Boulton v Delpech
[2007] WADC 165
•20 SEPTEMBER 2007
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BOULTON -v- DELPECH [2007] WADC 165
CORAM: WAGER DCJ
HEARD: 29 AUGUST 2007
DELIVERED : 20 SEPTEMBER 2007
FILE NO/S: CIV 186 of 2007
BETWEEN: SHANNON JAMES BOULTON
Plaintiff
AND
JOSEPH JOSE DELPECH
Defendant
Catchwords:
Negligence - Motor vehicle accident - Liability only in issue - Turns on its own facts
Legislation:
Nil
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff: Mr K S Pratt
Defendant: Mr P E Jarman
Solicitors:
Plaintiff: Trewin Norman & Co
Defendant: Jarman McKenna
Case(s) referred to in judgment(s):
Nil
WAGER DCJ: On 7 June 2006 at about 6.30 pm the plaintiff's car was stationary behind the defendant's car at the right hand turning light at the corner of Erindale and Beach Roads, Warwick. A collision occurred between the rear of the defendant's car and the front of the plaintiff's car. The plaintiff claims that the defendant reversed and collided into the plaintiff's car and that the collision was caused by the negligent driving of the defendant. The defendant denies that this occurred and claims that the plaintiff caused the collision by negligently driving into the rear of the defendant's stationary car. The only issue for trial is liability.
The Plaintiff's case
The plaintiff, Mr Shannon James Boulton, Ms Jackie Louise McCarthy, the passenger in the front seat of the plaintiff's car and Ms Shelby Kate Guilfoyle, the passenger in the rear left seat of the plaintiff's car, each gave evidence.
The plaintiff - Shannon Boulton
The plaintiff, a 32 year old spare parts interpreter from Edgewater gave evidence that he was driving a 1982 Nissan 280 ZX that was in good running order. The car had recently been spray‑painted, the front half being red and the back half being silver with a flame shape dividing the two halves. The car's number plate is "Hotwheel".
The plaintiff's girlfriend, Jackie McCarthy, was in the front passenger's seat. Her friend, Shelby Guilfoyle, was seated behind her. The plaintiff was driving south on Erindale Road intending to turn right from Erindale Road onto Beach Road, Warwick. The turning arrow at the intersection was red and there were already two cars positioned in front of the plaintiff that were stationary at the red light. The car immediately in front of the plaintiff's car was the defendant's silver Toyota hatch. The plaintiff estimates that the Toyota was a good 3 metres ahead of his vehicle. The plaintiff had left additional space between the cars because his car has a very long bonnet. The turning arrow changed green. The first car at the intersection took off however there was a slight delay with the second car taking off once the lights had changed. The plaintiff then saw that the silver car was coming towards him. The plaintiff looked out of his window to see whether his car was moving and when he had ascertained that his car was stationary he applied his brakes even harder. The plaintiff honked the horn because the car in front continued to drive towards him. The plaintiff turned away from the collision at the point of impact.
In cross‑examination the plaintiff described the movement of the defendant's car immediately prior to impact as follows:
"… it wasn't a slow roll. It was accelerator, go. So it was like a launch. It wasn't a roll it was like a launch.
A launch? ---Yes.
Notwithstanding that it was – what do you say – what is a launch? Can you clarify what you mean by that? --- A quick take‑off.
A quick take‑off, back towards you? --- Yes.
And that startled you, did it? --- Very much so.
Yes? --- Very much so, I was ready to go forward." (T11-12)
Following the collision the plaintiff asked his girlfriend to get the details and get the number of the defendant's car. He then got out of his car and opened the driver's door of the silver car just as the defendant was taking his seatbelt off. The plaintiff says that the defendant raised both of his arms out of the car and said "I'm very sorry. I've had a bad day. I'm really sorry" and that they both then shook hands (T6). The plaintiff responded by saying "ok champ let us do our - get our details". The plaintiff's evidence is that both drivers then moved 5 to 10 metres from the defendant's car and exchanged their licence and personal details. The plaintiff noticed that there was some damage to the bonnet of his vehicle which was pushed in and that the bumper was scratched. He had left his car idling after the collision and he noticed that the temperature dial had risen consistent with damage to the radiator. The plaintiff did not notice any damage to the defendant's car because it was dark. The plaintiff subsequently stopped at an ATM machine before dropping his passengers off and collecting an accident report form from the Joondalup Police Station. He completed the report the next morning. The plaintiff sustained physical injuries as a result of the collision and his vehicle sustained $2,500 damage.
The plaintiff denied the defendant's version of events following the collision and specifically denied that he had told his girlfriend to stay in the car and that the defendant's wife had got out of the defendant's car. The plaintiff considered that the road at the location of the collision was a level gradient and he denied that the gradient sloped forward consistent with his vehicle rolling into the rear of the defendant's vehicle.
The plaintiff confirmed that he had made a previous civil claim and agreed that liability in that matter had been apportioned at 75:25 in his favour. The plaintiff understood the issues of apportionment and liability in respect of civil claims. The plaintiff did not have comprehensive insurance and had been forced to make his own arrangements to repair his car.
