| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BUTLER -v- RICHENS [2014] WADC 4 CORAM : KEEN DCJ HEARD : 14 JANUARY 2014 DELIVERED : 24 JANUARY 2014 FILE NO/S : CIV 1865 of 2012 BETWEEN : DONALD BRUCE BUTLER Plaintiff
AND
GREGORY JOHN RICHENS
Defendant
Catchwords: Negligence - Collision between two trucks - Contributory negligence - Turns on own facts Legislation: Nil Result: Negligence established - plaintiff 50% contributorily negligent
Representation: Counsel:
Plaintiff : Mr K S Pratt
Defendant : Mr C C Rimmer
Solicitors:
Plaintiff : Rando Solicitors
Defendant : Jarman McKenna
Case(s) referred to in judgment(s):
Gorman v Scofield [2008] WASCA 78
Owners of Steamship or Vessel 'British Fame' v Owners of Steamship or Vessel 'Macgregor' [1943] AC 197
Pennington v Norris (1956) 96 CLR 10
1 KEEN DCJ: On 20 May 2011 a collision occurred between two trucks driven by the plaintiff and the defendant.
2 At about 6.00 am or shortly after on that day the defendant was driving his articulated truck in (approximately) a westerly direction on Miles Road, Kewdale intending to turn left into a driveway to deliver a container of Toyota parts to Toyota premises on Miles Road. At the same time the plaintiff was driving a Hino truck in the same direction and, according to his evidence, intending to turn left into Bell Street some distance past the entrance to the Toyota premises. 3 As the defendant was undertaking his turning manoeuvre, the truck driven by the plaintiff collided with the container on the trailer of the defendant's vehicle. 4 There is no issue that the plaintiff suffered injury as a consequence of the collision and the plaintiff brings proceedings for damages. The issue before the court is in respect of liability only.
The locality, conditions and location of transport companies 5 The area in question is depicted on three exhibits before the court. Exhibit 1 is a large scale plan showing Miles Road which runs between Leach Highway and Kewdale Road. Exhibit 5 is a smaller scale map of the area which appears to have been taken from a street directory and which shows the surrounding areas. Exhibit 2 is a photograph taken from Google Maps which is an aerial view of the driveway to the Toyota premises and a short section of Miles Road adjacent thereto. 6 Miles Road comprises two lanes in each direction. From an examination of exhibit 5 it would appear that, from its eastern end, Miles Road leaves its junction with Kewdale Road and proceeds in a north-westerly direction for a short distance before bearing left to head in a westerly direction for a longer distance. It then bears right, again in approximately a north-westerly direction, for a short distance before reaching its junction with Leach Highway. At about the point where the road bears to the right is a junction with Bell Street on the left. 7 The court was not provided with any measurement of the length of Miles Road. However, there is a legend on exhibit 5 from which it is possible to make some rough calculations of the distances involved. Doing the best I can, it would appear that Miles Road proceeds from Kewdale Road for approximately 150 m before bearing left onto a straight section. That straight section would appear to be approximately 1 km before the road bears right for approximately 200 m before reaching its junction with Leach Highway. 8 The Toyota driveway is shown on exhibit 2. It is at an angle to Miles Road. From that photograph it would appear that, from the perspective of a vehicle travelling in a westerly direction, the driveway angles backwards at approximately 45 degrees. Between the driveway and the road pavement there is a crossover which is depicted on exhibit 2. At the end of the driveway at its junction with the crossover, on its eastern side, there is a brick post or pier. The tightness of the entry to the drive, it being at the angle described, is ameliorated by the crossover with radii or flares to provide for a wider entrance to the crossover land to the driveway itself. 9 There is no dispute that on the day in question at the time when the accident occurred it was still dark. Whilst there is some difference of opinion as to how heavily it was raining, it is quite clear that it was raining at the material time. Also there appears to be little in the way of dispute that the lighting on Miles Road is less than satisfactory. 10 Miles Road is in a predominantly industrial area with industrial premises along its length. It is close to the Kewdale Freight Terminal which is on the eastern side of Kewdale Road. 11 The plaintiff's truck was in the livery of Sadleirs Transport for whom the plaintiff carried out deliveries. The defendant with his prime mover carried out deliveries of containers on a trailer for Toll Holdings (Toll). Sadleirs' premises are situated at the western end of Miles Road at its junction with Leach Highway on the north-eastern corner of the junction of those two roads. The yard of Toll from whence the defendant collected his prime mover and the trailer is on the corner of Abernethy Road and Kewdale Road to the north-east of the junction of Miles Road and Kewdale Road.
