Cachia v Howard
[2002] TASSC 112
•6 December 2002
[2002] TASSC 112
CITATION: Cachia v Howard [2002] TASSC 112
PARTIES: CACHIA, Leno
v
HOWARD, Ian Andrew
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 1231/1998
DELIVERED ON: 6 December 2002
DELIVERED AT: Hobart
HEARING DATE: 11,12, 15, 16 April 2002, 30 May 2002
JUDGMENT OF: Evans J
CATCHWORDS:
Torts - Negligence - Contributory negligence - Apportionment of responsibility and damages - Relevance of all conduct in relation to accident - Manoeuvrability of vehicle relevant.
Wrongs Act 1959 (Tas), s4(1).
Pennington v Norris (1956) 96 CLR 10; Smith v McIntyre [1958] Tas SR 36, applied.
Aust Dig Torts [70]
REPRESENTATION:
Counsel:
Plaintiff: P B Jens
Defendant: K B Procter SC
Solicitors:
Plaintiff: Page Seager
Defendant: Murdoch Clarke
Judgment Number: [2002] TASSC 112
Number of paragraphs: 25
Serial No 112/2002
File No 1231/1998
LENO CACHIA v IAN ANDREW HOWARD
REASONS FOR JUDGMENT EVANS J
6 December 2002
The plaintiff sues the defendant for damages for personal injuries suffered by the plaintiff in an accident between a Harley-Davidson Fat Boy motor bike ridden by the plaintiff and a 40 foot Denning Coach driven by the defendant. The accident occurred at around 3.20pm on 4 January 1998 on the Tasman Highway about 7 kilometres west of St Helens. The question of liability has been tried as a preliminary issue.
At the time of the accident, the plaintiff was travelling west from St Helens towards Launceston and the bus was travelling in the opposite direction. The orientation of the highway where the collision occurred is approximately west to east. The first contact between the vehicles was made between the right hand tip of the handle bar of the bike and the right side of the bus at a point slightly to the rear of its front right wheel arch. The bike then passed along the side of the bus, collided with the outer of its dual rear wheels, and cannoned off, coming to rest on the southern verge of the highway.
Following the accident, the bus had a black stripe along its right side approximately parallel with the ground. The stripe was roughly .9 metre above the road level, which is about the height of the bike's handle bars. I conclude that this mark was caused by the end of the handle bar dragging along the side of the bus. When the bike's handle bar connected with the bus, it is likely that the bike's front wheel was forced to turn right, bringing the front tyre of the bike into contact with the side of the bus. In that event, it is also likely that marks would be left along the side of the bus at about the height where the tyre was forced into contact with it. Black marks, consistent with this having occurred, were left along the side of the bus. I accordingly conclude that the bike slid along the side of the bus in the manner I have just canvassed. I also conclude that it was the front wheel of the bike that first came into contact with the outer rear bus wheel. I do so because:
· in the ordinary course, first contact would be made with the front wheel of the bike and there is nothing to establish that the first contact was made with any other portion of the bike; and
· damage to the front wheel of the bike and the front forks of the bike is consistent with this having occurred.
The collision between the bike and the bus wheel drove a substantial V-shaped wedge into the rim of the bus wheel.
For a considerable distance on either side of the accident scene, the Tasman Highway traverses hilly terrain. There are numerous bends and undulations in the highway. It has been developed largely along the lines of previous tracks and does not appear to have been systematically designed. The two expert witnesses who gave oral evidence were in agreement that the alignment of the highway includes features which would be avoided in the design of a modern highway. Some of these features are relevant to the accident. As the plaintiff approached the point of collision, he entered a sweeping left hand bend, passed over a small crest, and down a 3 degree gradient in the highway to a straight section of road about 30 metres long. The collision occurred on that straight section of road, which leads to a sweeping right hand curve. The defendant approached the point of collision through that curve, a sweeping left hand curve for him.
