Baker v North
[2017] WADC 64
•24 MAY 2017
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BAKER -v- NORTH [2017] WADC 64
CORAM: STAUDE DCJ
HEARD: 1 MAY 2017
DELIVERED : 24 MAY 2017
FILE NO/S: CIV 2678 of 2015
BETWEEN: JOHN WAYNE BAKER
Plaintiff
AND
JENNIFER PATRICIA NORTH
Defendant
Catchwords:
Torts - Motor vehicle crash - Liability only - Turns own facts
Legislation:
Nil
Result:
Judgment for the plaintiff
Liability apportioned 70/30 in favour of the defendant
Representation:
Counsel:
Plaintiff: Mr E J Myers
Defendant: Mr C Rimmer
Solicitors:
Plaintiff: Peninsula Law Practice
Defendant: Sparke Helmore
Case(s) referred to in judgment(s):
Braund v Henning [1988] HCA 36; (1988) 7 MVR 97; (1988) 79 ALR 417
March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Thurgar v Gollschewski [2002] QCA 330
Vines v Deegan (1995) 21 MVR 113
STAUDE DCJ:
Introduction
On 11 October 2012 at about 8.30 am the plaintiff was riding his motorcycle east on Donald Drive, Safety Bay, some distance behind a Mitsubishi 380 sedan driven by the defendant. As the defendant approached the intersection of Ernest Street (a T-junction at which Ernest Street terminates), she indicated to turn right. Moments later, for reasons that are in dispute, the plaintiff lost control of his motorcycle and was thrown onto the side of the road.
The plaintiff, who claims damages for injuries thereby sustained, alleges that the incident was caused by the negligent driving of the defendant. The trial was of the issue of liability.
The plaintiff gave evidence and called an eyewitness, Mr Antonino Carello. The defendant also gave evidence and called a forensic engineer, Mr Daniel Simms, who gave evidence limited to measurements made of the site of the incident. A map of the area and various photographs were also tendered.
It was an unusual feature of the case that counsel for the plaintiff did not urge an acceptance of the plaintiff's account of the incident, but relied in his closing submissions upon the account given by Mr Carello. Indeed, the plaintiff's account of the incident was not even put to the defendant whose evidence was broadly consistent with that of Mr Carello.
It is the plaintiff's ultimate contention, based upon an acceptance of the evidence of Mr Carello, who was approaching in the opposite direction on Donald Drive, that the defendant, in the course of giving way to Mr Carello's vehicle, veered left causing the plaintiff, who was about to overtake the defendant's vehicle on that side, to take evasive action which resulted in him losing control of the motorcycle.
The negligence alleged against the defendant is particularised as follows in the amended statement of claim:
The Defendant was negligent in that she:
i.failed to keep any or any proper lookout;
ii.failed to steer or control her motor vehicle to avoid travelling into the path of travel of the Plaintiff;
iii.failed to apply the brakes in time, or at all, to avoid travelling into the path of the Plaintiff;
iv.moved her vehicle to the left and into the path of the Plaintiff's motorcycle without giving any warning or indication that she intended to do so;
v.drove at a speed which was excessive in all the circumstances; and
vi.drove the motor vehicle without due care and attention.
The defendant denies these allegations and says that the incident was caused wholly or in part by the plaintiff's own negligence, particularised as follows:
The Plaintiff was negligent in that:
a.he failed to keep any or any proper lookout;
b.he travelled too closely to the rear of the Defendant's motor vehicle;
c.he failed to leave sufficient distance between his motor vehicle and the Defendant's motor vehicle to stop;
d.he failed to give way to the Defendant;
e.he drove at a speed which was excessive in the circumstances; and
f.he failed to take reasonable care for his own safety.
Evidence of the plaintiff
The plaintiff had 35 years' experience of riding motorcycles. He had acquired the Harley‑Davidson motorcycle he was riding in 2008. It measured 680 mm wide and 1,820 mm long.
