Adamson v Lim-Bott - [2003] WADC 273

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ADAMSON -v- LIM-BOTT [2003] WADC 273

CORAM: JENKINS DCJ

HEARD: 3 OCTOBER 2003

DELIVERED : 5 DECEMBER 2003

FILE NO/S: CIV 3047 of 2002

BETWEEN: DONALD JAMES ADAMSON
Plaintiff
AND
JANDON LIM-BOTT
Defendant

Catchwords:

Negligence - Road accident case - Liability only - Counterclaim by defendant alleging that the plaintiff was negligent - Contributory negligence - Turns on own facts

Legislation:

Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947

Result:

Liability apportioned 60 per cent against plaintiff and 40 per cent against defendant

Representation:

Counsel:

Plaintiff: Mr T Lampropoulos
Defendant: Mr B L Nugawela

Solicitors:

Plaintiff: Simon Walters
Defendant: Friedman Lurie Singh

Case(s) referred to in judgment(s):

March v E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506
Sibley v Kais (1967) 118 CLR 424
Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25

Case(s) also cited:

Nil

JENKINS DCJ: The plaintiff, Donald James Adamson, seeks damages for injuries he alleges he received in a motor vehicle accident between a vehicle driven by him and a vehicle driven by the defendant, Jandon Lim‑Bott. By counterclaim Mr Lim‑Bott seeks damages for the alleged injuries that he received in the same accident. The accident occurred on 28 June 2001 at the intersection of Vincent and Oxford Streets, Leederville ("the intersection"). The trial was limited to the issue of liability with respect to the plaintiff's claim and the defendant's counterclaim.

Pleadings

The plaintiff claims that the accident was caused by the defendant's negligent manner of driving, in particular that the defendant was negligent in:
"(a)failing to keep any or any proper lookout;
(b)failing to drive with any or any proper control;
(c)driving at a speed which was excessive in all the circumstances;
(d)failing to brake in time to avoid the collision at all; and
(e)failing to steer or control the motor vehicle so as to avoid the collision."
By counterclaim the defendant pleads that the accident was caused by the negligence of the plaintiff, in particular that he:
"(a)failed to keep any or any proper lookout;
(b)failed to drive with any or any proper control;
(c)attempted to cross Vincent Street in front of the defendant's vehicle when it was unsafe to do so;
(d)failed to wear proper corrective lenses for driving;
(e)failed to steer or control his motor vehicle so as to avoid the collision."
At the commencement of the trial the defendant applied to amend his defence by inserting a plea of contributory negligence with the same particulars as is in his plea of negligence in the counterclaim. The plaintiff consented to this amendment on the basis that it would then enable me to apportion liability between the parties if I found that both parties had contributed to the accident. I allowed the amendment.

