Brown, Shirley Leona v Steward, Mark Andrew

[1998] TASSC 110

110/1998

PARTIES:  BROWN, Shirley Leona

v
STEWARD, Mark Andrew

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1542/1994
DELIVERED:  18 September 1998
HEARING DATE/S:  12 August 1998
JUDGMENT OF:  Cox CJ

CATCHWORDS:

REPRESENTATION:

Counsel:
             Plaintiff:  L K Wall
             Defendant:  A J Denehey
Solicitors:
             Plaintiff:  Wallace Wilkinson & Webster
             Defendant:  Murdoch Clarke Cosgrove & Drake

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  110/1998
Number of pages:  4

Serial No 110/1998
File No 1542/1994

SHIRLEY LEONA BROWN v MARK ANDREW STEWARD

REASONS FOR JUDGMENT  COX CJ

18 September 1998

This is a running down case in which the issue of liability is being tried first.  The collision between the plaintiff's vehicle and that being driven by the defendant occurred on 28 September 1991 and at the time there did not appear to have been any personal injury caused to anyone involved.  Hence, although the police attended, the investigation was somewhat superficial, the names of any bystanders were not procured and the evidence is sparse.  The plaintiff has given her account of how the collision occurred and has called the female passenger in her vehicle to support it, while the defendant, who was the sole occupant of his car, has given a contrary version.  One of the police officers who attended the scene has given evidence of statements made by the plaintiff which are somewhat inconsistent with her present testimony.  I am satisfied that all the witnesses have done their best to give an honest account of the incident as they observed it, but clearly one or more is mistaken.

The plaintiff, then aged 41, worked as a cook at the St Helen's Hospital and other establishments.  On the day of the accident, a Saturday, she had worked between 7am and 1pm or 2pm at a motel before starting work at the hospital at 3.30pm and concluding at about 8.15pm.  With another work acquaintance to whom she occasionally gave a life home, she left the hospital at about 8.20pm and reversed her Commodore sedan out into Macquarie Street before straightening up and travelling in an easterly direction down that street towards its intersection with Harrington Street.  The distance between the hospital laneway from which she exited is 120 metres from the stop line at the intersection.  She was travelling in the middle of the three lanes in Macquarie Street.  As she reversed out, she said there was no traffic behind her and she could not remember any traffic in front of her between her and the traffic lights at the next intersection.  These were then red.  She said she moved forward slowly towards the lights and when she was a short distance away from the intersection, the lights changed to green in her favour.  She was at that stage travelling at 15 - 20 kilometres per hour and put the car in second gear.  As she started to go across the intersection, she caught sight of something out of the corner of her eye and the defendant's vehicle, which had been travelling up Harrington Street in a northerly direction, moved into the intersection and collided with her car on the right side.  The blow was a hard one and turned her car to the left "almost heading back up Macquarie Street".  She managed to drive it into Harrington Street on the northern side of the intersection and to park it next to the hotel on the north west corner.  The other car, after the impact, collided with a car which was parked in Harrington Street on the eastern side of the road, one car parking space from the corner, and that in turn was pushed into yet another car in front of it.

The plaintiff's passenger was unable to alight from her door, which could not be opened, and remained in the vehicle while the plaintiff got out and spoke to the defendant who came over and enquired if she was alright.  Apart from that enquiry, the plaintiff could not recall any of the conversation she had with him.  It was put to her in cross-examination that she had said to him (and he later gave evidence to this effect), "It's all my fault. It's all my fault.  Don't worry I'm insured."  Her response was, "I don't recall saying that."  When asked if she could have said it, she replied, "No, I don't think I could have."  She conceded that she did not then accuse him of being at fault.  While at the scene, the plaintiff advised the defendant that she was insured.  I cannot make any finding as to precisely what was said by her about insurance that night, but she rang the defendant the following day and according to an answer to interrogatory given by her and tendered by the defendant, she asked him which insurance company he was insured with.  Her answer continues:

"He replied, I thought you were going through yours and I replied with words to the effect that I was but I needed the name of his insurance company.  I also indicated to him that he was in the wrong and he did not respond."

The fact that the plaintiff seems to have at first intended to claim for any damage to her car against her own insurer, rather than against the defendant's insurer, suggests that she did not initially regard him as being at fault.

