Bower v Motor Accidents Insurance Board
[1988] TASSC 104
•27 October 1988
Serial No B36/1988
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Bower v Motor Accidents Insurance Board [1988] TASSC 104; B36/1988
PARTIES: BOWER
v
MOTOR ACCIDENTS INSURANCE BOARD
FILE NO/S: 1452/1986
DELIVERED ON: 27 October 1988
JUDGMENT OF: Nettlefold J
Judgment Number: B36/1988
Number of paragraphs: 44
Serial No B36/1988
List "B"
File No 1452/1986
BOWER v MOTOR ACCIDENTS INSURANCE BOARD
REASONS FOR JUDGMENT NETTLEFOLD J
27 October 1988
On 8 June 1985 the plaintiff was driving a Toyota Tarago van along Victoria Parade, Devonport, in what approximates to an easterly direction.
The plaintiff contends that, at the time, there was an unidentified motor vehicle travelling along Victoria Parade in the opposite direction. He contends further that the unidentified vehicle travelled on the wrong side of the road and, in effect, forced him off the road when he was negotiating what was for him a right hand bend. After being forced off the road his vehicle collided with a tree stump in consequence of which he and each of his passengers were injured.
The plaintiff pleads that the identity of the offending motor vehicle cannot be established. He claims damages for personal injuries against the defendant.
By an order of the Master the hearing is confined to the question of liability.
The issues which must be determined now are the following:–
(1) Was there an unidentified motor vehicle as alleged.
(2)If there was, has the plaintiff made out his contention that the identity of the unidentified motor vehicle cannot be established.
(3) Was the driver of the unidentified motor vehicle guilty of negligence as alleged.
(4) If so, was the plaintiff guilty of contributory negligence.
Sergeant Hugh Wilson of Traffic Control, Devonport, attended the scene of the accident at approximately 11.25 pm. He found the plaintiff's red Tarago wedged hard up against a large tree trunk off the left hand side of Victoria Parade as you face along the road towards the city. This was at the exit of a right hand curve as you travel towards the city.
At the scene Sergeant Wilson located black rubber marks on the kerb on the left hand side facing the city. From those marks to the rear wheels of the Tarago were parallel tracks through wet grass. They commenced at the black rubber marks on the kerb and ended at the rear wheels of the Tarago. From the scuff marks on the kerb to the left rear wheel was 13 metres and the right rear wheel 10 metres. The marks through the grass appeared as tracks through the grass and not skid marks. It had not been raining and the road surface was dry. The grass was wet apparently as a result of dew. These marks on the kerb were about 80 metres from where the driver of the Tarago would have commenced to turn the steering wheel to the right. The marks on the kerb were 75% of the way through the curve.
Sergeant Wilson described the road surface as sealed bitumen in good condition. At the time of the accident, there was no line to indicate the centre of the road. The width of the road from kerb to kerb as paced by Sergeant Wilson was 10 metres.
Sergeant Wilson said that he was familiar with this section of the road and he was able to say that, approaching the corner, the plaintiff would have a good view across the corner. The shrubbery and trees to the right of the corner did not appear any different at the time of the accident to their appearance in exhibited photos "D" and "E". The light on the light pole shown in those photos was operating when the Sergeant arrived at the scene. Sergeant Wilson found that there were no parked cars near the curve and no other obstructions in the general area.
Sergeant Wilson described the corner as a sharp right hand corner, "to the unwary deceptively sharp". It tightens all the way through; it starts off as a gradual curve and gradually tightens.
Sergeant Wilson could not find any tyre marks on the bitumen prior to the black scuff marks on the kerb. He estimated the width of the Tarago van as 1.8 – 2 metres.
There is no doubt that the plaintiff and his passengers who gave evidence were honest and intelligent people. But there are problems about the details of their evidence. I turn to their various descriptions of what they experienced of the other vehicle involved in the accident.
Of course, it is plain that there was another vehicle involved.