Jackie McCarthy
Jackie McCarthy, a 23 year old records officer with the Department of Justice had been the plaintiff's girlfriend for approximately 2 years. She gave evidence that she was in the front passenger's seat of the plaintiff's car as it approached the intersection of Erindale and Beach Roads to turn right. She described how the car came up to the red light and eased into a stop. The defendant's car was approximately one half of a car length ahead of the defendant's vehicle. She noted that the red turning arrow changed green. She described the collision as follows:
"Yes? --- Okay, I was looking out the front window. The lights turned green. I don't exactly remember where I was looking at that time but I remember feeling a pull on the car so I then looked at Shannon and then out the front and I saw the car in front. I saw the reverse lights and the car rolling backwards towards us." (T28)
In cross‑examination she described the movement of the defendant's car:
"… you describe the car as rolling back. Is that right? --- Yeah that right.
So what is – can you clarify that? --- That is a gentle rollback? ‑‑- Moving back, rolling back.
So it didn't lurch back suddenly towards you, it just rolled back? --- No it didn't lurch no.
Or it didn't launch itself back? --- No." (T30)
Ms McCarthy attempted to record the defendant's details on her mobile phone. She opened the front passenger door in order to look at the damage to the plaintiff's car however she did not get out of the car. She heard the defendant apologise to the plaintiff and saw both drivers shake hands and exchange details.
In cross‑examination she confirmed that she had talked about what had happened in the accident with the plaintiff however she denied exchanging evidence in any way. She denied that the defendant's version of events following the collision was correct. She described the gradient of the road as flat at the location of the collision. Ms McCarthy agreed with the proposition that the plaintiff was pretty upset to see that his car had been damaged.
Shelby Kate Guilfoyle
Ms Guilfoyle, a 20 year old cake decorator, was the passenger in the left rear of the plaintiff's car. She gave evidence that she was unsure of the location of the intersection where the collision occurred however she recalls that the plaintiff's car came to a stop at a set of red lights when the car was preparing to turn right. Ms Guilfoyle was looking around the defendant's car which she described as being "cool" because of its fit out and the stereo. While looking at the car's interior she noticed that the vehicle in front rolled backwards into the plaintiff's car. She did not remember seeing any reversing lights. In cross‑examination Ms Guilfoyle described the movement of the defendant's car as follows:
"How fast was the car rolling back towards you? How would you describe the speed at which it was coming back" --- I have no idea. It kind of just – basically just rolled back."
Not particularly fast? --- No.
So you used the word "rolled" as if it was sort of a gentle roll back. Is that how you would describe it? --- That is what it appeared, like it kind of just seemed to roll back. I think there was a bit of an impact though when it hit the car, but yeah.
So you wouldn't describe it as launching back towards the vehicle at some speed? --- No." (T24 – 25)
Ms Guilfoyle did not remember the colour of the turning light at the time of collision nor did she recall details of the movement of the people at the scene following the collision.
The defendant's case
The defendant, Mr Joseph Jose Delpech and Mrs Colleen Anne Delpech, the passenger from the front seat of the defendant's car, gave evidence.
The defendant - Joseph Jose Delpech
Mr Delpech is a 49 year old electrical project officer from Kingsley who was driving his wife's automatic Toyota Corolla hatchback. He drove the car regularly and was familiar with it. The car was comprehensively insured with the RAC through his wife's bookkeeping business. The defendant did not make a police report in relation to the collision because he assessed the damage caused in the collision and considered that it was minimal and therefore that a police report would not be required. He reported the collision to the RAC and understood that they would sort the issue out. He anticipated that the insurance claim may lead to an increase in the insurance premium in relation to the Toyota however the cost of the insurance premium was a tax effective business debt attributed to his wife's business so he was therefore not personally concerned about any potential increase in the premium.
At the time of the collision the defendant was driving his wife who was the front seat passenger and his 17 year old son who was in the rear of the car. He intended to pick up his son's friend in order to take the group to dinner to celebrate his son's 17th birthday. The defendant stopped in the right turning lane at the intersection of Erindale and Beach Roads because the turning arrow was red. The defendant estimates that he was approximately 1½ metres behind another vehicle that was already stationary at the lights. After being stationary for approximately 30 seconds he felt a bump to the back of his car. He drove forwards slightly and put the handbrake on in order to get out of the car to investigate the collision. It was at this time that the plaintiff came towards him ranting and raving and accusing him of stopping too early. The defendant said that he got out of the car and said "come on". The defendant is not sure of the precise words that he used however he describes feeling a bit scared of the plaintiff because the plaintiff was "going off". The defendant looked at the damage to his wife's car and determined that there was very little damage.
After the two drivers exchanged details the defendant said words to the effect of "its fine. I'll go to the RAC and make a claim." The defendant also said words to the effect of "the RAC will be in touch with you". The defendant wanted to get away from the scene because of the plaintiff's aggressive demeanour. He describes his wife getting out of the front passenger's seat and looking at the damage to the car and recalls that the plaintiff's girlfriend tried to get out of the plaintiff's car however was told to get back into the car in an aggressive manner by the plaintiff. The defendant recalls shaking hands with the plaintiff at the end of the exchange of details and after the plaintiff had calmed down but denies that this was consistent with any admission of liability on his part.
