Bobrige v The Nominal Defendant No. DCCIV-96-696 Judgment No. D3650

[1997] SADC 3650

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Hume

Hearing

15/07/97 to 16/07/97.

Catchwords

Damages agreed between the parties - determination of the question of liability only. Defendant's vehicle turned across the path of the plaintiff - liability apportioned as to 2/3rd against the defendant and 1/3rd against the plaintiff; 48 year old female ; No permanent disability; Total assessment $34,784.10 reduced due to contributory negligence by 33.3% to $23,189.40.

Representation

Plaintiff CHRISTINA JOHANA BOBRIGE:
Counsel: MR R HARMS - Solicitors: TINDALL GASK

Defendant THE NOMINAL DEFENDANT:
Counsel: MR T PHELPS - Solicitors: PIPER ALDERMAN

DCCIV-96-696

Judgment No. D3650

31 July 1997

(Civil)

BOBRIGEVNOMINAL DEFENDANT

Civil

Judge Hume

This is an action for damages for personal injuries sustained by the plaintiff in an accident which occurred on the 11th June 1993.At the commencement of trial it was announced that the parties had agreed the quantum of the plaintiff's claim in the sum of $34,784.10 inclusive of interest. The matter came on for determination of the question of liability only.

The collision the subject of the action occurred between a red Ford Laser sedan owned and driven by the plaintiff and a Toyota sedan driven by James Walsh.That vehicle was owned by Mr. Walsh's defacto wife, Susan Marie Dawes. It bore the registration number (New South Wales) GKN-153.It is acknowledged upon the pleadings that the vehicle was not in fact registered in New South Wales or South Australia.It is acknowledged thatMr. Walsh was not licensed to drive a motor vehicle at the time the collision occurred.Upon the live issues, those matters are relevant in a peripheral way only to credit.I stress that the unlawful conduct of Mr. Walsh has no relevance in the present proceedings except in that it may be relevant to what is alleged to have been his reaction in conversation with the plaintiff following the collision, because he may have been concerned about the prospect of prosecutions against him for driving an unregistered and uninsured motor vehicle and driving without a licence.In the end, however, the subject of the "conversation" is of little weight.

The action is brought against the nominal defendant as a result of the fact that the vehicle driven by Mr. Walsh was not registered or insured.

By paragraph 8 of its defence the defendant makes the allegation that the plaintiffdid no give written notice of her claim to the defendant as soon as was reasonably practical after it became apparent to her that the motor vehicle driven by Mr. Walsh was unregistered and uninsured. Whilst Mr. Phelps for the defendant had no instructions to abandon that pleading it was not in fact pursued by him.It was quite apparent also, on the whole of the evidence, that in fact notice was given to the plaintiff soon as was reasonably practicable in the circumstances-some six weeks after the accident. I find against the defendant on that point and need deal with it no further.

The plaintiff alleges that the collision occurred as the result of the negligent driving of Mr. Walsh.Negligence is denied.The defendant claims the collision occurred as a result of the negligent driving of the plaintiff or in the alternative that she was negligent in her driving and as a result that she contributed to the collision.

I make the primary finding that the collision occurred between the two vehicles at the junction of Silkes Road and Reservoir Road at Paradise.There is conflict between the plaintiff and the defence witnesses as to precisely what time the collision occurred.The plaintiff gave evidence that it occurred at about 3.20p.m.Mr. Walsh and Miss Dawes gave evidencethat in their recollection the collision occurred at about 2.45p.m. or perhaps 2.50p.m.