The plaintiff said that he left the Surf Club and turned left to travel along Victoria Parade towards the city. There was a vehicle in front of him travelling very slowly which he passed.
He commenced to take the curve in question. He was probably half way through the corner when he noticed lights coming towards his vehicle rather quickly and on the incorrect side of the road. He said he felt that it was clear that there was going to be a collision and, to avoid that, he turned his vehicle to the left of the oncoming vehicle. He went up the gutter to the left of the road and into the tree stump. When he first saw the other vehicle it would have been approximately 25 metres away and, at that stage, his vehicle was going through the turn at a speed of about 40–45 kilometres per hour. He was possibly half way through the turn when he first noticed the other vehicle which was on the wrong side of the road and "head on towards the van". "But it was sort of middle of the road on to my side of the road". There was no room to pass. The speed of the oncoming vehicle was much faster than the speed of his own vehicle and he estimated the speed of the oncoming vehicle at about 60–65 kilometres per hour. He did not believe that there was any other avoiding action he could take. One of the passengers had said "Watch out" or words to that effect, but he had spotted the other vehicle "pretty much as the other person obviously did".
In cross–examination the plaintiff said he first became aware of the other vehicle when he saw its lights about 20 – 25 metres away and his vehicle was about halfway through the curve. Immediately he became aware of the presence of the other vehicle he was also aware it was on the wrong side of the road. However, during cross–examination he was asked "And when you first saw the lights you were not then aware that it was on the incorrect side either partially or totally?" and replied "Probably not 100 per cent initially". It was probably that process that happened. His impression was that his vehicle was partially on the grass verge as the other vehicle passed it. He had formed the belief that there would be a collision if he continued through the turn and that is why he veered to the left. He said "The way it happened was I saw the vehicle. I thought I had given it time to get back on its correct side, it didn't, the collision was inevitable and that's when I veered left."
Initially what he saw were the lights only and not the vehicle itself. But, as he was leaving the road, he could define it to be a vehicle. He assessed its position on the road from the lights rather than the framework of the vehicle. He suggested that the approaching vehicle was on his side of the road to the extent of three quarters – the whole of its width. "His left wheels if you like may have straddled the imaginary line." He thought that, when he first saw the approaching vehicle, it was approaching the actual curve and had not yet started to turn. He said "Intention was more to get out of the way of the car and, hopefully, try and get back on the road. I believe I tried to get around the vehicle. I think that was always the intention, to get around the vehicle. I think I had a conscious thought of getting around the vehicle." He believes he applied the footbrake but his recollection of that is only vague.
He thought the other vehicle was a smaller vehicle of light colour. He said the approaching vehicle was at least three feet on his side of the road. Later he said he did not think there was room to pass as the approaching vehicle was at least three feet on to his side of the road. He felt his option was to be hit or get out of the way and it was a split second decision.
There are the following questions and answers which are of particular interest:
"Q....... You made a conscious decision when you first saw the vehicle on its incorrect side ... not to take evasive action but to wait and see whether it got back to its correct side?
A I think there was that time for allowing for that to happen, yes Sir.
QWell, are you able to say whether that was a conscious decision on your part at that time?
AI believe so, yes. ....... I believe that the time that I allowed the vehicle to alter position on the road was only about a second.
QDid it occur to you when you first saw it on the incorrect side of the road to blow your horn or to draw to the attention of the oncoming driver that you were there on the road?
A No, I didn't do that.
Q Did it occur to you to do that?
AAgain, I think it was that second that I believed that once it seen me it would have altered its position.
Q What was that?
AI believe that again once the other vehicle had seen my presence on the road it would have altered its position."
In answers to interrogatories the plaintiff said (inter alia) that, when he first saw the other vehicle, the other vehicle was straddled across the centre of the road about half way across his lane. It was approximately three feet on his side of the road and less than 30 metres from his vehicle. Interrogatory No 7 and the answer thereto read as follows:
Q "After you first saw the other vehicle did you for any and what reason:
(a) alter your direction of travel
................