The plaintiff's evidence of the incident was quite at odds with the scenario submitted by his counsel. He said that having left his home in Crawford Court, he was proceeding along Donald Drive towards Waikiki Road intending to ride to Pinjarra. As he approached 73 Donald Drive he observed the defendant reverse her vehicle from her driveway. He said that he had to stop his motorcycle to enable her to do so. He then observed the defendant's vehicle to travel at 40 – 50 km per hour along Donald Drive. The defendant 'cut the corner' at a right‑hand bend in the road. As her vehicle approached the intersection of Ernest Street, the defendant indicated to turn right. To that point he had been following her vehicle for a distance of 280 – 300 m at a speed of about 40 km per hour and at a distance of 1 1/2 m from the left-hand kerb.
The plaintiff's evidence was that the defendant's vehicle actually turned right into Ernest Street before doing a U-turn to the left coming back across the intersection of Donald Drive and onto the left-hand footpath. The defendant's manoeuvre caused him to veer left and to apply his brakes. His motorcycle skidded. The rear wheel hit the kerb causing him to lose control of the motorcycle whereupon he was thrown over the handlebars landing on the footpath and rolling onto the grass verge near a brick wall opposite the intersection.
The plaintiff said that immediately after this incident the defendant approached him and apologised, saying that it was her fault. He then observed her to make a telephone call. He said that after making the call she 'tried to take back what she said', saying that she did not think it was her fault.
The plaintiff recognised Mr Carello, who stopped to render assistance, as a former neighbour. He said he suffered a dislocation of his left shoulder.
In cross-examination the plaintiff firmly maintained his account of the incident, saying that the defendant made a right-hand turn without slowing and having turned into Ernest Street then made a U-turn back towards and across Donald Drive. He disagreed with the proposition that she could not have made that manoeuvre at 40 km per hour. He accepted that her vehicle would have travelled a distance in the order of 36 m in order to do so. He agreed that at 40 km per hour he would have been travelling at about 11 m per second. He disagreed with the proposition that if the defendant had actually turned right as he described he would have passed through the intersection before she completed the manoeuvre he described.
He denied that he was not paying attention. He said he saw the movement of the defendant's vehicle and took evasive action to avoid it. He said he would have had 'plenty of time to go around the footpath' if she had not driven onto it. The plaintiff denied that the defendant's vehicle was ever stationary before turning right.
The plaintiff said that prior to the incident he observed a vehicle, a purple car, approaching from the intersection of Waikiki Road and Donald Drive, a distance of about 40 - 50 m. He said that the defendant had 'plenty of time to go'. He rejected the proposition that the defendant's vehicle at no time crossed onto the right side of Donald Drive. He rejected too the proposition that the defendant's vehicle moved slightly to the left as the defendant was waiting to turn right onto Ernest Street. He also rejected the proposition that he and the motorcycle came to rest behind the defendant's vehicle and that there was no attempt made to overtake that vehicle on the left.
It was put to the plaintiff that he had assumed that the defendant's vehicle would proceed to turn right and that he did not anticipate that she might give way to the oncoming vehicle. He rejected the suggestion that he was travelling too close to the vehicle to safely avoid it when it stopped.
He admitted that he had been in a state of shock afterwards. He did not remember the defendant helping to pick up his motorcycle.
In re-examination, the plaintiff said that if the defendant's vehicle had stopped to the left of the centre of the road he would have been able to pass it safely. It was clear from his cross-examination that his evidence was not inconsistent with his previous statements to the police and his vehicle insurer.
Evidence of Antonino Carello
Mr Carello gave evidence that he turned into Donald Drive from Waikiki Road. After he turned he noticed a Mitsubishi motor vehicle indicating a right‑hand turn into Ernest Street. It was in the centre of the intersection. He could see a motorcycle behind it. The Mitsubishi was coming to a stop. He thought both vehicles were travelling between 20 ‑ 30 km per hour, the motorcycle about 15 ‑ 20 m behind the Mitsubishi, about 2 m from the kerb. His evidence of the incident itself was as follows:
Now, what did you notice then, can you please tell us? What did you see? – Well, I seen the Mitsubishi with the indicators going and then I picked up the bike behind it. And again I said to myself, 'I think she's got enough time to go round', but I just kept going. And then the next thing, the bike's behind and as I almost draw level with the Mitsubishi, I noticed he had to go – I don't know whether it's left or – he sort of – well, he couldn't pull up in time and just went over.