The bend which the plaintiff passed through immediately before the collision is a compound bend, that is, it does not have a consistent radius. From the direction in which the plaintiff was travelling, the radius of the bend reduced as he moved through the bend. It was accordingly necessary for him to increase the rate at which he turned in order to negotiate the bend without being carried to his right. It was not until he passed over the crest in the road that he would have been able to properly assess the need to increase the rate at which he was turning.
Natural features in the vicinity of the collision, coupled with the bend and the crest in the road, restricted the view ahead of both the plaintiff and the defendant. William Keramidas, an engineer who examined the site on 18 March 2001, calculated that until the vehicles were within 80 metres of each other, neither driver would have been able to see the other vehicle approaching. I accept his calculation as a rough indication of that distance.
In the vicinity of the collision, the road has a spray sealed bitumen surface and is divided by unbroken double white lines. Peter Hoban, an engineer who surveyed the scene two years after the accident, reported that the width of the road was nominally 5.5 metres and the width of the blank centre line between the dual painted centre lines was nominally 100 millimetres. I conclude from the latter, and from my observations of photographs of the scene, that the width of the area occupied by the dual centre lines is 300 millimetres. Assuming, as I do, that the dual centre lines are located in the centre of the road, the width of each lane, excluding any portion of the dual centre lines, is, on the evidence of Mr Hoban, 2.6 metres.
Mr B J Hutchings, an engineer who surveyed the width of the road, recorded that the lane in which the bus was travelling was 2.8 metres wide. He did not give oral evidence. I assume he calculated the width of the lane from the edge of the bitumen to the imaginary centre of the road. Accordingly, the width of the lane to the edge of the nearest painted centre line is, on his calculation, 2.65 metres. Mr Keramidas said that the road width from edge to edge varied between 5.7 metres and 6 metres. Counsel addressed on the basis that it was agreed that the width of the lanes was about 2.7 metres. It was not specified whether this was the distance from the edge of the road to its imaginary centre line, or to the edge of the nearest painted white centre line. From the evidence I conclude it to be the latter.
The speed limit governing the highway in the vicinity of the accident is 100 kilometres per hour. There is not a significant divergence between the various estimates given of the speed at which the bus was travelling when the collision occurred. I am satisfied that its speed was about 85 kilometres per hour. The plaintiff estimates the speed of his bike at between 70 kilometres per hour and 85 kilometres per hour. John Cutting, the driver of a vehicle which was following the bus, estimates the speed of the bike at 90 kilometres per hour. Dawn Burley, a passenger in the bus, described the bike as travelling rather fast and the defendant, in answer to an interrogatory, said that the bike was travelling fast. I am satisfied that the speed of the bike at the point of collision was about 85 kilometres per hour.
The plaintiff has a limited recall of what occurred. He said that as he entered the left hand bend, his bike was in the middle of the left hand lane. He recalled leaning into the bend and looking up to see the front of the bus coming towards him. In answer to an interrogatory, he estimated his distance from the bus when he first saw it at 10 metres. In evidence, he estimated that distance as being equal to the distance between him and the court wall opposite him, a distance of 9 metres. He said that when he saw the bus, its driver's side front wheel was clearly on the wrong side of the double white lines. In answer to an interrogatory, he said the wheel was between .5 and 1 metre over the centre of the road. He said he had no recall of what occurred after he first saw the bus.
John Cutting, an officer with the Country Fire Authority of Victoria, witnessed the accident. He and his wife were touring in Tasmania. On the day of the accident, Mr Cutting was driving from Launceston to St Helens on the Tasman Highway. At Pyengana, he came upon the bus and followed it for about 15 kilometres before the collision occurred. He did not pass the bus as there was no opportunity for him to do so. He said the accident occurred as the bus entered what was for it a right hand bend at the end of a short, straight section of road; and that as the bus travelled along that straight section of road it was over the dual centre white line. Immediately prior to the collision, Mr Cutting saw the motor bike travelling in the opposite direction to the bus. At that time, Mr Cutting says that the front right hand wheel of the bus was obscuring the centre lines, it was either on or slightly over them, and the right rear dual wheels of the bus where about .5 metre over the lines. Mr Cutting says the bike was travelling within its lane, but the relative positions of the bus and the bike on the road caused him concern and he exclaimed, "Shit". He saw the bike strike the right hand side of the bus and slide along it in a reasonably upright position until the front of the bike collided with the right rear wheel of the bus. The bike then bounced off the back of the bus into a culvert to Mr Cutting's right.