(c) alter your position on the roadway
and if 'yes' state how it so altered and your position on the roadway at the time of each such alteration."
Answer to Interrogatory No 7:
"(a)No I proceeded in a general easterly direction because if I had turned with the road I would have collided with the other vehicle.
(c) No."
Mr P A Fiddes was a passenger in the van seated along side the driver. He was badly injured and does not recall a great deal. But he did remember that, just before the accident, he was half turned in his seat talking to Mr Longstaff, and he got a glimpse of a set of lights and Brian Longstaff said "We are in trouble now" or words to that effect.
Mr S R Pettyfor was seated in the van in the centre row of seats. Mr R Turner was on his left and next to him. Approaching the accident scene he was turned in his seat speaking to Mr Brian Longstaff who was in the middle of the back row of seats. Mr Longstaff said "Look out, we're in trouble here" or words to that effect. Mr Pettyfor, having heard those words, turned around and looked straight out the window. He observed a white Cortina straight through the front window. It was a square model with a P plate on the front grille, he would say a 1969 Cortina or that era of car. At that stage their van was not going fast. "It's hard to say but we sort of weren't travelling at any real sort of speed". Mr Pettyfor said that he was not really aware of the position of their van at that stage, as it happened so quickly. "There it was and it was sort of all over." To be specific, he said he could not recall whether the van was on its correct side or not.
Mr Pettyfor said that, when he first saw the other vehicle, it was 15–20 metres from the van, probably, "but it is hard to say". "All I can remember is seeing the front of the car and that was sort of it but it was close." It looked to be going at a fast speed.
Their van came to a sudden stop. Mr Pettyfor did not feel any braking or swerving or anything like that.
Asked in cross–examination "The driver's side of the oncoming vehicle was on the white line?" he replied "That's right". Later he was asked "Well, you say that from your visual observation of the car, oncoming vehicle, the right hand side of that vehicle would have been close to the centre of the road?" and replied "Middle of the road".
Mr Pettyfor said that he was not aware of any reduction in the speed of the Tarago van before he heard the thump, ie of the collision of the van with the tree stump.
Mr R J Turner said the van appeared to have been going only a short distance when he saw the flash of headlights, at the same time the plaintiff was taking some evasive action and Brian Longstaff at the same time, just prior to it, said something like "Here's trouble" and then a short distance afterwards the van mounted the kerb and hit the tree. It happened into a bend in the road. He remembers seeing lights coming around the corner and a car being on their side of the road. It all happened so quickly but he would have thought the approaching vehicle was 20–30 metres away when he first saw it. He formed the impression that this approaching vehicle was going rather quickly, definitely much quicker than their van was going. It seemed that the approaching vehicle was not taking the corner "all that well, being on the wrong side of the road".
Mr Turner said he formed the opinion that the van was doing no more than 60 kilometres per hour when he first saw the other vehicle. Asked "And what was the position of the other vehicle on the roadway when you first saw it?" he replied "Yes I felt it was probably half way over into our side of our carriageway, to our half of the road". Asked "Now, after you first saw the other vehicle, what were the movements of the van in which you were travelling" he replied "Once – once we – I saw that our – travelling on our carriageway, the other car was then impeding into our section, Geoff had taken evasive action, to the left to get out of the way and then ....". He was then asked "Can you recall what happened to the van, after the van moved to its left?" and he replied "We then mounted the kerb and travelled a short distance and hit the tree". He said that their van veered left just a split second before the possible accident. The lights and the car and the evasive action, "to me it was all just happening all in the same time". The lights of the oncoming vehicle remained on their van "only for that very split second because we just like changed our course to the left to basically get out of the way." Later he was asked "Well, from that I take it that it was a slight movement to the left?" and he replied "Yeah, I agree with that ..... It didn't rock me off my seat if that is what you mean".
Later he said that, if he were asked to say how far the approaching vehicle was over the imaginary centre line, he would answer about half a car width. Asked ".... to the tune of three feet or four feet" he replied "I'd say I think that's fair, yes".
