Amin v Van Dam
[2018] WADC 136
•19 OCTOBER 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: AMIN -v- VAN DAM [2018] WADC 136
CORAM: TROY DCJ
HEARD: 14 SEPTEMBER 2018
DELIVERED : 19 OCTOBER 2018
FILE NO/S: CIV 3667 of 2017
BETWEEN: MARINDA ANNE AMIN
Plaintiff
AND
BENJAMIN PETER VAN DAM
Defendant
Catchwords:
Negligence - Personal injury - Collision near controlled junction - Turns on own facts
Legislation:
Civil Liability Act 2002 (WA), s 5B, s 5K
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), s 4(1)
Result:
Judgment for the plaintiff on the claim, reduced by 25% for contributory negligence
Representation:
Counsel:
| Plaintiff | : | Mr DR Clyne |
| Defendant | : | Ms H Richardson |
Solicitors:
| Plaintiff | : | Simon Walters |
| Defendant | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Astley v Austrust Limited [1999] HCA 6; (1999) 197 CLR 1
British Fame (Owners) v Macgregor (Owners) (1943) AC 197
Fox v Percy (2003) 214 CLR 118
Jones v Dunkel (1959) 101 CLR 298
Manley v Alexander (2005) 223 ALJR 228
O'Connor v Insurance Commission of Western Australia [2016] WASCA 95
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529
State of New South Wales v Fahy (2007) 232 CLR 486
The Council of The Shire of Wyong v Shirt (1980) 146 CLR 40
The Quadriplegic Centre Board of Management v McMurtrie [2009] WASCA 173
Town of Port Hedland v Reece William Hodder by next friend Elaine Georgina Hodder (No 2) [2012] WASCA 212; (2012) 43 WAR 383
TROY DCJ:
Introduction
At about 5.30 pm on 26 June 2016 the then 35‑year‑old plaintiff, Ms Marinda Amin, drove down a street called The Crescent in Maddington. Ms Amin approached a T‑junction which required her to give way to her right and to her left. Having initially stopped at the junction, Ms Amin drove into Albany Highway endeavouring to turn right. Her vehicle was struck to its right-hand side by a utility vehicle driven along Albany Highway by the 18‑year‑old defendant Mr Benjamin Van Dam. Mr Van Dam had just driven through a railway crossing, a very short distance to Ms Amin's right.
Mr Van Dam accepted that when he drove through the railway crossing the warning lights were flashing and the boom gate was just about to descend. Mr Van Dam accelerated his vehicle so as to get across the railway crossing, although he asserts he did not exceed the posted speed limit.
On behalf of Ms Amin, counsel accepted that she had an obligation to give way to Mr Van Dam's vehicle but that she did not do so. Ms Amin's evidence was that she did not see Mr Van Dam's vehicle prior to the collision.
Mr Van Dam contends that his driving was not negligent but on his behalf counsel submitted that if that was established, then any injuries, loss or damage were caused by or contributed to by the plaintiff's negligence.
Negligence of the defendant
The first issue for resolution is whether the plaintiff has established on the balance of probabilities that Mr Van Dam's driving was negligent.
The principles governing a claim in negligence between two motorists are governed by a combination of common law and the Civil Liability Act 2002 (WA). It is well established that one motorist owes another a duty to take reasonable care to avoid reasonably foreseeable risks.
I apply the observations of Dixon CJ in the well‑known case of Jones v Dunkel (1959) 101 CLR 298, 304 ‑ 305:
[We] are not concerned with a choice among rival conjectures. In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true that 'you need only circumstances raising a more probable inference in favour of what is alleged'. But 'they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture …'
The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.
In a similar vein, in Fox v Percy (2003) 214 CLR 118 [31] ‑ [32] Gleeson CJ, Gummow & Kirby JJ encouraged trial judges to limit reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. Their Honours noted that this does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.
The respective evidence of the accident
In this case the only witnesses were Ms Amin and Mr Van Dam. There were no independent witnesses. There was, however, a statement of agreed facts between the parties.
Both Ms Amin and Mr Van Dam were familiar with the intersection of Albany Highway and The Crescent, although as Mr Van Dam had only been driving for about six months, I find he was less familiar with the intersection than Ms Amin.