Kim Cutting, Mr Cutting's wife, was travelling in the front passenger seat of their vehicle. She said about 30 seconds before her attention was drawn to the occurrence of the accident by her husband exclaiming, "Shit", she noted that the back wheels of the bus were over the double white lines in the centre of the road. She did not see the bike before the accident and did not see the collision.
The defendant says that as he approached the point of collision, the bus was travelling on the correct side of the road, and he was shocked to see the bike come over the brow of the hill towards him on the incorrect side of the road. In answer to an interrogatory, he estimated his distance from the bike when he first saw it at roughly 20 feet - 30 feet. In evidence he estimated that distance as being equal to the distance from the witness box to the end of the court, a distance of 16 metres. The defendant said that when he first saw the bike he thought it was going to plough head on into the bus; so he took evasive action but within seconds felt a bump. He then looked in the rear vision mirror and saw the bike bounce off the rear wheel of the bus and spear across to the side of the roadway.
Dawn Burley, a passenger in the bus, said that she looked up to see the bike coming towards the bus rather fast; at that time the bus was on the correct side of the road and the bike was slightly over the white line. She said her immediate thought was, "I hope he's going to straighten up before he hits us."
The preliminary view I reached on the evidence of these witnesses was that both vehicles were encroaching on the double white lines when the collision occurred. No witness impressed me as being so reliable or credit worthy as to justify my accepting his or her evidence over contrary evidence from other witnesses. That preliminary view finds some support in the evidence of an admission made by the plaintiff. Dale Richards, who attended the scene to tow away the bike, was present as the bike was being lifted clear of the plaintiff and overheard the plaintiff speaking about what had occurred. Mr Richards said he heard the plaintiff say: "That he was going a bit fast; and not to go crook at the bus driver because the accident virtually happened on the white line." Although Mr Richards was not asked to recall anything that he had heard the plaintiff say until about nine months subsequent to the accident, I accept his evidence as being a reliable recall of the gist of what the plaintiff said.
The plaintiff has estimated his distance from the bus when he first saw it at about 10 metres. The defendant's estimates of his distance from the bike when he first saw it range from about 6.5 metres to about 16 metres. I consider that the urgency of the situation which confronted each party when he first saw the other vehicle approaching has caused each party to under estimate the distance that separated them. Even allowing for their under estimations, as their closing speed was about 170 kilometres per hour, neither party would have had time to react so as to effectively reduce the peril of their situation.
Examinations of the scene following the accident establish the presence of several gouge marks on the road about 10 metres from where the bike came to rest. I am satisfied that the marks were caused by the accident. The most significant mark is a gouge about .8 metres in length along the southern side of the most northern centre white line, that is, the line nearest to the bus's lane. At its western end, that gouge mark suddenly diverts to the south west at an angle of about 30 degrees in the direction of the bike's resting place. Photographs taken of the gouge mark on the day of the accident show black smudges in its vicinity which are consistent with tyre marks. This suggests that the gouge mark was made when the front bike tyre came into contact with the rear tyre of the bus and the deviation in the gouge is consistent with the bike ricocheting from the side of the bus following that impact. It is conceivable that the mark was made when the bike hit the ground after ricocheting from the side of the bus. This was suggested by Mr Cutting and it is a hypothesis which is supported by Mr Keramidas. I reject the suggestion. I consider it likely that the deviation in the gouge was caused by the forces generated by the impact, and I consider it unlikely that it would have been caused by a change of direction in the bike after it had disengaged from the bus.