The evidence
The plaintiff 12 The plaintiff described his truck as being an unarticulated truck approximately 6 tonne in weight, 25 foot long and eight to 10 foot high. The truck in its damaged state is depicted in four photographs in exhibit 4. 13 The plaintiff gave evidence that on the morning in question he had travelled from Sadleirs' yard in his truck to Welshpool Road and then on to Kewdale Road where he parked his truck. After having breakfast at the Kewdale shopping centre he then drove his truck from Kewdale Road into Miles Road with the intention of turning into Bell Street to pick up some empty pallets before travelling onwards. 14 When he entered Miles Road he was in the left or kerbside lane. When he was about 100 m from where the accident occurred he was travelling at 50 to 60 km/h. He described the conditions as there being drizzle and the light was bad. 15 He said that he saw a truck with a container in front of him with a smaller truck behind it. All he could see of the larger truck was the container but not the front. Both vehicles were in the right-hand lane and he described them as going at a slow speed – 5 – 7 km per hour. 16 When he was approximately 40 to 50 m behind the smaller truck he saw the front left-hand wheel of the larger truck turning. At that point he realised that it was turning and he braked heavily. He said his truck slid into the container on the back of the other truck. His vehicle was damaged as is shown in exhibit 4. He described the damage to the front right-hand corner. 17 Exhibit 3.1 is a photograph of the defendant's prime mover with a Toll trailer and container attached. This is not the trailer and container that were involved in the accident but one very similar. Exhibit 3.2 shows part of the actual container that was involved in the collision. Exhibit 3.3 is a schematic drawing of the prime mover, trailer and container with relevant dimensions. 18 The plaintiff marked exhibit 3.1 to show where the collision occurred. Behind the rear wheels of the prime mover there is the jacking post for the trailer below the letter 'O' in the company name 'TOLL'. It is at about that point on the trailer that the plaintiff indicated the point of impact. 19 The plaintiff did not think that his motor vehicle had slowed much at the moment of impact because of the conditions and the late braking. 20 On a copy of exhibit 2, being the Google aerial photograph, the plaintiff marked the respective positions of the defendant's vehicle and his vehicle after the crash. He showed the prime mover of the defendant's vehicle as being on the crossover and the trailer with container as being diagonally across both of the lanes heading in a westerly direction. He showed the position of his vehicle being in the left-hand of those lanes. That copy became exhibit 2.1. 21 Under cross-examination the plaintiff agreed that he knew the area was an industrial area and that he regularly saw heavy motor vehicles in the area and similar to that driven by the defendant. He agreed there was a need for care because of the number of such motor vehicles and container trucks were 'all over the place'. He also agreed that on the day in question, it being dark and rainy, there was a need to take greater care. He also said that the lighting on that road had been bad for a long time. He said he was driving with his headlights on low beam. 22 Whilst there was some dispute as to whether it was raining heavily or drizzling, he said that it had rained about an hour before the accident when he started work and it was the first rain for some time. 23 He said that he first saw the smaller of the two vehicles in front - which incidentally was also a Sadleirs' vehicle - and the other motor vehicle when he came round the bend on Miles Road after leaving Kewdale Road. He said that he could see them from 200 to 300 m away. 24 He was asked if he saw brake lights on the Sadleirs' vehicle. He said he only saw the normal lights on; the brake lights did not appear to be on. He said he did not know where the other motor vehicle, that is the one driven by the defendant, was going and he could not see the indicators due to the Sadleirs' vehicle behind it. He said he did not see any indicators before the defendant's vehicle turned. 25 The plaintiff agreed that the defendant's vehicle was approximately 18 m long, the other Sadleirs' vehicle was approximately 5 m long and he saw the front wheel of the prime mover turn when he was a further 40 to 50 m behind. It was put to him that he was 60 to 70 m away when he first saw the wheel cross into his lane. He responded 'it's a fair whack back'. He agreed that that is when he applied his brakes heavily. 26 It was put to him that he did not in fact brake until he was level with the Sadleirs' vehicle. He disagreed and said 'I slid for quite a long way when I hit him, that is – you know, a plane – it was like a plane just ploughing straight into him'. He agreed that 63 to 73 m was a long way to be sliding but it was an estimate. 27 He was asked, having seen the wheel turn, whether he had seen the indicators on the wing mirror of the prime mover. He said he had not nor had he seen the flashing orange lights on top of the prime mover because they were obstructed by the container. 28 It was suggested to him that the point of impact with the container was more to where the letters 'LL' are in the company name TOLL. He was directed to the scuff marks on the side of the container shown in exhibit 3.2. He said that the defendant's vehicle was still turning as he hit it and was dragged along. 29 It was put to him that at the time he applied his brakes all six wheels the prime mover were on the driveway of the Toyota depot. He said that the back wheels of the prime mover were just on the roadway – half on the road half on the drive – 'they weren't fully in, they weren't fully out'. 30 Whilst he agreed that after the accident Mr Bietmann, who was in the other Sadleirs' vehicle, spoke to him, he did not recall making any comment to the effect that he did not see the defendant's vehicle.