Evidence was tendered by consent by way of reports of Mr. A.L. Mitton in a "Collision Analysis and Reconstruction Report" exhibit P1,which in effect reported as to the various measurements of the scene and photographs of the areas of roadway surrounding it and a supplementary report exhibit P2 which was prepared when it was discovered that the information givento Mr. Mitton by the plaintiff's solicitors, as to the direction in which the plaintiff's motor vehicle had been travelling at the time the collision occurred and as to where it occurred, was wrong.I think that was simply a mistakeon the part of the plaintiff's solicitors: and do not draw any inference adverse to the plaintiff's reliability because of it.I look to the whole of the material in the reports (but the photographs in exhibit P2 are of most use): to documentary evidence as given by way of plans prepared by Mr. Mitton , exhibits P3 and P4, which show in varying scales the particular areas of the roadways and junctions concerned;a police report exhibit P9, which is a report in computer format, which the plaintiff made to the police at Port Adelaide Police Station at 1705 hours on the 11th June 1993; and a certificate from a NSW Roads and Traffic Authority indicatingthat the vehicle owned by Ms. Dawes, a 1972 model Toyota Corona sedan which as at the 11th June 1993 was once registered in her name, but that the registration had expired on the 26th June 1992.The material and each of those documents was accepted without contest by the defendant.In addition I was supplied by consent with a copy of a road map of the general area, exhibit D10, which was map 108 in the UBD Street Directory depicting the general area relevant to the accident.

The oral evidence in the matter was called from the plaintiff Ms. Bobrige (who at the time of the collision was named Wallis), from Mr. Walsh and from Ms. Dawes.

At the conclusion of the case in evidence for the defendant I indicated to counsel that I had come to the tentative conclusion that none of the witnesses was deliberately attempting to mislead me and that I believedthat each of them was attempting to tell the truth to the best of their respective recollections.I come to that ultimate conclusion.

The primary difficulty in coming to the decision to which I must come,in this case is what I can glean as to the accuracy of those recollections.

It is useful at this stage to describe that the configuration of the roadways which are relevant to the matter.

It is accepted on the written material comprising the report and plan exhibits P1 and P2 that Silkes Road commences at its southern extremity at a junction with Gorge Road.At the point of the junction Gorge Road lies approximately in an East West direction .Silkes Road runs to all effective purposes in a direction to the North into the suburb of Paradise.

It is not contested that at the relevant time the plaintiff lived at Athelstone which is to the east and south of the area of the subject accident.She had travelled from her home at 4/26 Merrivale Road, Athelstone via Gorge Road, travelling in a roughly westerly direction, and turned north into Silkes Road.

It was her intention to go to meet her (then) fiance at a mutual friend's house at Mansfield Park.It was the intention that the plaintiff was to join with her fiance, and his friend to go to the Small Boat Club to prepare the boat for a yacht race on the following Saturday morning.The Small Boat Club is, I think I may take Judicial Notice, situated in the north arm of the Port River in the general vicinity of the Torrens Island Power Station, near Port Adelaide.

I give a broad description of the configuration of Silkes Road for purposes relevant to this action.

As I have said it runs roughly from its junction with Gorge Road.It has a bitumen surface and generally in width approximately 12.5 to 13 metres with the kerbing both sides.As one travels north on Gorge Road the first junction to the right is formed with Melinda Crescent.That is approximately 130 metres to the north of the Gorge Road intersection.Travelling north the next intersection is the intersection of Silkes Road and Waterbury Road which is a road forming a junction from the left of Silkes Road.That junction is approximately 265 metres to the north of Gorge Road, Silkes Road junction. The next junction is the junction of Silkes Road and Reservoir Road which is approximately 265 metres north of the Gorge Road Silkes Road junction. Reservoir Road joins Silkes Road at the eastern side of Silkes Road.It is unnecessary to be absolutely precise, but as is obvious as one travels north along Silkes Road the distance between the junction of Silkes Road and Waterbury Road on the left and Reservoir Road on the right is something in the order of 45 to 50 metres.

Silkes Road is an STA bus route.As I have said it is a bitumen surface with kerbing.There is no centre line marked.In practical terms there is room across the width of the road for parked vehicles to be placed on each kerbing alignment and for two vehicles to pass each other travelling in opposite directions.