According to Ms Amin the accident occurred at around about 5.40 pm. It was getting dark so that cars had their headlights on. Ms Amin intended to turn right so as to go north on Albany Highway. She stopped at a dotted white line. She looked to her right and then to her left. I accept her unchallenged evidence in that regard.
At the time that Ms Amin was stationary at the intersection, the red lights and bells started to flash and to sound at the railway crossing immediately to her right.
Ms Amin testified that she could see two cars stationary at the railway crossing heading north, that is in the direction that she was proposing to travel. She could also see, on the other side of the railway crossing, one car travelling in a southerly direction stopped in the lane closest to the middle of the road.
Ms Amin testified that the boom gates started to come down, so she looked left and right again and started to proceed across into the middle of the road to turn right into the left lanes. She stated there was a sudden, 'big collision'. She did not know what had happened.
I do not accept Ms Amin's evidence that she looked to the right for a second time before proceeding towards the middle of the road. If she had done so, she would have been bound to see, and probably hear, Mr Van Dam's vehicle, which struck her car almost as soon as she emerged from The Crescent into Albany Highway.
Rather, I find that having satisfied herself initially that there were no vehicles coming from her right, Ms Amin assumed that no vehicles would drive through the railway crossing in these circumstances. That is, at a time when the lights were flashing, the bells were sounding and the boom gates were starting to come down. Accordingly, she drove into Albany Highway without checking to her right for a final time, having assumed that it was bound to be clear on that side.
In cross‑examination, Ms Amin accepted that Albany Highway is quite a busy road and that her past experience was that one could be waiting quite a long time at The Crescent to turn right, depending on the time of day. This was 5.40 pm on a Sunday night.
On behalf of Ms Amin, Mr Clyne accepts that Ms Amin had a primary obligation to give way to her right at the T‑junction. He contends that the manner of Mr Van Dam's driving amounted to negligence and to a significantly greater extent than that of Ms Amin. If that is so, then the matter then becomes one of an apportionment of liability.
In evidence Mr Van Dam testified that as he approached the railway crossing he was driving at or within the speed limit. In cross‑examination he stated that he was driving at 70 km per hour. He accepted that when he saw the red lights come on he sped up. He, initially at least, denied driving at 75 km per hour or more at any point, although at one stage he conceded that he could have gone as quickly as 75 km per hour. At the point of impact he was not looking at his speedometer.
It seems clear that there were no cars immediately in front of Mr Van Dam in his lane and two cars to his right. I find that the overwhelming probability is that Mr Van Dam would have been driving at very close to the speed limit, but there is no reason for me to conclude that, prior to crossing the railway, he was speeding.
Mr Van Dam then saw the lights start to flash red when he was at the beginning of a median strip, north of the railway. He described that location as a little parking spot in between the two roads. There is no scale to any of the diagrams or photographs that I have been provided with, but this point appears to be approximately two car lengths from the boom gates that Mr Van Dam drove through.
Mr Van Dam then made what he described on a number of occasions as a 'judgment call' to proceed through the railway crossing.
In cross-examination Mr Van Dam maintained that if he had stopped he would have to do so very abruptly and possibly on the yellow hatching. Mr Van Dam's evidence on that point is inconsistent with the fact that two other vehicles travelling parallel with him in the other lane, and driving at the same approximate speed were plainly able to safely stop prior to the railway crossing. In re‑examination Mr Van Dam asserted that they stopped abruptly.
It was an agreed fact between the parties that if a train was approaching at 80 km per hour the lights would flash and the bells sound for at least six seconds before the boom gates started to lower. If the train was travelling at a slower speed than a greater period would elapse before the gates started to lower.
A driver in Mr Van Dam's position would accordingly have at least six seconds notice prior to the boom gates beginning to lower. If Mr Van Dam was driving at 70 km per hour (19.44 m/s) his vehicle would cover a distance of approximately 116 m in six seconds. The relevant section of Albany Highway is straight. There is no reason for me to conclude that Mr Van Dam suddenly encountered the flashing lights, for example halfway through the six second cycle.