The defendant 31 On the day in question, the defendant said he was delivering a container to the Toyota premises. He had picked up the container from National Rail, travelled along Fenton Street to Kewdale Road from whence he turned into Miles Road. 32 Both he and the plaintiff were asked to mark exhibit 1 with the position of the Toyota premises on Miles Road. There was a difference of opinion as to where it was. The defendant had it further east and closer to Kewdale Road then did the plaintiff. The defendant gave evidence about deliveries that he made in the area which he said he knew well and had been going to the Toyota depot once or twice a fortnight for 10 or 11 years. 33 He also agreed that at the time it was very dark and rainy. He described the lights that he had on. By reference to exhibit 3.1 he described lights above the front left mudguard, across the roof of the prime mover, on the external mirror, down the side of the trailer (at the front, middle and end) and across the back. There was also an orange and red sign on the back 'Do Not Overtake Turning Vehicle'. 34 On Miles Road he was in the right-hand lane. He could see lights behind him in that lane. He said that he may have got to 40 km per hour and started to brake. He stopped, he said, for about a minute, to allow the vehicle behind him to go round him. It did not do so and so he slowly commenced his turn. In doing the turn he said he was barely registering a speed; he was in low gear perhaps doing 2 km per hour. 35 He said that he had put his indicators on a couple of hundred metres from the driveway and they were on the whole time. 36 He first became aware of the plaintiff's motor vehicle when his prime mover was almost into or just into the Toyota driveway. He heard a loud bang. 37 He was also asked to depict on a copy of exhibit 2 where his vehicle and the trailer were at the point of impact. He drew the prime mover as being partly on the crossover and partly on the driveway with the trailer partly on the crossover and across the kerbside lane of the road and almost at right angles to it. That became exhibit 2.2. 38 By reference to exhibit 3.1 he said the damage to the trailer was below the letter 'O' in 'TOLL' but in cross-examination suggested it was under the first letter 'L'. Also in cross-examination by reference to exhibit 3.2 he demonstrated the area of scraping on the container caused by the collision. 39 Under cross-examination there was further examination about the precise position of the Toyota entrance. He was adamant that his evidence in chief was correct but in my view not a great deal turns on this. 40 He agreed that when he was 100 m from the turn he was well and truly slowing down. He took his foot off the accelerator and braked at the last 100 m or so. He had seen the other truck behind him at 300 m before he pulled up. It prevented him from seeing anything behind him in the same lane. 41 He again said that he stopped, hoping that the truck behind him would go round him so he could turn safely. It was put to him that he stayed there long enough to satisfy himself that the driver of the vehicle behind him was not going into the kerbside lane as he moved into it, a proposition with which he agreed. He was then questioned about how long he was stationary. When he was tested on his evidence - that it had been a minute - by reference to the clock in the courtroom he stopped the clock at 47 seconds. He said it was not less than that. 42 The mirrors on his prime mover extended beyond the width of the container and he could clearly see down the kerbside lane. Later in cross-examination he said that he was looking in the mirror for the whole time he was stationary. It was suggested to him that he did not look to see if there was anything in the kerbside lane. He denied that was the case. 43 Counsel questioned the defendant about the scrape marks to the container and suggested that he would have continued driving for a little while after the collision. The defendant did not think it would have been far. He suggested that the impact was enough to stop the truck, he did not have to put his brakes on but he did so instinctively. He said he had been travelling at about 2 km per hour – he was crawling. He did not want to drive faster, at a suggested 8 - 10 km per hour, because of the fear of knocking over the fence post. 44 He agreed that as a general proposition the middle lane, where he was, was not the best place from which to turn left but because the driveway turned back into the entry he had to do so. It would have been impossible to do the turn from the left lane. He did not want to straddle both lanes. He said he had to stay as far right as he could to make this turn. He said, by reference to exhibit 3.3, that the container was 2.5 m wide and with the wing mirrors the total width of the rig would have been 2.8 m. The driveway was approximately 6 m wide.