The plaintiff's case

The plaintiff gave oral evidence and called Dean Bradley McKenna, a school teacher, who was standing on one corner of the intersection at the time of the accident. The plaintiff also tendered notes made within hours of the accident by his brother who was a passenger in his vehicle at the time of the accident. Sadly, Mr Adamson's brother had passed away by the time of trial. Understandably as she is in her 80's and lives interstate, Mr Adamson's sister‑in‑law, the only other passenger in the vehicle, was not called to give evidence.
The plaintiff's case is that he was 66 years of age as at 28 June 2001 and on that date he drove his brother and sister‑in‑law to Lake Monger in his Toyota Hi Ace campervan. Around lunch time they left Lake Monger. Mr Adamson was driving and his sister‑in‑law was sitting next to him. His brother was sitting in the rear on the passenger side. They travelled away from Lake Monger in an easterly direction along Vincent Street. Mr Adamson was intending to turn right at the intersection for the purpose of finding a car park and taking his relatives to lunch. The weather was fine and the visibility good.
As the plaintiff approached the intersection he was travelling in the right hand lane, that is the lane closest to the middle of the road. At the point of the intersection Vincent Street has two lanes in each direction. Each lane is approximately 2.9 metres wide. The lanes for traffic travelling in an easterly direction allow traffic in the left hand lane to travel east or turn left into Oxford Street to travel in a northerly direction and traffic in the right hand lane to travel east or to turn right in a southerly direction into Oxford Street. The intersection is controlled by traffic lights. There is a separate phase for pedestrians but not a separate phase for turning traffic. For vehicles travelling in a westerly direction along Vincent Street, approaching the intersection, there are two lanes. The right hand lane, the lane closest to the centre of the road, allows traffic to travel through the intersection in a westerly direction or to turn right in a northerly direction along Oxford Street. The left hand lane allows traffic to travel in a westerly direction or to turn left in a southerly direction along Oxford Street. The intersection itself is not large and given the number of manoeuvres able to be, and commonly, made at the intersection it is necessary for drivers to be particularly careful when using the intersection.
The plaintiff approached the intersection from the west and indicated to turn right into the southern portion of Oxford Street. There was a green light facing him so he drove into the intersection. He said he then waited until the red light was coming up so he could do a right hand turn. He said that when the red light came up it was about the time that his brother screamed out to him that "there's an idiot coming through the red light. He's going to hit us." Mr Adamson says he looked up the road and 40‑50 metres on the other side of Vincent Street he saw a vehicle with smoke coming from its tyres. It is now clear that it was the defendant's vehicle. He inferred that it had tried to brake suddenly but could not stop. He said that he saw the defendant's vehicle coming towards him with the defendant in a slumped driving position. He said the defendant's vehicle hit him on the right hand front side of his campervan and spun it around. He said that he thought that the defendant's vehicle had hit him nearly "head on". Mr Adamson said he could not be 100 per cent certain whether he had commenced his turn, that is, whether he was moving, at the time of the accident but his opinion was that he was not moving. He said he was just getting into gear ready to turn at the time of the accident. His case is that the defendant braked too late, then skidded onto the wrong side of road and into his vehicle.
The plaintiff was cross‑examined about the sequence of events as he recalled them and he said that he went into the intersection, saw an amber light and no vehicles approaching. He was then quite happy to start to manoeuvre right until his brother yelled out. He then looked up and 20‑30 metres up the road, that is in an easterly direction, he saw the defendant's vehicle approaching and he also saw that there was a red light. He acknowledged that the first time he took any notice of the defendant's car was when it was 30 metres away. Thus he had not seen the defendant's vehicle when he had initially looked up the road to see whether it was clear to commence his turn.