As I have said there is some dispute on the evidence as to the precise time of the collision but it was approximately at 3p.m.I find that the road surface was dry although it had been raining earlier in the day.There was no rain at the time.The sky was overcast.

It is important to note that Reservoir Road, which runs as I have said to the East from Silkes Road and shortly forms a junction with a street called Harris Street, which runsin a northerly direction behind the Paradise Primary School, which faces on to Silkes Road.On Harris Street there is a car park behind the school where parents and in particular the driver of the vehicle owned by Ms. Dawes, Mr. Walsh, was accustomed to drop off and to pick up a young child who attended that school.I also make the finding, which is the subject of no contest, that Mr. Walsh and Ms. Dawes occupied a dwelling at the junction of Greenwillow Avenue and Waterbury Road.Greennwillow Road runs for all practical purposes parallel with Silkes Road.A distance of 50 or 60 metres separatesthe junction of Greenwillow Avenue and Waterbury Road and the junction of Waterbury Road and Silkes Road.

The plaintiff's recollection in outline was that she had travelled from her home into Gorge Road and travelled along Gorge Road in a westerly direction. She turned to the right into Silkes Road to travel north.As she completed that manoeuvre, she says she noticed a vehicle which she believed to be that driven by Mr. Walsh travelling slowly in a position close to the western kerbing alignment of Silkes Road in a northerly direction, in a position, according to her evidence in chief, approximately half way between junction of Melinda Crescent, which as I said intersected with Silkes Road from the right and Waterbury Road which intersected from the left.She said it was travelling slowly at a speed whichshe estimated was about 25 kilometres per hour.As she caught up to that vehicle she slowed her own to match its speed and took up a position to the rear but slightly to the right of it.She said that she observed that there was a man driving and a woman in the passenger seat front alongside him.They were in conversation.Her evidence in chief was that as the vehicle which she believed was that driven by Mr. Walsh passed through the junction of Waterbury Road the driver, obviously Mr. Walsh, bent his trunk and head to the left, and looked down.It was her evidence that at that time two cars were travelling along Silkes Road in a southerly direction and approaching the car driven by Mr. Walsh.She was three or four car lengths behind Mr. Walsh's vehicle.When the vehicles travelling south had passed she said that she indicated her intention to pass Mr. Walsh's car by putting on her right indicator and commenced that manoeuvre.As she did so she saw that Mr. Walsh's vehicle commenced a sharp turn from a position near the kerb to the right as if to enter Reservoir Road.She said that there was no indication from the indicator lights on Mr. Walsh's vehicle.She sounded her horn, braked and swerved to the right but a collision occurred.She said that the point of impact was towards the southern side of the area of the intersection that is in Silkes Road, roughly in line with the prolongation of the southern kerbing alignment of Reservoir Road and a little o the east of what might be termed an imaginary centre line in Silkes Road.She described in broad terms that the impact occurred between the left hand front corner of her motor vehicle and the right hand side of the vehicle driven by Mr. Walsh, towards the front of that vehicle .It was her evidence that at the time the collision occurred she was travelling at approximately 60 kilometres per hour and thatMr. Walsh's vehicle was travelling at approximately 50 kilometres per hour.It was her evidence that both vehicles stopped effectively at the point of impact:that she got from her vehicle that Mr. Walsh alighted from his.She said that Mr. Walsh abused her and she asked for his name several times and he refused to give it:that his female passenger briefly got out, but that there was no conversation between herself and the female:that Mr. Walsh said that he had to pick up is child from school, and climbed back into his car.When she asked him again for his name, he said "Jim Walsh" and drove off in a northerly direction along SilkesRoad. She wrote down the registered number "NSW GKN 153" and "Silkes Road" horizontally across a piece a paper, and when Mr. Walsh gave his name before driving away she wrote the name "Jim Walsh" vertically across the left hand edge of the piece of paper. The piece of paper was tendered as exhibit P8.