Willie Bietmann 45 Mr Bietmann was the driver of the other Sadleirs' vehicle. He was travelling to the Sadleirs' yard. He was driving in the right-hand lane after he had turned into Miles Road with the defendant's vehicle in front of him. He described the vehicle travelling slowly and he stayed behind it because he did not know if it was going to go left or right. 46 He then described the defendant putting on his blinkers to make a turn and he, Mr Bietmann, slowed down. 47 He described the defendant's vehicle as the semi-trailer, by which I understand him to mean the prime mover, as being on the verge and the container taking up both lanes at a 45-degree angle. 48 He said that whilst he was behind the container and the defendant was making his turn he saw headlights behind him. He turned to his left and saw the plaintiff's vehicle. He said at that moment the plaintiff hit the brakes hard and slid into the container. He thought that the plaintiff had braked between 30 and 40 feet at the most from the container, that is from when he saw it. Later he said that he knew that he had applied the brakes because he heard the wheels locking. At the time the plaintiff's vehicle went past him he said that the defendant's vehicle was in a position where the wheels of the prime mover were on the verge and the container was at a 45-degree angle but not having reached the verge. 49 After the collision he parked his vehicle and went to the plaintiff to see if he was all right. He said the plaintiff said words to the effect 'I never saw him'. When the defendant was questioned about that he did not recall any discussion. The plaintiff himself said he did not recall what he had said. 50 Under cross-examination he again said that he was travelling slowly behind the defendant's vehicle and braked. He was asked if the prime mover and container had stopped - he said he did not think so. It had not stopped for 5 - 10 seconds. He himself did not stop but was 'more or less rolling along'. The first time he saw the plaintiff's vehicle was when it was alongside him. It appeared to be skidding. He thought there was a chance that it would not hit the container if it had been dry conditions. 51 He described the defendant's vehicle as trying to do a normal turn – very, very slow because he had to get from the outside lane into the property. He did not think he would have been travelling at 10 km per hour. 52 As to the position of the prime mover after the accident he thought that the rear wheels were in the gutter. In re-examination, by reference to exhibit 2, he said that the front of the prime mover was on the white section which is the area that I have described as the crossover.
The pleadings 53 In his statement of claim the plaintiff alleges that he was driving his truck in the left side lane of Miles Road. The defendant was driving his truck in the right-hand lane with another truck following close behind also in the right lane. It is alleged 'as the plaintiff's truck was coming up alongside the defendant's truck the defendant attempted a left-hand turn into the path of the plaintiff's truck causing a collision'. 54 The particulars of negligence are pleaded as: (a) Failed to keep any or any proper lookout or to have any or any sufficient regard for other road users that might reasonably be expected to be in the area pleaded in par 2 above. (b) Proceeded to make a left-hand turn from the right-hand lane when it was not safe to do so. (c) Failed to stop, swerve, steer clear or otherwise manage or control his said vehicle so as to avoid crossing into the path of the plaintiff's vehicle. (d) Encroaching onto the path of the plaintiff's vehicle. (e) Driving in a manner that was having regard to all the circumstances dangerous. 55 In his defence, the defendant admits driving in Miles Road but otherwise denies the allegations made by the plaintiff. He expressly avers:- (a) the plaintiff was travelling in the right-hand lane behind the defendant and another truck; (b) his vehicle and the truck behind him slowed and the defendant commenced his left-hand manoeuvre. At this time the defendant looked into his mirror and confirmed that the left-hand lane was clear; (c) the truck immediately behind him had stopped altogether when the plaintiff attempted to overtake the second truck on the inside; (d) the plaintiff was travelling too close to the vehicle between himself and the defendant such that he could not see the defendant's left indicator; (e) the plaintiff overtook the defendant's vehicle on the inside when in all the circumstances it was manifestly unsafe to do so. 56 The defendant goes on to allege in par 5: 5. If, which is denied, the accident was caused by the defendant's negligence, the defendant says that the accident was caused or materially contributed to by the negligence of the plaintiff.