All right. But just – just – the Mitsubishi, which way did it go when – asthe bicycle approached it? – Well, just probably half a metre to the left as it – as it's pulling up with the indicator still going.
Right, and what did you see then? – Then the bike coming up behind it and when he applied the brakes, he just come around a little bit and he went over.
...
What was the position of the Mitsubishi in the intersection when you saw the bike go over? – It was probably about a metre and a half, a bit over a – about a metre and a half from the kerb with the indicator going, yeah.
It was Mr Carello's evidence that the Mitsubishi had moved about half a metre to the left before he saw the motorcycle go over. He parked his vehicle and went to the assistance of the plaintiff whom he recognised after the plaintiff greeted him by name. He said he helped the plaintiff to pick up the motorcycle. He had no dealings with the defendant.
In cross-examination Mr Carello agreed that at no time did the defendant's vehicle turn right into Ernest Street in front of him. He said it indicated to do so, but did not. He did not think that the defendant's vehicle crossed the centre of Donald Drive.
Evidence of the defendant
The defendant lived at 73 Donald Drive. On the morning of the incident she was driving to a petrol station on Safety Bay Road. She reversed from her drive and proceeded towards the intersection of Ernest Street where she intended to turn right. She drove along Donald Drive at 35 – 40 km per hour. When she indicated to turn right she thought she was travelling at 25 – 30 km per hour.
As she approached the intersection she noticed a vehicle approaching in the opposite direction from the intersection of Waikiki Road. She then turned her steering wheel about a quarter of a turn in order to 'straighten up' her vehicle which was on an arc. Then, she said:
So I was stationary and then I heard a screech and I looked in my rear vision mirror and I saw a guy on a motorbike. The motorbike handlebars were criss-crossing. With that the motorbike went to the right and the rider, through my rear vision mirror I could see him go up into the air.
She pulled over to the left verge of Donald Drive and went to the plaintiff's assistance. She asked him if he wanted an ambulance or if he wanted her to take him to hospital. He said no. She helped him to take his Kevlar jacket off at his request. She exchanged details with the plaintiff. She did not make a telephone call to anyone at the scene as she did not have her phone with her. She said the plaintiff asked her to help pick up his motorcycle. He then got on the motorcycle and rode off.
The defendant said in her evidence that when she reversed from her driveway she did not see the plaintiff's motorcycle. She said that she looked in her rear view mirror before indicating to turn right. When she was cross‑examined, it was put to her that in neither her police crash report form, nor in her police statement, did she say that she had looked in her rear vision mirror. She said that she would have done so as she always did before indicating, but eventually conceded that she may not have done so as she did not see the plaintiff's motorcycle behind her before hearing a screech of brakes.
She was sure, however, there was no vehicle behind her when she reversed onto Donald Drive. She said also that her rear view was obstructed by the right-hand and left-hand bends in Donald Drive. She denied 'cutting the corner' as she drove towards the intersection of Ernest Street. When she was stationary about to turn right, her vehicle was probably about half a metre from the centre of the road. She agreed that the vehicle moved forward slightly when she straightened her wheels, but denied that her vehicle moved to the left. She thought that the left‑hand side of her vehicle was 1 – 2 m from the left kerb of Donald Drive.
The defendant's evidence was that she and Mr Carello assisted the plaintiff to pick up the motorcycle. She maintained that she did not have a mobile phone with her at the time. She did not say at any time to the plaintiff that the crash was her fault. As I have observed, the plaintiff's account of the incident was not put to the defendant by way of contradiction of her evidence.