Mr Adamson was taken to hospital in a neck brace and was released at approximately 5.00 pm the same afternoon. Mr Adamson testified that he then went to the airport to see his brother and sister‑in‑law leave to return to their interstate home and at that time his brother gave him his notes relating to the accident. The notes were admitted pursuant to s 79C of the Evidence Act 1906. The notes are not detailed. They contain details of apparent witnesses, the defendant and his car. They also contain a simple sketch of the accident site. Mr Adamson's vehicle is shown partially into the intersection and partially on the wrong side of the road. There are two notes against his vehicle. The first says "stationary" and the other says "our car waiting to do a right hand turn". There is a red light shown on the corner facing the plaintiff's car. The defendant's car is shown with its nose just past that red light.
Mr Adamson was cross‑examined about a crash report form that he completed for submission to the Insurance Commission of Western Australia in July 2001. In that form Mr Adamson answered a number of questions. Relevantly, he stated that his position was in the centre of the intersection waiting to turn right. In relation to two questions as to how far he was from the defendant's vehicle when he first saw it and how far the defendant's vehicle was from the intersection he answered compendiously "4 to 5 metres coming into the intersection". He stated that his vehicle was stationary prior to impact and the approximate speed of the defendant's vehicle was 60 kilometres per hour. Paradoxically he said that the lights in his favour were green and against the defendant they were red. Of course this cannot be true as both drivers were travelling in the same light phase. In re‑examination he said that his answer meant that the lights were green when he entered the intersection and red when the defendant entered the intersection. Mr Adamson indicated on a diagram that the point of impact with his vehicle was to the front right hand side and the point of impact to the defendant's vehicle was at the front on both sides. In the section in which he was asked to give a full statement setting out circumstances of the crash he relevantly wrote as follows:
"Entered into section when had green light – waiting. To turn right. Light turned amber – checked nothing was crossing late. Ok no car. Next I know brother was screaming – that other car was crossing against red light and was heading our way at a fast rate – skid marks for many metres – no evasive action taken by other driver – he slid down seat holding chest. As if having heart attack."
Mr Adamson was cross‑examined as to whether his vehicle had moved into the path of the defendant's vehicle prior to the accident occurring. Mr Adamson said that he could not be 100 per cent sure whether his vehicle had moved or not. He acknowledged that it could have moved "just a fraction" but that he felt that he was merely turning the steering wheel in preparation for moving. He admitted that he had told the police, on the day of the accident, that he had just started to turn at the time of the accident. He said at that time he was a bit of a "mess".
Mr McKenna gave evidence that he was standing on the north east corner of the intersection waiting to cross Vincent Street to walk south into Leederville. He was with a number of people and one of them said something to bring his attention to the vehicles in the intersection. Within his field of vision he saw the defendant's vehicle hesitate as it entered the intersection and it then skidded into the plaintiff's campervan. Mr McKenna testified that he had not consciously observed the plaintiff's vehicle prior to the accident. Mr McKenna said that the mechanics of the accident were not the first thing on his mind as he went to assist the parties. However, he thought that the defendant's car hit the plaintiff's car in the centre of its front as it was at an angle of approximately 45 degree to Oxford Street. It is also noteworthy that in the diagram he drew the defendant's vehicle is entirely within its lane but the plaintiff's vehicle is straddled across its lane as well as the defendant's lane.

