration in the respondent's vehicle so as to give him notice that a collision had in fact occurred. The difficulty with this submission, as I have already observed, is that there was no damage to the respondent's truck and his Honour found that the impact was of a "glancing" nature which would explain why the respondent was unaware of it.

60 The appellant's written submissions then asserted that notwithstanding the primary judge's findings that the respondent did not observe the appellant's vehicle commencing to move from lane 1 to lane 2 and that there was nothing about that vehicle or the manner in which it was being driven which alerted or ought to have alerted him to the fact that it was about to change lanes, nevertheless there was a breach of the respondent's duty of care in such circumstances as he should have had in contemplation that it was likely that a vehicle in the merging lane would make an attempt to move into the adjoining lane thus requiring the respondent to travel at a safe speed and to keep a proper look out in the event that that manoeuvre materialised.

61 In my view this submission has no merit for the reasons stated at [52] - [53] above. It in effect required the respondent to be a mind reader. He was entitled to assume that any vehicle wishing to move from lane 1 to the adjoining lane would do so safely when there was a sufficient gap in the line of traffic to enable him or her to do so. On the appellant's own case, there was an insufficient gap notwithstanding the appellant may have thought it was sufficient. It was only three metres and the respondent's vehicle was travelling possibly in excess of 40 kph but less than 60 kph.

62 A gap of three metres when the respondent was travelling at least at 40 kph and the appellant between 30 and 40 kph simply did not provide a sufficient space into which the appellant could move in a manner which would alert the respondent in sufficient time to enable him to react in an appropriate manner such as slowing his vehicle.

63 Essentially Ground 6 is one asserting that it was "glaringly improbable" on the evidence for the primary judge to accept the respondent's evidence that he did not see the appellant's vehicle before it intended to move out of lane 1 and that he was unaware that the appellant's vehicle had collided with his truck. There is no merit in this submission for the reasons already given. The appellant's vehicle would have been one of a number in lane 1 which probably had their right hand indicator activated. There was nothing special about the appellant's vehicle which did not apply to those vehicles which were travelling in lane 1 in front and behind him. There is no substance in Ground 6 and it should be rejected.

Conclusion

64 In my opinion, no error in the findings of the primary judge was demonstrated which would have justified appellate intervention. In these circumstances, it was unnecessary to deal with the other issues raised on the appeal, namely, the issue of the appellant's contributory negligence and a complaint by the appellant as to his Honour's assessment of the appellant's past and future economic loss upon the assumption that he was in error on the issue of liability.

65 It was for the foregoing reasons that I joined in the Court's order that the appeal be dismissed with costs.

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Decision last updated: 27 September 2012