Particulars of Contributory Negligence
The Plaintiff was negligence in that he: (a) failed to observe the defendant's left turn indicator' (b) failed to keep a proper look out; (c) drove at a speed which was manifestly unsafe in the circumstances; (d) failed to brake or otherwise slow down when it was clear that the traffic ahead was slowing and/or had stopped; (e) failed to stop, steer or otherwise manoeuvre his motor vehicle so as to avoid a collision with the defendant; and (f) undertook the defendant's turning vehicle when it was manifestly unsafe to do so.
Plaintiff's submissions 57 The plaintiff's case comes down to whether or not the defendant ought to have seen the plaintiff's vehicle. It is submitted that the plaintiff was always in the left-hand lane and had reason to stay in that lane in order to make a turn later (into Bell Street). 58 The plaintiff submits that on the evidence of Mr Bietmann the brakes on the plaintiff's vehicle had been applied and some noise made prior to that vehicle coming alongside Mr Bietmann. 59 The plaintiff argues that the position of the damage on the container is important because it demonstrates that the defendant's vehicle was not so far into its turn as might be suggested by the defendant. It is said that the further into the turn the vehicle the more likely the plaintiff had the chance to observe it and to respond. Linked to this proposition, is the proposition that the defendant's vehicle moved some distance after the accident. 60 In support of these propositions the plaintiff relies upon the scrapes on the side of the container which it is submitted corroborates the plaintiff's contention that the vehicle was not far into the move when the accident occurred. 61 The plaintiff also argues that the defendant's estimate of his speed at 2 km per hour should not be accepted. It is said that the defendant's evidence was unsatisfactory in a number of respects but in particular in the placing of his vehicle further across the road and in respect of stopping before commencing the turn. 62 That last point is relevant to whether or not the defendant would have seen the plaintiff's vehicle in the left-hand lane. It is said that the defendant has tried to tailor his evidence so as to make it look good for him by saying that he had stopped, initially for a minute, but on testing in court for 47 seconds. It is said the defendant cannot be relied upon. 63 The plaintiff's submission is that the plaintiff's vehicle was there to be seen and it was not. The plaintiff was doing what he was entitled to do and travelling at around the speed limit and doing his best to avoid the accident. 64 If the plaintiff was contributory negligent, the plaintiff says that it could only be on the basis that he was travelling too fast in the rain. 65 It is said that the plaintiff acted as soon as he was practically able to determine if the turn was going to happen.
The defendant's submissions 66 The defendant argues that the plaintiff's evidence that he first saw the defendant's vehicle when he saw the front wheel turning should not be accepted. It is also said that his evidence of that occurring when he was 40 to 50 m behind Mr Bietmann's vehicle needs to be considered in the light of this other evidence which put him at about 60 to 70 m from the defendant's vehicle. Notwithstanding that distance the plaintiff still collided with the trailer being driven by the defendant. It is submitted that that version of events could not have occurred. 67 The defendant relies upon the evidence of Mr Bietmann to the effect that he saw the plaintiff's vehicle and heard the brakes go on when the plaintiff's vehicle was 30 to 40 feet (9 - 12 m) from the trailer when it drew alongside him. 68 The defendant said that the evidence opens up two possibilities; first is that the plaintiff was in fact in the centre lane and made a decision to go round the two vehicles in front of him and came alongside Mr Bietmann and then tried to stop and secondly, if he had truly been 60 or 70 m from the defendant's vehicle he would have been able to stop and see the lights of the vehicle which suggests that if he was in the left lane he was not paying attention. 69 The defendant also notes that in the pleadings the plaintiff asserted that as he came alongside the defendant's truck the defendant attempted a left-hand turn. That clearly has not been made out. 70 The defendant asserts that the plaintiff should fail entirely by reason of having failed to show that the defendant acted in making his turn without taking reasonable care. It is argued that the defendant had been observing Mr Bietmann's vehicle for 300 m on Miles Road by looking in his mirror, he had slowed down to 2 km per hour to allow Mr Bietmann's vehicle to come round him and then executed the turn (Mr Bietmann did not go round him) and it is said that in all respects he exercised the reasonable care the law demands of drivers of vehicles on the roadway. 71 It is submitted that the plaintiff was not paying proper attention and driving too fast in the conditions. 72 In the event that there is a finding of negligence against the defendant, the defendant argues that there should be an apportionment for contributory negligence with the apportionment being heavily against the plaintiff having regard to the relative culpability of the parties.