The police arrived about ten minutes after the accident.  There was a male policeman, Constable White, and Policewoman Gill.  The plaintiff initially denied speaking to Constable White and said she only spoke to the policewoman, who took a statement from her.  It was put to her that she had told Constable White at the scene that the lights must have been green because she was following other traffic through the intersection and that she had looked at her passenger and said, "They were green, weren't they?"  Her responses to these propositions respectively were, "I couldn't have been following other vehicles through because there was just nothing on the road that night" and "I wouldn't have done that because I know what colour that light was."  Asked again about turning to her passenger and saying, "They were green, weren't they?", she replied, "Well I can't recall doing that".  She also said she could not recall saying to Constable White that the cause of the accident was a malfunction of the traffic lights.

Mrs Weston gave evidence for the plaintiff that she was her passenger on this occasion.  She said that the plaintiff had reversed out into Macquarie Street at the hospital and that there was nothing behind her.  She said they proceeded down to the lights in the far right lane or the one next to it "not much faster than walking pace", and that the lights ahead of them were at first red but had changed to green when they came level with a chemist shop short of the intersection.  They entered the intersection with the lights still green and were then struck on the right by the defendant's car.  Apart from the defendant's enquiry as to whether everyone was alright, she heard nothing of the conversation between him and the plaintiff.  In cross-examination, she acknowledged that on a previous occasion she had said that the plaintiff was in the far left lane in Macquarie Street as her car proceeded towards the intersection.  Asked to explain the inconsistency, she said "which in my recollection at the time was right but now that it has been - I have thought about it more she couldn't have been in that lane - it was far too far away".  Pressed about it, she claimed to now know that the plaintiff was in the middle lane "because I now recall every time Shirley went home we went straight down towards the Brooker Highway".  She also acknowledged that she had, on a prior occasion, said that as they proceeded down Macquarie Street, they were admiring the cars in the windows of Motors Showroom about 60 metres from the intersection.  As the question was "You were admiring the cars, etc", her affirmative answer may have been referable only to herself rather than to both her and the plaintiff.  She conceded that they were talking and that the car radio was probably on low.

The defendant's evidence was that he had been driving along Davey Street, had turned right into Harrington Street and was proceeding north along the rising roadway in the middle of that street towards its intersection with Macquarie Street, intending to proceed along Harrington Street to Collins Street.  The light at the intersection was red against him when he first entered Harrington Street, but about two-thirds of the distance along that street, the light had changed to green.  He accelerated and had entered the intersection at a speed not in excess of 35 kilometres per hour.  When he was a short distance from the intersection, he observed an east bound car proceeding down Macquarie Street pull up at the lights in the extreme southern lane before the defendant entered the intersection.  Half way through the intersection, he became aware of another car to his left speeding very quickly.  An accident had been unavoidable.  The plaintiff had been very distraught and agitated, had admitted fault and said she was insured.  He said he had heard her say that perhaps there had been a malfunction of the lights, but out of politeness he had not chosen to contradict her.  The following day he said that she had telephoned him and said that "she had been thinking about it and she wasn't going to take responsibility for what happened because she felt that it was clearly a malfunction of the lights".  She had not accused him of being at fault or trying to "run a red light".

Although slightly abrasive and possibly over self-confident in his rendition of how the accident occurred and of its aftermath, nothing in the defendant's evidence gives me reason to doubt its basic accuracy.  Two criticisms were made of it by counsel for the plaintiff, but I do not think they are made out.  His evidence about the car which stopped at the lights on his left was in accordance with an answer to an interrogatory in which he had said:

"Immediately on turning into Harrington Street from Davey Street I noticed several vehicles passing through the intersection of Harrington Street and Macquarie Street, Hobart in Tasmania.  I would estimate that I was approximately 80-90 metres south of the point of collision when I first observed those vehicles.  I travelled up Harrington Street approximately 60 metres when I observed the lights I was facing turn green.  Shortly prior to that I observed a vehicle travelling east on Macquarie Street pull up at the lights in Macquarie Street.  It would have been approximately 55 metres south of the point of collision when I observed that vehicle."

In his statement to the police on the night of the accident, he said:

"About 10 metres from the intersection traffic lights facing me changed from red to green and I proceeded to travel through the intersection at about 35-40 km/h.

I was about way [sic] through the intersection when I saw a car approaching me on Macquarie Street from my left.

I braked and swerved to the right but was unable to avoid a collision with the oncoming car, as it continued through the intersection.  I slid into the rear of a Silver Station Wagon parked in Harrington Street on the opposite side of the intersection outside the church.

I noticed that as the vehicle approaching me travelled through the intersection in the centre lane, a car alongside, also travelling down Macquarie Street stopped for the red light."

