Arnott v Motor Accidents Insurance Board

[1987] TASSC 105

Serial No B35/1987
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Arnott v Motor Accidents Insurance Board [1987] TASSC 105; B35/1987

PARTIES:  ARNOTT, Joy Wanda as best friend of
  ARNOTT, Dale Scott
  v
  MOTOR ACCIDENTS INSURANCE BOARD

FILE NO/S:  468/198
DELIVERED ON:  7 August 1987
JUDGMENT OF:  Underwood J

Judgment Number:  B35/1987
Number of paragraphs:  13

Serial No B35/1987
List "B"
File No 468/198

JOY WANDA ARNOTT as best friend of DALE SCOTT ARNOTT
v MOTOR ACCIDENTS INSURANCE BOARD

REASONS FOR JUDGMENT  UNDERWOOD 7 August 1987J

1. This is a claim for damages for negligent driving brought against the Motor Accidents Insurance Board as provided by the Motor Accidents (Liability & Compensation) Act 1973, s16.

1. After school, on the 19 December 1983, the infant plaintiff, then aged 14, was injured when he was thrown off a BMX bicycle. Nicholas Shaeffer, one of the plaintiff's school friends, was the owner of this cycle. At the time of the accident, both the plaintiff and Shaeffer were riding on the cycle. It was fitted with a saddle about two and a half feet in length. The plaintiff was sitting on the front of the saddle and operating the pedals. Nicholas Shaeffer was sitting on the saddle behind the plaintiff, presumably holding his legs out to avoid contact with the pedals and rear wheel. This mode of carriage was described in the evidence as "double dinking".

1. The accident occurred in Myella Drive, Chigwell just to the west of where the railway lines cross the street. Leading in a general westerly direction from Main Road Claremont to the railway lines is a short, straight stretch of street called Mentmore Street. After crossing the railway lines, Mentmore Street becomes Myella Drive. Just to the west of the railway line, Myella Drive curves very slightly towards the north, then straightens and continues in a general westerly direction. Maroni Road forms a junction with Myella Drive on the western side of the railway tracks just about on the point of the slight northerly curve. On the south western corner of this junction is a butcher's shop, the proprietor of which was, and is, Mr Escourt.

1. According to the plaintiff's evidence given from the witness box, he and Nicholas Shaeffer rode down Maroni Road towards its junction with Myella Drive. The plaintiff said he turned left at the junction and stopped just around the corner in Myella Drive where he and Nicholas Shaeffer spoke to some friends of Shaeffer, who were sitting in a parked car. After about 10 or 15 minutes, the car drove off up Myella Drive and the plaintiff said that he, with Shaeffer on the saddle behind him, did a "U" turn and cycled down Myella Drive towards the railway lines. It was his intention to cross the railway lines and proceed straight down Mentmore Street to the main road. The plaintiff described, with the use of photographs, that he was about to negotiate the very slight curve in Myella Drive,when he observed a brown Mazda Capella sedan approaching in the opposite direction. He said that he was then about half a metre out from the kerb on his correct side and the approaching car was also on its correct side travelling at a "normal speed". The car was then still in Mentmore Street and had not crossed over the railway tracks. The plaintiff said that just before the car started to cross the railway tracks, it moved onto its incorrect side. The plaintiff said that by this time, he was about level with the flashing red warning lamps which guard the railway crossing. The plaintiff said that as the car came towards him on its incorrect side, he slammed on the brakes and the cycle skidded to its left and hit the kerb. By this time, the oncoming car was almost completely on its incorrect side and very close to the cycle. The force of the impact catapulted both the plaintiff and his friend off the cycle. The plaintiff was thrown onto the railway tracks and, as was subsequently ascertained, ruptured his spleen.

1. The brown Mazda Capella motor vehicle stopped. The plaintiff said it stopped to the west of the point he was thrown from the cycle and then reversed down Myella Drive, still on its incorrect side, until it came to a stop just to the west of the railway lines. The driver got out and put both boys in his car. He took them to the Northgate Medical Centre near O'Briens Bridge at Glenorchy. There, he delivered them into the care of a Dr. Randall who treated them. The driver gave a short history to Dr. Randall which was recorded by him in the notes as "double dinking on a BMX. Brakes failed. Came off it on the train track."

1. The driver then left the clinic without giving his name to anyone and has not been seen or heard of since. The plaintiff adduced evidence, which it was argued, proved that the identity of the motor vehicle could not be established nor could the driver, after reasonable enquiry and search, be found.