Principles and findings 73 Whilst the defendant has pleaded that the plaintiff was driving in the right-hand lane, counsel for the defendant argued in opening that the defendant's case does not stand or fall on that allegation. All the allegations of negligence had been denied and other allegations of fact had not been admitted. Counsel for the plaintiff did not contend otherwise. 74 The defendant having pleaded that the accident was caused or materially contributed to by the negligence of the plaintiff, it is appropriate to briefly review the legal principles relevant to matters of contributory negligence. Those principles are well known and can be stated quite shortly. 75 In Pennington v Norris (1956) 96 CLR 10, which was a case of the collision between a motor vehicle and a pedestrian, the High Court noted that what is required is that the court should arrive at a just and equitable apportionment as between the plaintiff and the defendant of the responsibility for the damage. The court went on to note that: … [i]t seems clear that this must of necessity involve a comparison of culpability. By 'culpability' we do not mean moral blameworthiness but a degree of departure from the standard of care of the reasonable man. To institute a comparison in respect of blameworthiness in such a case as the present seems more or less impracticable, because, while the defendant's negligence is a breach of duty owed to other persons and therefore blameworthy, the plaintiff's 'contributory' negligence is not a breach of any duty at all and it is difficult to impute 'moral' blame to one who is careless merely of his own safety. 76 In that case the court considered that what the plaintiff pedestrian did was not to look when crossing the road when a reasonably careful man would have looked. The court noted that his conduct did not endanger the defendant or anyone else and that was a material consideration. 77 In Podrebersek v Australian Iron & Steel Pty Ltd the court noted: … [t]he making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage. (citations omitted) 78 The court went on to say: … [i]t 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. 79 In Gorman v Scofield [2008] WASCA 78 [21] Buss JA, citing Owners of Steamship or Vessel 'British Fame' v Owners of Steamship or Vessel 'Macgregor' [1943] AC 197, said: A finding on a question of apportionment, as between a defendant who has been found to be negligent and the plaintiff who has been found to be guilty of contributory negligence, is finding upon a 'question, not a principal or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion as to which there may well be differences of opinion by different minds. 80 In the present case I make the following findings of fact in as much as there is little or no dispute in relation to them or the evidence has not been challenged: 1. At the material time it was dark and it was raining. The defendant said it was raining, Mr Bietmann said it was very wet and the plaintiff said it was drizzling. Whatever the situation the road would have been wet and there would have been some restriction on visibility; 2. The lighting in the area was poor; 3. The prime mover, complete with trailer and container was approximately 18.5 m long; 4. The defendant driving his vehicle was in the right-hand of the two lanes heading in a westerly direction intending to turn left into the Toyota driveway; 5. Immediately behind the defendant's vehicle and in the same lane was the motor vehicle driven by Mr Bietmann; 6. The plaintiff, at all times after entering Miles Road remained in the left lane with the intention of turning left into Bell Street; 7. The plaintiff was travelling on Miles Road at a speed of between 50 and 60 km per hour displaying his headlights on dipped beam. 81 I am satisfied that the defendant slowed down with a view to making the left turn into the driveway. Prior to making his turn I am satisfied that he had slowed to a very slow speed. Whether it was 2 km per hour or more, I am satisfied on the evidence of Mr Bietmann that it was not even 10 km per hour. He described the progress of the defendant's vehicle at that time as 'very, very slow'. 82 I am not satisfied that the defendant stopped his vehicle prior to making his turn for as long as contended by him, either in his evidence-in-chief, under cross-examination or at all. The evidence of Mr Bietmann was quite clear. He had been following the defendant's vehicle for some time. He did not think that the defendant had stopped and certainly not for 5 - 10 seconds. Given that Mr Bietmann remained in the right lane all the time behind the defendant's vehicle, if the defendant had stopped then it seems reasonable to assume that Mr Bietmann would have had to stop. He said he did not but kept rolling along. 83 Before commencing his turn, I am satisfied that the defendant did put his indicators on and this is supported by Mr Bietmann. I am also satisfied that he had other lights, as described by him, displayed on his vehicle. 