I am satisfied that the gouge mark indicates the point of impact between the bike and the rear wheel of the bus. The position of the vehicles when they first made contact would have been about 3 metres east of the gouge. Primarily because of the location of the gouge mark, I consider it probable that when first contact was made between the vehicles, the wheels on the right hand side of the bus were over the white line nearest to the bus's side of the road and the right hand end of the bike's handle bar was extending over the white line nearest its side of the road.
As the bus and the bike were both encroaching on the dual centre lines when first contact was made, I am satisfied that the damage caused is the result partly of the wrongful act of each party. Accordingly, liability must be apportioned as is just and equitable having regard to each party's share in responsibility for the damage, the Wrongs Act 1959, s4(1). In my consideration of the apportionment that is appropriate, I have in mind the law as expounded in Pennington v Norris (1956) 96 CLR 10 and Smith v McIntyre [1958] Tas SR 36.
As already explained, I am satisfied that neither party had an opportunity of seeing the other until the vehicles were about 80 metres apart. Accepting, as I do, that each party has under estimated his distance from the approaching vehicle when he first saw it, I am, in any event, satisfied that neither party saw the vehicle approaching him as soon as it was possible to do so. Nevertheless, I do not consider that this contributed to the occurrence of the accident, as I am satisfied that neither party would have been able to achieve any effective remedial action in the time available, bearing in mind that their closing speed was 170 kilometres per hour. I do, however, consider that the parties' failure to keep a proper lookout contributed to the accident in that they failed to appreciate the need to drive more slowly along the portion of the road where the accident occurred.
The bus was 2.44 metres wide. When travelling in the centre of its 2.7 metre wide lane, it would have been no more than 13 centimetres from the nearest centre line. In such a tight situation, considerable care had to be taken to drive the bus at a speed and in a manner which ensured that it remained within its lane. It was to be anticipated that oncoming vehicles, such as buses and trucks, would also need to occupy virtually all the space available in the oncoming lane. The defendant acknowledged in his evidence that earlier in the trip, as he drove into Pyengana, he came upon a large truck at quite a bad corner and that the vehicles had to inch past each other very slowly. At the time of the accident, the defendant's view of the road ahead was limited. He could not be confident that in the time available to him he would be able to manoeuvre the bus wholly into its lane if that became necessary. In the circumstances, it was incumbent upon the defendant to ensure that the bus was wholly within its lane.
The widest point of the bike is its handle bar which is .8 metre wide. Accepting, as I do, that as the bike approached the left hand bend which preceded the collision, the bike was travelling in the centre of its lane, there was a little less than 1 metre clear on each side of the bike. The plaintiff was not familiar with the relevant portion of the Tasman Highway. He had not previously travelled along it. I am satisfied that as the bike past through the bend, the unanticipated tightening of the bend propelled the bike to its right to a point where it encroached upon the centre line. This could have been avoided had the plaintiff kept a better look out and anticipated the sort of circumstances that eventuated, or had he been riding at a slower speed which allowed him time to increase the bike's turn.
I do not consider that it was negligent of the plaintiff to travel in the centre of the lane. Generally that is the safest place to be; the side of the road can provide as many unexpected dangers, if not more, than the centre of the road. At a time when no obstructions or dangers were in view, the prudent place to position the bike was in the centre of its lane.
On balance, I consider that the defendant should bear more responsibility for the accident than the plaintiff. The defendant must have been well aware of the difficulty of keeping the bus within its lane and should have been alert to ensure that that result was achieved. There was nothing about the portion of the road over which the bus travelled immediately prior to the collision which may have unexpectedly caused the bus to encroach on the dual centre line. Whilst the plaintiff was obliged to keep his bike within its lane, he had less reason than the defendant to give scrupulous attention to the position of his bike within its lane. The bike is much more manoeuvrable than the bus. The plaintiff had reason to think that he would be able to keep his bike within its lane at the speed at which he was travelling. The encroachment of the bike on to the dual centre lines can in part be explained by the plaintiff's failure to anticipate the composite bend.
I apportion liability 40 per cent against the plaintiff and 60 per cent against the defendant.
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