Evidence of Daniel Simms
Mr Simms is a mechanical engineer. He gave no opinion evidence. An extract of his report dated 12 August 2016 was tendered. It comprised pages 4 and 5 which contain two aerial photographs and two street level photographs, the table of stopping distances on page 9 and an aerial photograph annotated with the distances measured by Mr Simms. Mr Simms obtained the dimensions of the vehicles from publicly available vehicle classifications. The defendant's Mitsubishi sedan was 1,866 mm wide and about 5 m long. Donald Drive was measured to be 7.4 – 7.5 m in width. Mr Simms found that the intersection was clearly visible for a distance of in excess of 170 m along Donald Drive.
There was no evidence of crash reconstruction as such. Although Mr Simms gave evidence as to the minimum deceleration rates required by the Australian Design Rules for Motorcycles, which provide that they must be able to decelerate at minimum rates (metre per second), there was no expert evidence as to the speed of the plaintiff's motorcycle prior to the application of brakes.
Principles
There was no issue as to the applicable principles that apply in cases of this kind. They were conveniently stated by the Court of Appeal of the Supreme Court of Queensland in Vines v Deegan (1995) 21 MVR 113 by Macrossan CJ [117]:
The fundamental duty of every driver of a vehicle is to drive at a safe speed and to keep a proper lookout. In the case of a following vehicle the duty is to travel at such a speed and at such a distance behind the vehicle ahead as in the circumstances to enable the driver of that following vehicle to pull up or take other evasive action in the case of an emergency. As recently as 1988 the duty of doing so was recognised by the High Court in Braund v Henning (1988) 7 MVR 97; 79 ALR 417. While emphasising the limited value of earlier decisions in the circumstances of particular cases, their Honours accepted that:
'The driver of a following vehicle which collides with the vehicle which is ahead of it is usually held primarily liable for the consequences of the collision.'
Nevertheless, the circumstances of a particular case may justify a different result. In Braund v Henning [1988] HCA 36; (1988) 7 MVR 97; (1988) 79 ALR 417, a motorcyclist who collided with the rear of a vehicle turning right, the driver of which had failed to give adequate warning of his intention to do so, recovered 60% of his damages.
In Thurgar v Gollschewski [2002] QCA 330, Jerrard JA (Davies JA & McKenzie J), after making reference to Braund v Henning, stated [9]:
That case provides an illustrative example of the heavy responsibility placed on the driver of an overtaking vehicle, who is usually held primarily liable for the consequences of collision between that vehicle and the one being overtaken. That responsibility was described many years ago ... by Johnston J of the New Zealand Supreme Court in Twiehaus v Morrison& Anor (1947) NZLR 197 at 202 in these terms:
'The duty of an overtaking car is to watch carefully the leading car. If the onus lies on one more than the other, the overtaking car has to show that the leading car is responsible for the collision ... The driver of the leading vehicle may not know of the presence of the following vehicle and the driver of the latter cannot assume, as the other may, that [the latter driver] is under observation.'
In March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, the High Court approved an apportionment of liability in circumstances where the plaintiff was injured when he drove a motor vehicle into the rear of an unlit truck at night. That case, of course, has become the locus classicus of the law of causation. As Deane J observed:
It is true that, in the context of apportionment legislation which gives the latitude necessary to enable the relief to be fairly adjusted to fit the circumstances, the courts will be unlikely to deny causation in any case where the fault of a defendant contributed to an accident. Nevertheless, the question of whether conduct is a 'cause' of injury remains to be determined by a value judgment involving ordinary notions of language and common sense.
In the event that both parties are found to have causally contributed to the incident in question, the principle to be applied in apportioning liability in this case is that stated by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 [10]:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves comparison both of culpability, i.e., of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16), and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd (1953) AC 663 at 682; Smith v McIntyre (1958) Tas SR 36 at 42 – 49 and Broadhurst v Millman (1976) VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.