Mr Van Dam testified that whilst he was driving over the railway, the boom gates had started moving. Whilst still on the north side of the crossing, he saw Ms Amin's car begin to come out across Albany Highway to get to the median strip. He immediately applied his brakes, his wheels locked and he collided with the rear driver's side of Ms Amin's vehicle.
Mr Van Dam completed an online crash report on 30 July 2016 and under the heading 'crash description' he stated:
Driving on the left lane southbound on Albany Highway between 60‑70 kmh-approaching the Armadale railway crossing as red lights began to flash, could not stop in time safely- speedup to cross (as far as I am aware, I was within the speed limit) - (Ms Amin) was at a stop sign, who was at the junction of the Crescent and Albany Highway, assumed I would stop like the other cars and didn't give way to the right began to cross slowly‑ I couldn't (as it should read) slow down fast enough and hit the rear of her car.
Mr Van Dam stated that this was an accurate description of the accident as he remembered it.
Mr Van Dam stated in cross‑examination that Ms Amin's vehicle stopped in the middle of the road just prior to impact. He stated, 'I'm not sure why. Maybe because she freaked out at the time but, yes, she stopped in front of me.'
I prefer Ms Amin's evidence that the first she knew of an oncoming vehicle was when there was a collision. She described that episode quite vividly. The account that she in effect 'froze', having emerged into Albany Highway is not consistent with the brief description given by Mr Van Dam in the online crash report. He refers to her vehicle crossing slowly and makes no reference to it coming to a halt. It was not put to Ms Amin in cross‑examination that she stopped in this way.
Conversation after accident
Ms Amin testified that following the collision, she spoke with Mr Van Dam and challenged him about the manner of his driving. According to Ms Amin, Mr Van Dam stated,
I went through the red lights. I didn't think you were going to go. I was trying to get through, I was just trying to beat the train.
On this point, Mr Van Dam testified that he remembered saying,
I'm sorry, I understand why you would have thought that, coming out … I don't understand why you didn't continue driving to the median strip where the cars could have waited because there was room.
I prefer the evidence of Ms Amin on this point. There is no doubt that Mr Van Dam did go through the red lights. Ms Amin's reporting of him saying, 'I didn't think you were going to go' is consistent with a person, immediately after a crash, acknowledging their culpability to an extent, but also seeking to excuse it by stating that he did not think that the other vehicle would have come out into his path.
Mr Van Dam's account of the conversation, to my mind, had more of the flavour of a retrospective creation of a discussion, where the scenario articulated by Mr Van Dam in evidence, but not in the online crash report, is contemporaneously established.
I am satisfied that Mr Van Dam did tell Ms Amin that he was trying to beat the train.
Conclusions on manner of the defendant's driving
I am quite satisfied that Mr Van Dam had ample opportunity to safely stop but chose not to do so. I find that he drove through a railway crossing when the lights were flashing at a speed of 70 to 75 km per hour. The boom gates were actually descending when he crossed the railway line. According to the agreed facts once the booms fully descended the oncoming train would have been about 10 seconds away.
There is no doubt in my mind that Mr Van Dam's sole focus at that time would have been to get across the railway line before the boom gate descended. By the time that he had the opportunity to assess conditions on the other side of the descending boom gate, and to note the presence of Ms Amin's car, it was too late to brake in time. Having negotiated the hazard of the descending boom gate, Mr Van Dam was unable to avoid the next hazard which was a vehicle pulling out into his path.
The applicable principles
Section 5B of the Civil Liability Act2002 (WA) is relevant and provides as follows:
5B.General principles
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless —
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) —
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
I apply the test that Mason J set out in The Council of The Shire of Wyong v Shirt (1980) 146 CLR 40, 47 (Stephen, Aickin & Murphy JJ agreeing). I am satisfied that a reasonable person in Mr Van Dam's position would have foreseen that his conduct involved a risk of injury to Ms Amin or to a class of persons including Ms Amin. Given the magnitude of the risk and the degree of the probability of its occurrence, a reasonable person in Mr Van Dam's position would not have driven through the railway crossing in these circumstances. He/she would have stopped as the other two cars did.
The risk of the sort of collision that in fact occurred was not far‑fetched or fanciful. It was real and therefore foreseeable.