In outline her evidence was that she then proceeded to thenearby house of her son.Ultimately she told her fiance what had happened and subsequently reported the accident at the Port Adelaide Police Station and it appears, as I said from that report exhibit P9 that the report was made at 1705 hours on 11th June, 1993.I think it is reasonable to assume that the accident was reported on the way to the Small Boat Cub, though that does not appear from the evidence.

Mr. Walsh's evidence was markedly different and he was supported in many respects by his defacto wife.It was his evidence that it was his custom to deliver and to pick up the couples' eldest child, a girl then in Reception at Paradise Primary School.Often he drove, sometimes he walked.Sometimes his wife accompanied him whether driving or walking.On occasions they took their second child to day care some distance away near the O-Bahn terminus.This was not one of those days.On the day in question he said thathe was on the journey to collect his child from school.His wifewas sitting in the front passenger seat.Their second child, a boy of about 3 or 4, was seated on a "booster" seat and restrained by a seatbelt in right hand rear seat of the car and a baby of about 12 or 13 months was in a child's car seat mounted in the middle of the rear seat of the vehicle.He was on his customary route which was to drive from their house on the corner of Greenwillow Avenue and Waterbury Road, a distance as I said of something in the order of 60 metres, to turn left into Silkes Road and then turn right into Reservoir Road havingtravelled to the north a distance of something in the order of 45 to 50 metres, and to travel down Reservoir Road turningto the first street to the left, Harris Street, to park in the car park at the rear of the Paradise Primary School where, together with other parents, they would pick up their young child.In essence it was his evidence that he had put the older child into the booster seat, and that his wife had put the baby into the baby seat;that he stopped at the junction of Waterbury Road and Silkes Road, indicated his intention to turn left by his indicator light, and then drove to the left.At that stage he said he noticed a vehicle entering Silkes Road from Gorge Road to his right and noticed a vehicle travelling south along Silkes Road from his left.He executed the left hand turn into Silkes Road, indicated his intention to turn right, became stationary at a position to the left of an imaginary centre line of Silkes Road, preparatory to commencing to turn into Reservoir Road to his right, waited till the oncoming vehicle had passed, and commenced his turn. He said that during the course of his manoeuvre down Silkes Road his wife had looked to the rear of the car to ensure that the children were secure in their seatbelts and that he heard her say "look out". As that happened, he had commenced his turn.Hesaw out of the corner of his eye the flash of a red vehicle.He attempted to steer to the left but the red vehicle collided with his.He describes the point of impact by his drawing on exhibit D11 as being within the area of the junction of Reservoir Road and Silkes Road, although he concedes that his diagram may have been a little inaccurate in that he has depicted his own vehicle as being a little further to the north than it was. He says, however, that the right hand corner of his vehicle was approximately two feetover the imaginary centre line, that is to the east of the imaginary centre line, and that it was at an angle in the order of 30 degrees to the imaginary centre line.Mr. Walsh's evidence was that the plaintiff's vehicle then drove on and pulled to the western side of Silkes Road, that he drove his vehicle to that side of the road and parked behind it;that an altercation took place between the plaintiff and himself in which his wife joined;that he gave the plaintiff his name and address; that the plaintiff then left driving north up Silkes Road and that he went on to pick up his child.

Ms. Dawes in outline described a similar situation.She recalls seating both the children into the car herself.. She said that the vehicle driven by her husband had come to stop at the junction of Waterbury Road and Silkes Road and that it then commenced its left hand turn.As it did so, she turned her body and head towards the rear of the vehicle to make sure that the children were secure in their seatbelts and that as her husband commenced to turn to the right into Reservoir Road, she turned her attention again towards the north. As she did so she noticed out the corner of her eye a red vehicle at the right hand side of theirs.She called out to her husband, and a collision occurred. She put the point of impact to approximately the same position as that of the evidence of the plaintiff and of Mr. Walsh.She says that the plaintiff's vehicle then proceeded and pulled up on the western side of Silkes Road.Her husband drove his vehicle to park behind it.She says that her husband and the plaintiff became involved in a heated discussion and that she, having ensured that the children were safe and unharmed, got out of the car and spoke to the plaintiff.The broad effect of her evidence was that her husband gave particulars of his name and address to the plaintiff and that that the plaintiff gave hers in return.The plaintiff then drove off.She and her husband then went to the school to pick up their child.