Discussion
In closing submissions, the plaintiff's counsel contended on the basis of Mr Carello's evidence that the defendant, after indicating her intention to turn right, moved her vehicle to the left, without warning to the plaintiff, causing the plaintiff to apprehend a risk of collision if he overtook the defendant's vehicle on that side. In the agony of the moment, the plaintiff applied his brakes forcefully, but was unable to control his motorcycle so as to bring it to a stop, or to otherwise manoeuvre the motorcycle so as to avoid a potential collision in the event that the defendant's vehicle continued to move to the left.
Counsel conceded that the evidence of the plaintiff was unreliable, but submitted it was not given dishonestly, suggesting that the inference to be drawn from 'the fact that he gave evidence the way he did, knowing the way the case was going to be run and the defence, is that he actually believes that's what happened'. Counsel for the defence, on the other hand, argued that the plaintiff's evidence was so inherently improbable that it could not be explained by any psychological reason and could be only viewed as a detailed and deliberate fabrication. In this regard, I note that the statement of claim describes the incident occurring as the plaintiff said, the defendant making a right-hand turn into Ernest Street and then turning back onto Donald Drive.
If, as counsel for the plaintiff contends, he gave obviously incorrect evidence in the knowledge that his case was to be put on another basis, one would expect that he would have been open to the suggestion that the incident did not occur as he said. Yet he remained adamant, and was at times argumentative in his responses. There is no suggestion of head injury or cognitive impairment, or any other cause for the plaintiff having a mistaken memory. Whilst an explanation can, I believe, be reasonably inferred, it would not be appropriate to make any findings adverse to the plaintiff when he was not squarely challenged on the basis that his evidence was deliberately false, or cross-examined as to any motive he may have had to give false evidence, and where he has conceded through counsel that his evidence should not be preferred to that of Mr Carello.
The plaintiff's evidence of the movement of the defendant's vehicle is so unsatisfactory that it does taint his entire account of the lead up to and the aftermath of the incident. Where his evidence conflicts with the defendant's and Mr Carello's, I reject it. Accordingly, I do not accept that he stopped when the defendant reversed from her driveway, that the defendant cut the right-hand bend in Donald Drive or that the defendant manoeuvred her vehicle in the extraordinary way described by the plaintiff. I do not accept that the defendant made any apology or admission of fault, or that she made any telephone call.
I accept entirely the evidence of the defendant, which was not given in aid of any personal interest and was clearly frank and cogent. It accorded substantially with the independent evidence of Mr Carello. There are, however, two adverse findings that can be made upon acceptance of evidence.
The first is that she was not aware of the presence of the plaintiff's motorcycle behind her until she heard the screech of the braking. On this basis it can be found, as she in fact admitted, that she did not check her rear vision mirror as she said she normally did before indicating an intention to turn right.
The second is that from a position left of the centre of the road, when her vehicle was stationary or moving very slowly, the defendant straightened the vehicle by turning the steering wheel to the left, an action perceived by Mr Carello as a slight movement of the vehicle to the left, which he estimated at half a metre. This observation is entirely consistent with the defendant's vehicle moving forward slightly after she turned the steering wheel. As the vehicle had been 'on an arc', the effect of this action was that the front of the vehicle, not the vehicle as a whole, moved slightly away from the centre of the road, to the left. This was the half‑metre of movement observed by Mr Carello.
Why the defendant corrected her steering in this way is not clear as on her account, and that of Mr Carello, her vehicle was on the correct side of the road. Nevertheless, it seems clear that in the course of giving way to Mr Carello's vehicle the defendant saw fit to alter the position of her vehicle in relation to the intersection.
That being the likely scenario, the next question is what inference can be drawn as to the cause or causes of the plaintiff's loss of control of his motorcycle.
His position, as put by counsel, is that he expected to be able to safely overtake the defendant's vehicle on the left and was about to do so when her vehicle unexpectedly moved in that direction causing him to brake with such force as to go into a skid and lose control of his motorcycle.
Incidentally, I note that reg 122(3) of the Road Traffic Code 2000 provides:
A driver overtaking a vehicle making, or apparently about to make, a right turn or U-turn in the middle of the carriageway and giving a right change of direction signal, shall pass to the left of it and if any vehicle that may be stationary behind it, but only if it is safe to do so.