The defendant's case

The defendant gave evidence. He also called Neil Joseph Preston, a psychologist, who was standing on a corner of the intersection at the time of the accident, Edward George Lamperd, the investigating police officer and Bohdan Sedzimir Generowicz, an expert witness, to give evidence. Mr Lim‑Bott is apparently quite deaf and he consequently gave his evidence with the assistance of a transcriber. The transcriber had a transcription machine upon which she typed the questions asked of Mr Lim‑Bott. These questions then appeared on a lap top computer that was in front of the defendant. The defendant then read the questions and answered them verbally. I am entirely satisfied that by this method all questions asked of Mr Lim‑Bott were adequately communicated to him.
Mr Lim‑Bott was 70 years of age at the time of the accident. He testified that on the morning of 28 June 2001 he was driving his Mitsubishi Mirage sedan in a westerly direction on Vincent Street for the purpose of taking his wife on a picnic lunch at Lake Monger. He testified that after travelling through the Loftus Street intersection with Vincent Street, the intersection immediately before the Oxford Street and Vincent Street intersection, he had some difficulty due to the fact that two other vehicles overtook him. The first passed easily but with respect to the second car he had to brake to allow the car to get in front of him. Immediately after that he accelerated in an attempt to regain speed. Consequently as he approached the intersection he was accelerating. He noticed that the traffic control light turned amber and he had to make a decision as to whether he would stop or continue through the intersection. He said he made the decision that it was safer to proceed through the intersection rather than to try and stop. He estimated he was travelling at 35 kilometres per hour. He said that as he went through the intersection he was shocked to see the plaintiff's campervan suddenly turn in front of him. He said that his first reaction was complete paralysis but he then reacted through experience by taking his foot off the accelerator and braking. He testified that his car did not veer either left or right but rather went straight forward until the collision point. He said that his car was damaged on the front right hand side and the plaintiff's campervan was damaged on the front left hand side corner. After the collision he was in a lot of pain and could not move. He was adamant that the plaintiff did not have any passengers in his car. Mr Lim‑Bott was patently wrong in that respect. Mr Adamson's evidence concerning the presence of passengers was corroborated by the independent witness Mr McKenna and I have no difficulty accepting that Mr Adamson's brother and sister‑in‑law were in his vehicle.
As to whether he was slumped in the seat, Mr Lim‑Bott said that he was at all times in full control of his faculties. I accept that there is insufficient evidence to establish that Mr Lim‑Bott was in any ill health at the time of the accident.
In cross‑examination Mr Lim‑Bott said that he was closer to 10 metres than 50 metres from the intersection with Oxford Street when the second car finished his overtaking manoeuvre and cut in front of him. Mr Lim‑Bott said he then accelerated from approximately 35 kilometres per hour but as he reached the intersection he would not have been doing more than 60 kilometres per hour. Mr Lim‑Bott said that the lights changed from green to amber when he was about equal with the white line indicating the commencement of the intersection.
Mr Lim‑Bott said that he had seen the plaintiff's campervan enter the intersection and in his view it had slowed down but did not stop prior to turning in front of him. However, he said he could not be sure about that, as in his view it is not possible when in a moving vehicle to estimate whether a vehicle approaching from the opposite direction is stationary or moving.
Mr Preston gave evidence that at the relevant time he was standing on the south eastern corner of the intersection waiting to cross Vincent Street. Mr Preston said he saw the defendant's vehicle entering the intersection and it seemed to hesitate in some way, in his view, to anticipate the intentions of the plaintiff's vehicle which was trying to turn right into Oxford Street. He said there was a sort of a jerking movement with the car. He believed that the jerking movement he noticed of the defendant's car was the car braking. He believed that the defendant's car was travelling at about 20 or 30 kilometres per hour. Mr Preston said that it then proceeded and the two cars "hit sort of together".
He said that he recalled that the pedestrian phase of the lights then started and he and his brother crossed the road. He then noticed that the defendant was in distress. When he was asked how long after the accident the pedestrian phase commenced he said he could not recall and that his estimate would probably be a little inaccurate but when pressed said that it was maybe five or ten seconds after the accident. He said he did not recollect the colour of the traffic lights that were facing the vehicles at the time of the accident. Mr Preston said that his observation was that the defendant's car remained heading in a westerly direction within its lane. Whereas the campervan was on the defendant's side of the road, albeit only by 10‑20 centimetres. He said because of the tightness of the intersection he had a sense of congestion.
He initially said that his recollection was that the campervan was attempting, in the sense of moving, to turn right into Oxford Street immediately before the accident. However, in cross‑examination, he said that his recollection was that immediately prior to the collision the campervan was stationary. He confirmed this in re‑examination.
Constable Lamperd gave evidence of attending the accident scene and noting in his report that there were skid marks immediately behind the defendant's vehicle. He said that he did not recall measuring these. He said that they commenced from the solid white line indicating the eastern start of the intersection.
In cross‑examination Constable Lamperd said he had taken a statement from the plaintiff at the scene and in this statement the plaintiff had said:
"The lights facing me was (sic) green. I was waiting for traffic to clear. The light turned red, so I started to turn as I was already in the intersection. I looked up and saw this car hurtling towards me. It hit me at the front. He was travelling in the lane closest to the middle of the intersection."
Mr Generowicz gave evidence that on 6 April 2003 he had attended at the intersection and timed the lights. Relevantly he noted that when the Vincent Street phase was green, the pedestrian signals had a slow tick which continued until the Vincent Street light had changed from green to amber to red and for three seconds thereafter. The pedestrian phase then commenced. He said that he had verified with the Main Roads Department that the phases had not changed since the date of the accident.