84 Each of the witnesses gave a different account of where the defendant's vehicle finished up after the collision by reference to how far onto the crossover or into the drive it had progressed. Each of the witnesses was attempting to do his best on this assessment and it is not surprising that there were differences. Further, there were differences between the plaintiff and the defendant as to where the plaintiff's vehicle struck the trailer and container. In my view, little turns on these differences. This is because what is clear, and what is not in dispute, is that the plaintiff's vehicle struck the trailer and container whilst the plaintiff's vehicle was in the left lane and whilst that trailer and container was straddling that lane. Absent any expert reconstruction, it seems to me that it is of little assistance to try to resolve these issues. The damage to the container extended over an area of the container as described by the defendant but that may be a product of the fact that in all probability the defendant's vehicle was still moving at the point of collision and probably continued to move for a very short period thereafter. However I am satisfied that the vehicle was then moving very slowly in order to make the difficult turn into the driveway and would have been capable of being brought to a halt almost immediately after the collision. 85 Whilst I accept and find that before commencing his turn the defendant checked his wing mirror on the left, I am not satisfied that he continued to watch that mirror for as long as he said. For a start I have found that he was not stationary as he alleged and I am satisfied that once he started his turn the angle of the mirror would have changed and in all probability his ability to see down the left lane would have been restricted. 86 I am not satisfied on the plaintiff's evidence that the first indication that he had of the truck turning was observing the front wheel of the truck turning to the left. The plaintiff said he was able to see this part of the vehicle but not able to see any lights on the truck or indicators. In the conditions that prevailed at the time I find this to be highly improbable and this is particularly so when, under cross-examination he said that at that time he was a 'fair whack back', perhaps 60 or 70 m. 87 On seeing the truck turning the plaintiff applied his brakes and, because of the prevailing conditions, started to skid. I am unable to find precisely where he applied his brakes but I am satisfied by the time he passed Mr Bietmann's vehicle he was sliding. I suspect that Mr Bietmann's estimate of the distance of the plaintiff's vehicle from the defendant's vehicle as it passed Mr Bietmann at 30 to 40 feet (9 - 12 m) is an underestimation. I reach this conclusion because the prime mover and trailer combined were 18.5 m long and Mr Bietmann, whilst close, was some distance behind that. 88 Notwithstanding the conditions on the day in question, in my view, and I so find, there was no reason for the defendant not to see the plaintiff's vehicle in the left lane on checking his mirror and before commencing his turn. I have noted that the straight stretch of Miles Road is approximately 1 km long. I accept the defendant's evidence as to where the Toyota entrance was. He was very familiar with the area and had made numerous visits to these premises in the past. 89 The defendant's placement of the Toyota premises is, on exhibit 1, approximately two-thirds of the way along that straight section of road heading in a westerly direction. In other words, approximately 600 m from the left-hand bend. There is no suggestion that the defendant commenced his turn as soon as the plaintiff had come round the bend on to the straight section. The plaintiff's evidence was that he was 60 or 70 m from the defendant's vehicle when it commenced its turn. I have expressed some doubts as to the accuracy of that but I am satisfied that the plaintiff had driven his vehicle for a distance along Miles Road prior to the defendant commencing his left turn. 90 In the circumstances, I am satisfied and find that if the defendant had kept a proper lookout and checked his mirrors he would have seen the plaintiff's vehicle. The defendant was undertaking a manoeuvre which required him to act with special care given that he was crossing from the right lane and across the left lane to enter the driveway. I am satisfied that that manoeuvre was required and that he could not have entered the driveway from the left-hand lane by reason of its juxtaposition with the road. Nevertheless the manoeuvre was fraught with difficulty and the risk of danger to other road users which required that especial care to which I have referred. 91 I find that the defendant was not keeping a proper lookout whilst performing this complex and difficult turning manoeuvre. That being the case I am satisfied that the allegation of negligence set out in par 5(a) of the statement of claim is made out. I am also satisfied that given the conditions that existed on the day the defendant did proceed to make that turn when it was not safe to do so. I make that finding as a corollary to my finding that there is no reason why the defendant should not have seen the plaintiff's vehicle in the left-hand lane. 92 In the circumstances I find that the defendant was negligent and that negligence was a cause of the collision and the plaintiff's injuries. 93 That is not the end of the matter however. It is not necessary for me to express again the conditions that existed at the time. They were conditions that required care on the part of the plaintiff for his own safety. 94 In his evidence-in-chief the plaintiff said that it was wet and slippery. He said that it was the first rain that they had had for a while. I take that to be an indication in the mind of the plaintiff that after such rain, following a dry period, roads become more slippery. 