The inference for which the defence contends is that the plaintiff simply assumed that the defendant would turn into Ernest Street ahead of Mr Carello's vehicle, and that when she did not he was unable to control his motorcycle to stop behind her vehicle or pass it safely. In the defendant's submission, neither the failure of the defendant to observe the presence of the plaintiff on the road behind her, nor the slight movement of her vehicle to the left, was causative of the plaintiff's crash.
The onus, of course, is on the plaintiff to prove negligence.
Findings
The defendant, on the basis of her admission that she did not check her rear view mirror before indicating to make a right-hand turn, and did not see the plaintiff before she heard the screech of his braking, breached the standard required of a reasonable driver in the circumstances. Even though her attention was primarily directed to the road ahead of her and to the approach of Mr Carello's vehicle to which she had to give way, she failed to keep a proper lookout.
On the evidence, I have found that the front of the defendant's vehicle moved about half a metre from the centre of the road to the left in line with the rear of the vehicle. It did not have the effect of reducing the distance available to the plaintiff to overtake. The width of Donald Drive was about 7.5 m and, accordingly, the centre of the road was about 3.75 m from the left-hand kerb. If the defendant's vehicle is taken to be approximately 2 m wide, and to have been half a metre from the centre, the distance available to the plaintiff to overtake was about 1.25 m, almost twice the width of his motorcycle.
Had she kept a proper lookout, the defendant would have seen the motorcycle behind her and anticipated the likelihood of it overtaking her turning vehicle. In those circumstances, to alter the direction of her vehicle without warning could create an apprehension on the part of the other driver that she intended not to turn, but to continue.
On this basis, I am satisfied that the defendant's failure to keep a proper lookout materially contributed to the plaintiff's loss of control of his motorcycle.
I am also satisfied that the plaintiff contributed to his injuries by failing to take reasonable care for his own safety. He bore a higher burden of responsibility as the following driver, as the authorities show.
In this case, on the evidence of each of the witnesses, the defendant gave adequate indication of her intention to turn right and moved appropriately to the centre of Donald Drive in order to do so. She had, I find, brought her vehicle to a virtual, if not, complete stop. Her vehicle was in full view of the plaintiff. The vehicle driven by Mr Carello was also in his view. At the point where he lost control of his vehicle, the plaintiff was not overtaking the defendant's vehicle. It is clear from his evidence of where he and the motorcycle came to rest (by reference to exhibit 6) and the evidence of both Mr Carello and the defendant, that the plaintiff began to lose control of his motorcycle as he approached the defendant's vehicle. He had not commenced to overtake at that point.
It is likely, however, that he intended to do so as the defendant made her turn. So, whilst the plaintiff had, in a technical sense, sufficient room to be able to overtake on the left of the defendant's vehicle, his expectation was that her vehicle would be through the intersection before he reached it. He was, I infer, inattentive to the defendant's vehicle and careless in continuing at a speed which did not allow him to stop or safely control his vehicle in the event that the defendant did not proceed, or changed the direction of her vehicle. When, unexpectedly, the defendant gave way to Mr Carello's vehicle and steered her her vehicle to the left, he was going too fast to respond appropriately. He panicked. In the agony of the moment he braked hard and veered left to avoid a rear‑end collision. Had he been keeping a proper lookout and travelling at an appropriate speed in the circumstances he would have been able to stop safely or go around the defendant's vehicle, on the footpath if necessary (the kerb being trafficable, as he admitted).
The plaintiff's contributory negligence is conspicuous. Compared with the manner of driving of the defendant, the plaintiff's manner of driving involved a greater degree of culpability and made a greater contribution to the damage caused. It is clear, therefore, that the plaintiff should bear a high degree of responsibility for the consequences of his loss of control of his motorcycle.
On the basis of the findings that I have made in respect of the manner of driving of each party, I consider that liability should be apportioned 70/30 against the plaintiff.
Accordingly, I find that the plaintiff is entitled to judgment against the defendant for 30% of his damages to be assessed.
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