Conboy v Williams
[2009] TASSC 53
•29 July 2009
[2009] TASSC 53
CITATION: Conboy v Williams [2009] TASSC 53
PARTIES: CONBOY, Matthew Peter
v
WILLIAMS, Brett Edward
TITLE OF COURT: SUPREME COURT OF TASMANIA
FILE NO/S: 388/2005
DELIVERED ON: 29 July 2009
DELIVERED AT: Hobart
HEARING DATE: 24 July 2009
JUDGMENT OF: Holt AsJ
CATCHWORDS:
Torts – Negligence – Road accident cases – Liability of drivers of vehicles – Intersections and junctions – Overtaking at junction.
Aust Dig Torts [91]
REPRESENTATION:
Counsel:
Plaintiff: A R Mills
Defendant: In person
Solicitors:
Plaintiff: Dobson Mitchell & Allport
Defendant: In Person
Judgment Number: [2009] TASSC 53
Number of paragraphs: 18
Serial No 53/2009
File No 388/2005
CONBOY v WILLIAMS
REASONS FOR JUDGMENT HOLT AsJ
29 July 2009
This is an action for damages for injury to property occasioned in a motor vehicle accident. An order has been made under r962(2)(a) authorising me to hear and determine the action.
It was a two car collision and both vehicles were damaged. At the hearing the defendant abandoned his counterclaim, but maintained his plea that the accident was caused by or contributed to by the negligence of the plaintiff.
The accident occurred just before 5 pm on Wednesday, 20 April 2005, on the Channel Highway about 2 kms south of Snug. Both the plaintiff and the defendant were travelling south towards Kettering. The collision occurred at the junction of the Channel Highway with Powers Road. The plaintiff was in the process of overtaking the defendant and the defendant was in the process of turning right into Powers Road. The plaintiff was travelling to the ferry terminal at Kettering and the defendant was returning home to Eggs and Bacon Bay. The plaintiff was driving his 2002 Landrover and towing a trailer owned by him containing topsoil. The defendant was driving his 1974 Toyota utility. The defendant's right-hand indicator was not working. Earlier in the day he had received a vehicle defect notice. The notice listed the defects as "Ineffective indicators" and "Ineffective brake/tail lights". The notice said that the defects were "Self Clearing Minor Defects", gave seven days to repair them and did not prohibit use of the vehicle in the meantime.
These were the road conditions. There was one lane in each direction with the lanes separated by a single broken white line. There was no street or driveway opposite the junction. On the left-hand side of the Channel Highway there was a string of guide posts; a narrow gravel verge leading to a spoon drain and above the drain was an embankment. The speed limit was 100 kms per hour. It was daylight, the weather was fine and there were no oncoming vehicles.
The plaintiff's particulars of negligence included an allegation that the defendant made a right-hand turn when it was unsafe to do so. The defendant's particulars of contributory negligence included an allegation that the plaintiff attempted to overtake when it was unsafe to do so. Only the plaintiff and the defendant gave evidence.
The version of events given by the plaintiff in his evidence in chief was as follows. He was travelling at a speed of approximately 80 kms per hour. He first saw the defendant's vehicle when the plaintiff was about 600 metres short of Powers Road. The defendant's vehicle was about 500 metres ahead of him. He caught up. He said he followed the defendant "closely for approximately 100 metres … I saw Mr Williams' indicator come on to turn left and I then proceed to overtake". He said he saw the defendant's car move to the left. He thought that the defendant was intending to pull off the road. He was almost opposite the defendant's vehicle when the front corner of the defendant's vehicle first entered the northbound lane. He veered to the right but the cars collided and both went through a crash barrier on the right-hand side of the road and down into a gully. The drivers had a conversation shortly after the accident in which the plaintiff said that the defendant had indicated to turn left and the defendant replied "I have just been given a ticket because my indicators are up shit creek".
The defendant's evidence was as follows. He said that at a distance of about 600 metres from Powers Road he saw an acquaintance driving in the opposite direction. The acquaintance pulled over to the side of the road and it was the defendant's intention to turn his vehicle around and go back and have a conversation. There was a driveway on the right-hand side of the road which he could have turned into, but he would have had to brake hard to undertake the manoeuvre. He decided to go ahead to the junction of Powers Road and turn there. As he neared Powers Road he pushed his indicator lever to operate his right-hand indicators. He said that this was just a reflex action and he was aware from what had happened earlier in the day, that his right-hand indicator was not working. He slowed to about 40 kms per hour and looked in his right-hand rear vision mirror. He saw no other vehicles and commenced to turn right into Powers Road with the intention of undertaking a three point turn in that road. He did not indicate to pull off the road to the left and did not steer his vehicle towards the gravel verge on the left. He did not see the plaintiff's vehicle prior to impact.