95 Within that context the plaintiff was also aware that there was poor lighting in the area and was also aware that the area was one where there were often large trucks making turns into the various industrial premises along the road. 96 If I accept the plaintiff's evidence that he saw the truck turning, that is to say saw the front wheel of the truck turning, from a 'fair whack back' and if that is a reference to 60 to 70 m then, if travelling at a speed appropriate to the circumstances and keeping a proper lookout the plaintiff ought to have been able to have pulled up in time. However, as I have found previously I am not satisfied that the plaintiff would have seen the wheel and not see on the other lights on the defendant's vehicle. 97 I find that the plaintiff was not keeping a proper lookout so as to be able to appreciate at an earlier point the manoeuvre being undertaken by the defendant. I also find that given all the circumstances the plaintiff was driving too fast, albeit that he was still - presumably because I have no evidence of the speed limit - under the speed limit. 98 Whilst Mr Bietmann gave some evidence of what the plaintiff said after the collision, namely 'I never saw him', I cannot give too much weight to this statement. Having made my findings as to where the plaintiff did make his observation and his reaction to it, it seems to me that the words attributed to the plaintiff are somewhat equivocal. Such a statement taken on its own might mean that he never saw the vehicle or, more probably, that he did not see it until it was too late. He certainly did see the vehicle because he reacted to seeing it by braking. It is not clear from the limited words used whether the reason for seeing it 'too late' was because he was not keeping a lookout or because the defendant suddenly turned in front of him. 99 I am satisfied that it is his combination of speed in those circumstances that existed and his failure to keep a lookout and to be able to react sooner than he did which caused the plaintiff not to be able to brake without skidding and not be able to stop in time or at least reduce the force of the impact. 100 Accordingly, I am satisfied that the particulars of contributory negligence set out in pars 5(a) to (d) of the defence have been made out.
Apportionment 101 Having noted the principles to be applied it is now necessary for me to try to establish the respective share of responsibility for the damage by considering and comparing the culpability of each of the plaintiff and defendant: Pennington. 102 Unlike the facts in Pennington where it was found that the conduct of the pedestrian did not endanger the defendant or anybody else and which was a material consideration, in the present case that is not the case. The plaintiff's driving did constitute such a risk. I hasten to add that in making that finding I do not seek to impose a duty of care upon the plaintiff such as that which is under consideration in relation to the defendant's conduct, but as the degree of departure from the standard of care of the reasonable man, that is to say for his own safety. 103 In Gorman's case the facts were not dissimilar to the present case. In that case the defendant was crossing Canning Highway in her car – a four-lane thoroughfare with two lanes of travel in each direction. The defendant had driven across the two southbound lanes to get to the northbound lanes. She stopped her vehicle when it was straddling the centre or inner southbound lane and the median strip. Whilst in that position, her vehicle was struck by a motorcycle driven by the plaintiff which had been travelling at 90 to 100 km per hour. The plaintiff was injured. In an action for damages, at first instance, liability was apportioned by reducing the amount awarded as damages by 50% for contributory negligence. 104 The trial judge found that, if the plaintiff had been travelling at the speed limit, he would have had sufficient time to slow down and stop before the collision or at least reduce the impact of the collision to a minor one. 105 The defendant appealed. In allowing the appeal the Court of Appeal concluded that the plaintiff was more culpable than the defendant and his negligent conduct was more significant in causing the damage which occurred as a result of the collision. In that case the court found that the apportionment of liability equally between the parties was outside the range of sound exercise of discretionary judgement. The plaintiff's damages were reduced by 65% for contributory negligence. 106 That case can be distinguished from the present in as much as there was a finding that the plaintiff at all material times drove at a significantly excessive speed on a busy highway and did not reduce his speed until he braked heavily immediately before the collision. He should have been driving at the speed limit. When he first saw the defendant's vehicle he should have immediately reduced his speed and kept a proper lookout which he did not do. He was unable to stop because of not taking evasive action by reason of his excessive speed. Buss JA characterised the plaintiff's driving as reckless as opposed to that of the defendant as being negligent. 107 In the present case I cannot make that distinction. In my view both were negligent for the reasons I have expressed. In those circumstances, in my opinion, an appropriate reduction for contributory negligence would be 50%.
Conclusion 108 I find that the defendant was negligent but that the plaintiff's damages should be reduced by 50% for his contributory negligence.
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