Herevidence and the evidence of Mr. Walsh is not clear as to what route they took.The impression I have is that they said they drove up Reservoir Road following their normal route which would have meant a manoeuvre something in the order of a U turn, but that topic was not examined by counsel.

There was no evidence other than that of which I have spoken.There was no evidence of damage to the vehicles.There was no evidence of debris on the road.There were no independent witnesses called.The plaintiff made her report to the police shortly after the collision occurred.Whilst to an extent it is a self supporting statement, it was at least made shortly after the event.Mr. Walshdid not report the matter to the police.I came to the conclusion from his evidence that I should accept the plaintiff that he was reluctant to give his name and address.I accept that ultimatelyhe did give his name, but not his address, because he was aware of the fact that he might face prosecution for driving an unregistered and uninsured vehicle whilst unlicensed.I make a finding in the plaintiff's favour on that small aspect.

The witnesses agree that a collision occurred between the two vehicles.It is agreed that the collision took place within the area of the junction of Reservoir Road and Silkes Road in a position a little to the east of the imaginary centre line of Silkes Road and that the points of apparent damage to the vehicles were to the left hand front corner of the plaintiff's motor vehicle and the right hand side of Mr. Walsh's vehicle towards the front.I accept that when Mr. Walsh saw a flash of the red vehicle he attempted to pull to the left but did not succeed in doing so.

I make the finding thatMr. Walsh had driven from his home and come to a stop at the junction of Waterbury Road andthen executed a left hand turn into Silkes Road with the intention of turning into Reservoir Road.

It is obvious that the plaintiff is mistaken in her recollection that she when she entered Silkes Road,that Mr. Walsh's vehicle was approximately half way between Melinda Crescent and Waterbury Road.I think that she is mistaken as to the relevant positions of the vehicles as far as the position of the junction of Waterbury Road and Silkes Road were concerned when she drew up behind the vehicle driven by Mr. Walsh.On simple issues of credibility I am satisfied that she has a good recollection of seeing Mr. Walsh and Ms. Dawes in the vehicle driven by Mr. Walsh. Iaccept that she saw them apparently in conversation shortly prior to he collision.I am satisfied that she was aware of a vehicle travelling in the opposite direction and commenced to pass Mr. Walsh's vehicle as it commenced its turn into Reservoir Road.There is a simple conflict between her evidence and Mr. Walsh on the vital issue as to the positionfrom which Mr. Walsh commenced his turn.The plaintiff says it was from the left hand side of the roadand that, Mr Walshwas moving at the time he commenced his turn,and that he did not give any indication.Mr. Walsh says that he was stationary to the west of the imaginary centre line indicating his intention to turn right.Ms. Dawes who in my view is the least likely person to have subconsciously reconstructed the events said, and I accept her as being completely truthful, that she did not really know where Mr. Walsh's vehicle was when it commened its turn that she did not know whether it had stoped in Silkes Road, and that she did not recollect whether the indicator was operating or not, I am therefore left in a position where I must attempt as best I can to conclude by reasonable inferenceon the balance of probabilities what theevents leading up to the collision were.

My conclusion rests upon the facts which I can find without hesitation.The principle factis the position of the vehicles at the moment of collision. I find on Mr. Walsh's evidence and that of both the plaintiff and Ms. Dawes that Mr. Walsh's vehicle was at an angle facing somewhat in the order of 30 degrees to the east of north and somewhere perhaps about 2 feet to the east of the imaginary centre line of Silkes Road and was in the area of the junction of Reservoir Road and Silkes Road.Bymy phrase "within the area of the junction" I mean the area circumscribed by the prolongations of the southern and northern kerbing alignment of Reservoir Road and the eastern western kerbing alignments of Silkes Road).