The reasonable care that a driver in the position of Mr Van Dam 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 he/she may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events: Manley v Alexander (2005) 223 ALJR 228 [12].
The High Court reaffirmed the Mason J test in Shirt in State of New South Wales v Fahy (2007) 232 CLR 486 [7], [78], [129] ‑ [133] and [241], whilst stressing the need not to lose sight of the ultimate criterion of reasonableness, or to adopt a mechanistic approach to questions of reasonable foreseeability, risk management or risk avoidance: see also The Quadriplegic Centre Board of Management v McMurtrie [2009] WASCA 173 [80] (Buss JA).
Conclusion on negligence of the defendant
I find that Mr Van Dam drove his vehicle negligently.
Contributory negligence of the plaintiff
As I have already noted Mr Clyne, for Ms Amin, concedes that she was also in breach of her duty of care, in not giving way to a vehicle from her right. As the High Court has put it, Ms Amin contributed to her own loss and damage by failing to take reasonable care of her own person. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of the many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property: Astley v Austrust Limited [1999] HCA 6; (1999) 197 CLR 1 [30] (Gleeson CJ, McHugh, Gummow & Hayne JJ).
The power to reduce an award of damages on the ground of contributory negligence is found in Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) (CNTC Act) s 4(1). The award may be reduced 'to such extent as the court thinks just in accordance with the degree of negligence attributable to the plaintiff'. The onus of establishing contributory negligence is on Mr Van Dam: Town of Port Hedland v Reece William Hodder by next friend Elaine Georgina Hodder (No 2) [2012] WASCA 212; (2012) 43 WAR 383 [294] (McLure P).
Section 5K of the Civil Liability Act provides:
Division 5 — Contributory negligence
5K.Standard of contributory negligence
1.The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2)For that purpose —
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time.
As McLure P noted in the Town of Port Hedland v Hodder at [295] the statutory standard of care is by reference to 'a reasonable person in the position of that person'. It repeats the common law formulation. An expression to the same effect appears in s 5B.
The statutory expression 'a reasonable person in the position of that person' in s 5K, and its equivalent in s 5B, is intended to pick up the Wyong v Shirt concept central to the common law standard of care in both negligence and contributory negligence: Town ofPort Hedland [297].
As I have observed there is no contest, so far as the plaintiff is concerned, that Ms Amin was contributorily negligent in coming out into Albany Highway as she did and I so find.
Apportionment of liability
I am required to consider the relative importance of the conduct of each party in causing the loss and damage. I must subject the whole conduct of each of Ms Amin and Mr Van Dam, as negligent parties in relation to the circumstances of this accident to comparative examination. Any finding I make on a question of apportionment is a finding upon proportion, of balance and relative emphasis, and of weighing different considerations. It requires the exercise of an individual choice or discretion: O'Connor v Insurance Commission of Western Australia [2016] WASCA 95 [61] ‑ [62] (Buss JA).
A finding on a question of apportionment is a finding upon a, 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v Macgregor (Owners) (1943) AC 197, 201 cited in Podrebersek v Australian Iron & Steel Pty Ltd[1985] HCA 34; (1985) 59 ALR 529 (judgment of the court).
In making an apportionment I must compare the degree of departure, by Ms Amin and by Mr Van Dam, from the standard of care of the reasonable person and of the relative importance of the acts of the parties in causing the accident. I must consider the whole conduct of each party: Podrebersek (533).
I find that the degree of departure by Mr Van Dam from the standard of care of the reasonable person was significantly greater than that of Ms Amin. There was some justification for Ms Amin's breach of her duty of care. It was reasonable for her to assume that other road users were complying with the warning signs I have described in respect of the railway crossing. Her culpability lies in failing to take that final look to her right before she emerged into the Albany Highway. There was no justification for Mr Van Dam's breach of his duty of care.
I consider that it is just to reduce the amount of damage that Ms Amin may claim by the amount of 25% to reflect the degree of negligence attributable to her.
Conclusion
Ms Amin succeeds on her claim, but damages are to be reduced by 25% on account of her contributory negligence. I will hear from the parties as to any further orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MW
ASSOCIATE TO JUDGE TROY19 OCTOBER 2018
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