On the face of it, this suggests that the two vehicles to his left in Macquarie Street were abreast until they reached the intersection, but one stopped and the plaintiff's vehicle continued, whereas the answer to interrogatories states that the first car was ahead of that of the plaintiff and stopped well before the latter reached the intersection.  I see nothing sinister in the discrepancy and I reject the suggestion made in cross-examination that the actions of the first car were invented by the defendant to make his account more plausible.  The statement, though signed by the defendant, was written down by Constable White as a composite version derived from questions he asked and answers given to him by the defendant.  There is always potential for misunderstanding in this process and for error in the translation.  Having been involved in a four car collision, the defendant should not be held to it too literally merely because he signed it at the scene without demur.

The second criticism arises from the fact that the stop line making the western extremity of the intersection is about 2½ metres west of the extension of the building line in Harrington Street and the southern most parts of it would not be visible to the driver of a car in the middle lane of that street until he was less than 10 metres from the stop line ahead of him.  However, the defendant explained that he was conscious of the lights of a vehicle which stopped at the traffic lights, not necessarily on the stop line.  I accept that he could have been aware of the existence of a vehicle stopping just before the lights when he was an appreciable distance short of the lights facing him.  I am not prepared to reject the defendant as a reliable witness of the truth.

The final witness called was Constable White.  He was completely independent and there is no reason not to accept the substance of his evidence.  He confirmed that he had in fact spoken to the plaintiff and that she had said in respect of the colour of the traffic light, "something to the effect that it must have been green because the vehicle in front of her had travelled through the intersection as opposed to a clear recollection of her view of the traffic lights".  Asked if at any time she had made any enquiry of her passenger concerning the colour of the lights, he said without objection:

"This lady was standing with Mrs Brown as I was talking to her.  When she said something to the effect of the vehicle in front of her travelling through she looked at the lady and conferred with her, saying something to the effect of it was green, wasn't it? as if she was looking to her for some moral support.  They conferred between the two of them just briefly and they reached some consensus that it was in fact a green light and this was conveyed to me."

I find that the defendant did not pass into the intersection while the traffic light was red against him, but rather that he did so when it had turned to green some seconds earlier.  I cannot accept the evidence of the plaintiff in preference to his in view of her statements to the police deposed to by Constable White; nor do I feel confident in accepting the evidence of her passenger, who had previously claimed their car was in the extreme left hand lane but abandoned that version by an obvious process of reconstruction. 

For a driver proceeding easterly down Macquarie Street, the roadway ahead is clearly visible for several blocks, each marked with traffic lights.  It is possible that a driver might see a green light at the intersection of Murray and Macquarie Streets and confuse it with the light at the Harrington Street intersection.  For a driver travelling up Harrington Street, however, Macquarie Street represents the crest of the hill facing him.  It is not possible to see beyond or to confuse the lights at Macquarie Street with any further on.  If the plaintiff's evidence is correct that the lights changed in her favour when she was in a position which would have been some 30 metres distant from the point of collision and had been proceeding at approximately 20 kilometres per hour, the lights facing the defendant would have been red for approximately 5½ seconds as she traversed those 30 metres.  I accept the submission that it is highly unlikely the defendant, faced with a red light standing so prominently at the crest of the hill in front of him, would have failed to have seen it or, having done so, would have taken the chance of entering the intersection in anticipation of it changing in his favour.  There is no room for any finding of negligence against the defendant in the circumstances, nor was it contended that one should be made if I found he had the light with him when he entered the intersection.  On my findings there was no reason for him to have anticipated that the plaintiff, whose approach was obscured by the building line in Harrington Street, would have attempted to cross against the red light which had been against her for an appreciable time and which had alerted another car shortly ahead of her and to her left to the need to stop.  Henderson v Hassall (1986) 3 MVR 539, Joseph Eva, Limited v Reeves [1938] 2 KB 393, McCutcheon v Grimmond (No 2) (1986) 40 SASR 487, Thompson v Mumford (1990) 11 MVR 441, Hemphill v Meaghan B4/1989, a decision of Crawford J, are all cases illustrative of the reasonableness or otherwise of acting upon the assumption that other road users will obey the relevant traffic regulations.  In each case that is a question of fact (Sibley v Kais (1967) 118 CLR 424) and in the present I am of the view that it was perfectly reasonable for the defendant to proceed on the assumption that other drivers on his left would not enter the intersection once the light against them had been in operation for a significant period of time. I think it is more probably the case that the plaintiff was distracted by a conversation with her passenger and simply failed to appreciate that the light was against her. There must accordingly be judgment in favour of the defendant.