Consistently with that finding, I find that Mr. Walsh had driven his vehicle from a line of travel near the Western kerb of Silkes Road to bring it toan angle of approximately 30 degrees to the east of north at the moment the collision occurred.I make the obvious finding on all the evidence that the plaintiff's vehicle was travelling north and on the carriage way for southbound traffic on Silkes Road at the time the collision occurred.I draw the inference on the balance of probabilities that Mr. Walsh had driven his vehicle for a short distance in a northerly direction along Silkes Road in a position near the western kerbing alignment and had executed a fairly sudden manoeuvre to commence his turn prior to the collision.I am not able to make any finding at all as to whether he gave an indication of his intention to turn.

It is plain to me that the defendant was negligent and that he was aware of the presence of the plaintiff's vehicle as he entered Silkes Road.I think he was mistaken as to the distance away that it was.I find that he thought that he could safely execute his manoeuvre.I come to the conclusion that he was concerned with the oncoming vehicle which was travelling in a southerly direction along Silkes Road.That occupied his attention.He was not aware of the immediate proximity of the plaintiff's motor vehicle until the instant before the collision. I think it possible that Mr Walsh did operate his indicator lights, but that he did so at a stage when the plaintiff was commencing her overtaking manoeuvre, and that she did not see the indicator light.As I say, however, I think that only a possibility.Mr Walshshould have been conscious of the plaintiff's vehicle by looking in his rear view mirror or over his shoulder.He did neither.I think the preponderance of responsibility must rest with Mr. Walsh.

On the other hand it is eminently clear that the plaintiff, on the basis of her evidence consistent with my findings of the facts surrounding the collision was herself significantly in departure from proper standards of care for her own safety.Her look out was obviously defective.Taking due account for the lapse of time and the mistakes of recollection and the natural reconstruction of memory to which all human beings are subject, it seems to me that she was obviously mistaken about her observations of theposition of the vehicle driven by Mr. Walsh when she first saw it.I think that she was careless in attempting to overtake his slow moving vehicle at a point a little to the point of Waterbury Road junction when Mr. Walsh's vehicle was travelling very slowly, that she should have been alert, irrespective of the question whether Mr. Walsh's indicator lights were working or not, to the possibility that he may have been contemplating a turn to the right into Reservoir Road.Ms. Bobrige is very familiar with the area. Her parents had lived in that area for thirty years.I think that she departed from proper standards of care in commencing the overtaking manoeuvre when she did. Whilst I accept thatwhen she realised that a collision might occur, she sounded her horn and attempted to swerve to the right and brake.But the die had been cast by the time she commenced her manoeuvre of overtaking.

Mr. Harms for the plaintiff argued that I should conclude that the plaintiff commenced to turn at a slow rate of speed suddenly and without warning from the extreme left hand side of the road and that there was no basis for any finding of contributory negligence.Mr. Phelps for the nominal defendant argued that the preponderance of liability should rest upon the plaintiffalthough he conceded , as I understand his submissions, that there was some degree of departure from the proper standards of care on the part of Mr. Walsh.

Considering the whole matter I find it difficult in one sense to separate the relative departures of proper standards of care between the two drivers.As I have said I am satisfied that Mr. Walsh was negligent.I am also satisfied that the defendant has establishedthat the plaintiff was. On my findings the plaintiffhad the position to observe what the defendant was doing. Conversely the defendant had the obligation to keep a look out for traffic coming from his rear and not to impede its progress.It is impossible to make too fine a distinction.My view isthat the proper apportionment of liability between the two parties is that Mr. Walsh, and the nominal defendant in his shoes, should bear two thirds of the responsibility for the collision and that the plaintiff should bear one third.

There will accordingly be judgment for the plaintiff in the sum of $23,189.40 in pursuance of the agreement between the parties.That sum includes interest. I will hear the parties as to costs.