Findings

Neither party is a patently unreliable witness. Both parties appeared to be of good character and to genuinely believe the evidence they gave. However it is well known that people personally involved in a crisis, such as a motor vehicle accident, often see the events completely differently. There is also a natural tendency to rationalise what occurred in a way most favourable to the particular individual. Further, because of the rapid sequence of critical events and the sudden and surprising nature of them much of what a person later recalls is in fact reconstruction of the events. This is exacerbated when a person is injured or suffers a physical reaction to the accident as happened to both parties in this matter. In my opinion these matters have affected the reliability of the evidence of both parties.
In the case of Mr Lim‑Bott there is clear evidence that his recollection of the events immediately after the accident is faulty in that he has no recollection of seeing the passengers in the plaintiff's car. This makes me cautious of relying upon his evidence unless it is supported by independent evidence.

Both parties recollections of the events preceding the accident cannot be correct. There is a direct inconsistency as to the colour of the lights, whether the plaintiff's vehicle had turned at least partially into the defendant's lane and whether the defendant's vehicle skidded into the plaintiff's lane and the plaintiff's vehicle.
I have tested both parties accounts against the evidence of the independent witnesses, although I acknowledge that care must be taken in this as neither of the independent witnesses saw or recalled all relevant matters. I have also tested the parties' accounts against my common sense and experience as a road user.
I do not accept the plaintiff's evidence that the traffic control light had turned red prior to the defendant entering the intersection. This appears to me to be inconsistent with the independent witnesses' evidence as to the commencement of the pedestrian phase of the lights. The evidence of Mr McKenna was that he had the impression that the intersection had cleared of cars and so he was preparing to walk across the intersection. However the inference I draw from his evidence is that the pedestrian phase had not started at the time of the accident. With respect to Mr Preston his evidence was to the effect that he was still waiting on the kerb for the pedestrian phase to commence when the accident occurred. His evidence was that the pedestrian phase started a short time after the accident. In my opinion these recollections are more consistent with the defendant going through the intersection on an amber light. However the timing would indicate that the light had been amber for some time prior to the defendant entering the intersection and that it turned red at or about the time of the accident.
I accept the evidence of the defendant that his vehicle remained wholly within his lane. I reject the plaintiff's evidence that the accident occurred due to the defendant skidding into the plaintiff's lane. This is because the defendant's evidence is supported by that of Mr Preston and that of Mr McKenna insofar as his drawing of the accident shows the defendant fully within his lane. This finding is not inconsistent with the evidence to the effect that Mr Lim‑Bott braked heavily at least from the commencement of the intersection. The skid marks and other evidence is consistent with Mr Lim‑Bott braking heavily, but too late, to avoid the accident.
I find that the plaintiff's vehicle had commenced its turn in that it was at least partially in the defendant's lane and was on an angle at the time of the accident. This is because the plaintiff believed the defendant was going to stop and not enter the intersection. It is also consistent with the independent witnesses' evidence and common sense. Given the late stage of the phase of lights I am satisfied he would have commenced his turn by this time.
I am satisfied that the defendant, being the vehicle travelling through the intersection, had the right of way. Notwithstanding that, as I am satisfied that the light had changed to amber some time prior to the defendant entering the intersection, the defendant should have been driving his vehicle in such a manner that he was able to stop at the white line on the amber light. He did not to do so. Rather he proceeded into the intersection despite being aware that the plaintiff was waiting to execute a right hand turn. The defendant, had he been exercising proper care and attention, should have anticipated that as the light phase was coming to an end, the plaintiff would attempt to, and in order to clear the intersection would need to, execute the right hand turn before the commencement of the next light phase. Had the defendant been driving with due care he would not have commenced to accelerate after the second car passed him when he was so close to the intersection. If he had not done so he would have been travelling at a slower speed and been able to stop on the amber light.
As was said in Sibley v Kais (1967) 118 CLR 424 at 427:
"The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to 'reasonable care' is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected."
However the plaintiff must bear the primary responsibility for the accident as he did not have the right of way and he had the responsibility to ensure that he did not turn in front of an oncoming vehicle, particularly when that vehicle had the right of way according to the traffic signals. The plaintiff chose not to bring his vehicle to a stop at the white line indicating the commencement of the intersection. Rather, he proceeded into the intersection in order to facilitate his right hand turn. Further, he did not remain in his lane but allowed his vehicle to partially occupy the defendant's lane. A further matter I have taken into account is that the plaintiff failed to pay proper attention to the oncoming traffic. He acknowledged that he did not see the defendant's vehicle until his brother called out. This was after the plaintiff had looked up in an easterly direction Vincent Street and determined that it was clear for him to turn. There was nothing obstructing the plaintiff's view and he should have seen the defendant's vehicle and appreciated that the defendant's vehicle may attempt to proceed through the intersection on the late amber light.
In coming to my findings against the plaintiff I have taken into account his brother's note. It indicates that at the time of the accident the light was red. This is consistent with my findings. I have not had the opportunity of hearing the plaintiff's brother's evidence and thus I do not know when he would have said the light turned red.
Courts recognise that there are concurrent and successive causes of damage on the footing that liability will be apportioned between the parties: March v E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506. This is an obvious case where both parties should be found to have contributed to the accident and any injuries resulting from it.
Apportioning liability between the parties involves a comparison of the culpability of the parties. In Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25‑29 Hayne J said that apportionment legislation such as the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947:
"Is predicated upon a finding that a person suffers damage as a result partly of the person's own fault and partly of the fault of any other person or persons. No doubt the making of the apportionment which the legislation requires involves comparison of the culpability of the parties, ie, the degree to which each has departed upon the standard of what is reasonable, but that is not the only element to be considered. Regard must be had to the relative importance of the acts of the parties in causing the damage and it is the whole conduct of each negligent party in relation to the circumstance of the accident which must be subjected to comparative examination."
I have already reached the starting point, that is to say that both parties are liable for any damage incurred as a result of the accident.
As to a comparison of the culpabilities of the parties, having regard to the relevant importance of the acts of the parties in causing any damage, in my opinion, for the reasons given earlier, the plaintiff is primarily culpable. However, the defendant's negligence also played a major part in the accident. His conduct fell far short of that which is expected from him. In my view the plaintiff's contribution to the accident is that he is 60 per cent liable. The defendant's contribution is 40 per cent.
In light of the pleadings I will hear counsel as to final orders.