1. After making careful allowance for the plaintiff's intellectual shortcomings and his limited ability to express himself, I have reached the conclusion that his memory of the relevant events is vague and unreliable. In a statutory declaration made by him in October 1984 he said:–

"On the 19th of December 1983 I was riding my BMX push bike at about 3.45pm on Maroni Road at the intersection of Myella Drive and Maroni Road. I crossed the intersection and began riding down Mentmore Road in a general westerly direction when a motor vehicle travelling in the opposite direction came straight towards me on the wrong side of the road. He was cutting the corner. There was nothing between me and his car. ....... I immediately swung my cycle to the left to avoid a collision. In doing so I fell head first over the steering bars to the ground."

1. That account, that he rode straight down Maroni Road and made a right hand turn into Myella Drive, is in complete conflict with his account given from the witness box, of turning left into Myella Drive and stopping for some 15 minutes to talk to Shaeffer's friends, before making a "U" turn to ride the short distance down Myella Drive to the place where he came off the cycle. If the plaintiff did turn right at Maroni Road into Myella Drive, the junction is so close to the railway tracks that he would hardly have had time to straighten up before he reached the point where the cycle hit the kerb. If he did make a right hand turn out of Maroni Road, his account of initially seeing the brown Mazda on its correct side in Mentmore Street and then moving to its incorrect side as it approached the railway tracks, cannot be accepted.

1. There were two other witnesses to the accident. One was called to give evidence by the plaintiff and the other was called by the defendant. The witness called by the plaintiff was another school friend of the plaintiff, Vaughan Rider. He had just got off the school bus and was walking towards Myella Drive from a bus turning circle almost opposite the junction of Maroni Road and Myella Drive. Mr Rider claimed to recall seeing the brown Mazda turn into Mentmore Street from Main Road, Claremont. He said that as it did this, it travelled partly onto its incorrect side and maintained that position as it came along Mentmore Street towards the railway tracks. He said he saw the plaintiff ride down Maroni Road and make a right hand turn into Myella Drive. He said the cycle did not "cut the corner", had almost straightened up on Myella Drive when it moved left to avoid the oncoming brown car which by then was well on its incorrect side. He said that the car stopped and the driver took the two boys away. The recollection of this witness was obviously very poor and little reliance can be placed upon it. Under cross–examination he said he was not certain whether the plaintiff turned right out of Maroni Road or came straight down Myella Drive but thought the former was the case. He was unable to recall where the brown car stopped after the plaintiff came off the cycle. The witness himself described his recollection as "all snowy" and the following extract from the cross–examination indicates the reliability of his evidence:–

"Q       Did you actually see Dale (plaintiff) come out of the street, (Maroni Road) is that what caused you to see him, the fact that he was proceeding in the opposite direction to you as you walked along this street that the bus had stopped in?......... I'm really unsure, you know. It's – this should have all been done when it's (sic) clearer."

1. The defendant called Mr Escourt, the butcher from the shop on the south western corner of the junction of Maroni Road and Myella Drive. His evidence was clear, concise and remained unaffected by a lengthy and probing cross–examination. He was first asked to recall the relevant events approximately nine months after the accident when interviewed by a solicitor acting for the defendant. I have no difficulty in accepting the evidence of this witness as being accurate. I reject the evidence of the plaintiff and Mr Rider where it is in conflict with the evidence of Mr Escourt.

1. Mr Escourt said that there were no customers in his shop at the time and he was standing looking out of the window. He saw the plaintiff "double dinking" his friend down Maroni Road towards its junction with Myella Drive. He said the two boys were travelling down the middle of the road at a fairly fast speed. He said the cycle did not stop at the intersection and turned right, "cutting the corner" as it did so. It appeared to him that the plaintiff was trying to straighten the cycle on completion of the right hand turn but failed to do so. He saw it hit the gutter and the two boys thrown off it. At that point he observed a brown sedan in Mentmore Street.

1. He said the car was stationary on its correct side of the road. It had stopped either just to the east of the railway lines or just on the railway lines. He said that at no time did this car cross over the railway lines and pass very close to the plaintiff's cycle on its incorrect side of the road. Mr Escourt left his shop and went down to the accident scene and spoke to the driver who was shaking and appeared upset. Learned counsel for the plaintiff submitted that the fact that the driver was upset led to the inference that he had caused the accident. I reject this submission. Upon the account given by Mr Escourt, the plaintiff had made a right hand turn out of a side street in front of, and not very far from the brown car. The witnessing of this and the subsequent accident could well have caused the driver to be physically shocked. Mr Escourt did not learn the identity of the driver nor did he obtain the registration number [i]of the car. He saw the driver put the two boys in his car and drive off.

1. Upon the account given by Mr Escourt, which I accept, there is no evidence that the unidentified driver of the brown Mazda sedan was negligent. Accordingly there will be judgment for the defendant.

tasInLaw edit: The word "number" does not appear in the paper version of the judgment.
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