Mr Brian Longstaff said that he was sitting in the middle of the back row of seats. He was speaking to Mr Pettyfor about a game of basketball to be played the following day. Because of his position in the van he had a clear view of the oncoming vehicle and he could see that it was on the wrong side of the road. When the vehicle came into view he yelled out "Look out" or words to that effect. He said that, when he first saw the other vehicle it was 10 – 15 yards from their van. When he first saw the other vehicle the Tarago van was on its correct side of the road and travelling at a speed which was not excessive. But he estimates the speed of the approaching vehicle as excessive, in excess of 60 kilometres per hour. He said that, from when he first saw the other vehicle, it all happened very quickly "We sort of took an evasive action and when I say evasive action we virtually had to keep a different line than that would have enabled us to take that corner. So, the next thing I knew we were continuing on, perhaps in more of a straight line than the one we should have had and we came to a guttering and there was a bit of a bump and, then, bang it was all fairly quick after the bump."
Under cross–examination he said that, when he observed the approaching vehicle it was over on the wrong side of the road, completely over and then it did make an attempt to get back.
He said his best estimate of the speed of their van, when he first saw the lights of the other vehicle, was 50 kilometres per hour.
Mr Longstaff said that the plaintiff did not have much room to manoeuvre. His evasive action was to go into more of a straight line. He said "Well, to tell the truth, I am not conscious of him having to steer it more to its left. I am conscious of us not taking correct line to take right hand turn so in that fact that is evasive action, if you don't turn to the right you go straight."
Mr Longstaff did not notice any appreciable difference in the speed of the van before it hit the kerb. He said that the driver of the approaching vehicle "was just sort of making a rally turn, I guess you would call it cutting the corner". When he first saw the approaching vehicle he would say it was fully on its wrong side of the road. He would say that the passenger's side of the oncoming vehicle was probably a foot from the centre line.
For a number of reasons, that evidence causes some difficulty. The reasons I advert to are the following:
(1) The accident happened on a sudden when the people in the van were in a holiday mood.
(2)All the witnesses who were in the van received substantial injuries except for Mr Pettyfor, and even he was knocked about to some extent although he did not find it necessary to go to hospital.
(3)Except for Mr Longstaff none of the witnesses from the van had visited the scene before giving evidence. And a number of those witnesses had not seen the photographs until shortly before the trial.
(4) The accident occurred nearly three years before the trial.
(5)The van is of such a size and shape that, with the accident occurring at this significant bend, the angle of view of the approaching vehicle would be different for each witness from the van. And, of course, they did not all see the vehicle for the first time at the same moment.
(6)The Police statements of Messrs Turner and Longstaff do not reflect important points from their evidence. However, I regard both of those gentlemen as honest and useful witnesses. I find the explanation for the absence of these important points from the statements in the time and manner of taking those statements.
(7)The evidence of Mr Pettyfor concerning the position on the road of the approaching vehicle is in significant conflict with that of the other eye witnesses.
I find that Mr Longstaff's exclamation and the plaintiff's reaction, when coupled with the evidence of the plaintiff, Mr Longstaff and Mr Turner concerning the position on the road of the approaching vehicle sufficient to displace Mr Pettyfor's evidence on that point. If the approaching vehicle had been in the position deposed to by Mr Pettyfor it is unlikely that Mr Longstaff would have uttered the exclamation he did, unlikely that the plaintiff would have reacted as he did and unlikely that all three of the plaintiff, Mr Longstaff and Mr Turner would have given evidence placing the oncoming vehicle on the road as they respectively placed it. I should add that I do not overlook the very substantial divergence between Mr Longstaff on the one hand and the plaintiff and Mr Turner on the other.