I have no hesitation in finding that the defendant was at fault. He intended turning right. There was a car approaching from behind. His right-hand indicator did not work. He should have seen the approaching vehicle and deferred making the right-hand turn until after the approaching vehicle had overtaken him or until he knew that the approaching vehicle would not attempt to pass.
Was the plaintiff also at fault? The question of whether or not the defendant's left-hand indicator lights were activated and whether he was moving to the left is of critical importance. If this is what happened I would not find any fault in the plaintiff attempting to overtake. If on the other hand there was no indication of any intention by the defendant to pull off the road to the left, the possibility that the defendant might turn right should have been anticipated and the overtaking manoeuvre recognised as dangerous and not carried out at that time.
Counsel for the plaintiff submitted that I should accept him as a reliable witness. It was contended that the likelihood was that the defendant was moving to the left ready to perform a U-turn, taking advantage of the extra width of bitumen provided by the junction. Counsel said that a possible explanation for the left-hand indicator being activated was that there might have been a fault in the wiring so that when the indicator switch was operated for a right-hand turn the left-hand indicator lights were activated.
The defendant's intention was to turn to the right. He had no reason to put on his left-hand indicator lights. The suggestion of a crossed wire was purely speculative. There was no evidence to show that this was even possible. The police had checked the defendant's indicators earlier in the day. If the defect was that when the switch was put to the right-hand turn position the left-hand lights flashed, I would think it to be unlikely that the inspecting officer would have categorised the defects as "Self Clearing Minor Defects" and allowed the vehicle to continue to be driven.
I do not accept the plaintiff's evidence as to the sequence of events as being reliable. For example, he said that he followed the defendant closely for 100 metres prior to attempting to overtake. Under cross-examination he agreed that this was not the case. He had closed the gap from the defendant's vehicle by 500 metres in the space of 600 metres. He gave no evidence of slowing down behind the defendant prior to commencing the overtaking manoeuvre.
I reject the plaintiff's evidence that the defendant's left-hand indicator lights were activated.
The plaintiff was rapidly closing in on a slow moving vehicle in the vicinity of a right-hand road junction. Even though there was no right-hand turn indication, the possibility that the vehicle would turn right was predictable. The plaintiff did not suggest that the junction was not clearly visible to him. He did not suggest that he did not see it prior to commencing to overtake. He was towing a trailer containing a cubic metre of top soil. This would have affected the braking capacity of the vehicle. In other words, the plaintiff's ability to abort the overtaking manoeuvre by rapid braking, should the need have arisen, was compromised. The plaintiff should not have attempted to overtake the defendant where he did. The manoeuvre was dangerous.
Section 4(1) of the Wrongs Act 1954, relevantly provides:
"Where a person suffers damage as the result partly of that person's wrongful act and partly of the wrongful act of any other person … the damages recoverable … shall be reduced to such extent up to 100% as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage; …"
The defendant knew that his right-hand indicator was not working. He should have seen the approach of the plaintiff's vehicle and the commencement of the overtaking manoeuvre. Had he observed the plaintiff commence to overtake he could and should have abandoned the turn. The plaintiff decided to overtake in circumstances where it was unsafe to do so. Having regard to the plaintiff's share in the responsibility for the accident I consider it to be just and equitable to reduce the damages recoverable by 40%.
As to quantum there was the unchallenged affidavit evidence of a loss assessor. The assessor put the pre-accident value of the plaintiff's vehicle at $35,100. He estimated the cost of repairs as being likely to exceed the value of the vehicle. The wreck was sold at auction for $10,500. There was an auctioneer's fee of $195, a towing fee of $560 and the police report fee of $35. The assessor arranged for the repair of the plaintiff's trailer at a cost of $700. The total produced is $26,090. The defendant did not challenge the assessor's expertise, his assessment, his calculations nor the reasonableness of the expenses claimed. I assess the plaintiff's damages in the sum of $26,090. 60% of this, rounded off, is $15,650.
Judgment will be given for the plaintiff in the sum of $15,650 for damages.
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