In cross‑examination the defendant clarified that between the time of the two drivers meeting at the back of his car and the plaintiff telling his girlfriend to get back into the plaintiff's car the defendant said words to the effect of "you've crashed into me - fine". The defendant recalls the plaintiff saying "no, no, no". The defendant says that the plaintiff then said "you stopped too early". The defendant recalls saying "I'm insured with the RAC. I'll get it done through the RAC they will handle the matter". The defendant agreed that the plaintiff had made inappropriate assertions at the scene given that the plaintiff's car had collided with his stationary car however he did not challenge the plaintiff because he was worried about his wife and son given the plaintiff's demeanour and he wanted to leave the scene as soon as possible. The defendant assumed that the matter would be sorted out on his behalf by the RAC at a later date. The defendant describes the gradient of the road as a slope going down. That is, if he had taken his foot off the brake he would have rolled into the car in front of him rather than into the car behind. He emphatically denies putting the automatic car in reverse and he further denies making comments consistent with "I've had a bad day/night". The damage to the plaintiff's car appeared minimal to him however he concedes that he did not closely examine the vehicle nor does he have expertise in damage assessment.
Colleen Anne Delpech
Mrs Delpech, the defendant's wife, is a 51 year old bookkeeper from Kingsley. She gave evidence that the defendant's car stopped in the right hand lane at the red arrow. The car was stationary for approximately 30 seconds. She does not recall seeing the turning light turn green. Mrs Delpech asserts that she was aware of what was going on around her at the moment when she felt an impact to the rear of the car. The plaintiff jumped out of his car after the impact and was ranting and raving and saying "where is your licence where is your licence" to the defendant. Mrs Delpech got out of the defendant's car to look at the damage. She could not see any damage to the plaintiff's car and quickly noted the condition of her car before returning to the front passenger's seat and starting a conversation with her son who was in the back seat of the defendant's car. Mrs Delpech was unable to hear the conversation between the plaintiff and the defendant in any detail once she was back in the car. Mrs Delpech describes the plaintiff's demeanour and manner as being aggressive and strange and she states that the plaintiff was aggressive to her although she did not clarify in what way. She considered the plaintiff's tone in telling his girlfriend not to get out of the car as being an aggressive tone.
Findings of fact
The onus is on the plaintiff to prove on the balance of probabilities that the defendant reversed into the plaintiff's vehicle as a result of the defendant's negligence.
The evidence of the plaintiff and his two passengers differs markedly from the defendant's evidence in relation to the circumstances of the collision, the subsequent contact between the plaintiff and the defendant and the words spoken by the plaintiff and the defendant following the collision. The material issue in this trial is what happened immediately before the collision and although the evidence of what happened after the collision is difficult to reconcile, it does not affect the credibility of the witnesses. The circumstances of what occurred after the collision do not assist me in determining the finding I must reach in relation to causation at the time of the collision.
The plaintiff's evidence is that immediately before the collision he saw the reverse lights and the brake lights of the defendant's vehicle. He was aware that the lights were on because he remembers seeing them go off following the collision. He describes the defendant's speed as being very fast and describes the defendant's car as "it was accelerator, go. It was like a launch". He emphatically denies that the defendant's car rolled back slowly.
The plaintiff's passengers however describe the defendant's car as rolling backwards into the plaintiff's car. The plaintiff's passengers reject the proposition that the defendant's car launched itself at speed towards the plaintiff's car. The plaintiff and his passenger, Ms McCarthy, describe the gradient of the road of the scene as being flat.
The plaintiff's evidence is consistent with the defendant's car being placed into reverse and the defendant applying the accelerator in order to launch backwards into the plaintiff's car at speed. The plaintiff's passengers' versions however are consistent with the vehicle rolling backwards on a gradient sloping backwards into the front of the plaintiff's vehicle with no evidence of reversing at speed. A slow rolling motion is described.
The evidence of the defendant and his wife is consistent with a collision with a car from behind their car in that they were unaware of the details of the other car until after they experienced the impact. Both are emphatic that their car did not move, reverse or roll backward in any way and the defendant describes the gradient of the road at the scene as rolling forward. The defendant and Mrs Delpech are mature credible people. I accept their evidence.
The plaintiff did not call any evidence to confirm the gradient at the scene and there is no suggestion that the gradient rolled backwards towards the plaintiff's car on any of the evidence given.
The plaintiff's evidence cannot be reconciled with the evience of his two passengers. The passengers described a gentle slow rolling motion whereas the plaintiff describes a launch at speed. The discrepancies in the evidence led on behalf of the plaintiff are too great to allow me to accept the plaintiff's evidence in relation to the circumstances that led to the collision. I am not satisfied that the plaintiff has discharged his burden to prove his claim on the balance of probabilities. The plaintiff's claim is dismissed.
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