In relation to the conflict between Mr Longstaff and the other two on that point, I call to mind the proposition that the burden of proof is on the plaintiff to prove that there was another vehicle at the scene and the driver of that vehicle was negligent. With the aid of that rule, and bearing in mind the plaintiff's own answer to Interrogatory 2(a), "approximately three feet on my side of the road", I find that the oncoming vehicle did travel during one part of its journey with three feet of its width on the wrong side of the imaginary centre line. That was the maximum extent to which it trespassed. It was then angled back towards its side of the road, cleared the plaintiff's van and continued on. The oncoming vehicle was travelling at a speed which can fairly be described as fast bearing in mind the nature of the road and all the circumstances. However, the evidence does not enable one to assess that speed accurately. The list of difficulties about the evidence which are set out above will serve to explain that conclusion. But the evidence of the witnesses that it was a fast or "quick" speed and it was going "hard" is reliable in the sense that it is an impression honestly formed by intelligent minds.
This behaviour of the approaching vehicle, that is, driving on the wrong side of the road at a fast speed, was the principal cause of the injury to the plaintiff. I have no difficulty in finding that the unidentified driver was negligent.
The burden of proof is on the defendant to prove that the plaintiff was guilty of contributory negligence. I find that the defendant has discharged that burden to the following extent only:–
(1)the plaintiff failed to discharge his duty to drive as close as practicable to the near side of the road; and
(2)having regard to the fact that he was driving around a deceptive and by no means easy corner with which he was not familiar in a vehicle with which he was not familiar he drove at a speed which was somewhat excessive, a speed the best estimate of which on the evidence is approximately 50 kilometres per hour.
In argument on behalf of the plaintiff reference was made to the "agony of the moment" rule. But the findings against the plaintiff involve that, before he saw the oncoming vehicle, he commenced to negotiate that corner with his vehicle wrongly positioned and his speed a little high. Implicit in that statement, of course, is the proposition that I accept the plaintiff's evidence that he first saw the approaching vehicle when his vehicle was in the course of negotiating the actual corner. I do not overlook that in documents signed before trial he suggested that he first saw the other vehicle when "approaching" the bend. I find that that is not the case. A striking feature of the evidence is that each of the eye witnesses, except Mr Fiddes, places the approaching vehicle surprisingly close to the van when they saw the approaching vehicle for the first time. And the van was approximately three quarters of the way through the corner when the approaching vehicle passed it. At that stage the van was leaving the road. The picture one paints from the evidence is inconsistent with the approaching vehicle being in view before the van commenced to negotiate the bend.
The plaintiff was quite insistent that he did not react immediately he saw the lights of the approaching vehicle. He spoke of giving the other vehicle time to get back on to its correct side. Having regard to the difficult position he was in at that moment, and the fleeting impression on which that piece of evidence is based, I do not find him negligent because of that particular point. But that point adds a little to the significance of the two findings against him which have been made. Having regard to the width of the road and the fact that there were only the two subject vehicles and no other obstruction, I am clear that the two driving faults found against the plaintiff did contribute to his injuries. Each lane on that road was approximately 16 feet wide and the encroachment by the approaching vehicle has been found to be to a maximum of three feet. It is difficult to reconcile the plaintiff's evidence that the other vehicle was such a short distance away when first observed with his assertion that he made a conscious decision to give the driver of the other vehicle time to get back to his correct side. But I repeat that the plaintiff was insistent that he recollected a conscious decision to omit taking action for a brief time. It may be that his estimate of distance is a little astray but, speaking generally, it accords with the evidence of the other eye witnesses.
On the issue of apportionment I find that it is just and equitable to reduce the plaintiff's damages by 25%.
The evidence concerning attempts to identify the other vehicle is not in dispute and it is not necessary to set it out. Mr Hill for the defendant, after referring to that evidence, drew attention to the fact that it was quite limited in scope and then said "Apart from highlighting these facts – i.e. that it was limited and there were other steps which could have been considered – I have no further submissions". I am satisfied that his approach was the correct one and there should be a finding in favour of the plaintiff that the identity of the other vehicle cannot be established. The descriptions which the eye witnesses could give were conspicuously lacking in detail. Mr Pettyfor's description was the best and that was in general terms only.
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