Davidson v Motor Accidents Insurance Board

[1989] TASSC 130

Serial No B52/1989
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Davidson v Motor Accidents Insurance Board [1989] TASSC 130; B52/1989

PARTIES:  DAVIDSON, Thomas William
  v
  MOTOR ACCIDENTS INSURANCE BOARD

FILE NO:  385/1986
DELIVERED ON:  4 December 1989
JUDGMENT OF:  Underwood J

Judgment Number:  B52/1989
Number of paragraphs:  27

Serial No B52/1989
File No 385/1986

THOMAS WILLIAM DAVIDSON v MOTOR ACCIDENTS INSURANCE BOARD

REASONS FOR JUDGMENT  UNDERWOOD J

4 December 1989

1. At about midnight or very shortly thereafter on 30 April 1986, the plaintiff collided with an HEC pole whilst driving his utility uphill in a southerly direction along Salisbury Crescent, Launceston. He claimed that an oncoming car with very bright headlights pulled out from behind a car or cars parked on its side of the road about opposite the pole. The plaintiff's case was that this car encroached onto his side of the road and forced him to pull left to avoid a collision. The plaintiff's car then mounted the footpath and hit the pole. The identity of the oncoming vehicle has not been established and these proceedings are brought against the Motor Accidents Insurance Board to recover damages for injuries caused by the accident.

1. The defendant conceded that there had been reasonable enquiry and search within the meaning of the Motor Accidents (Liabilities & Compensation) Act 1973, s.16(1) (b). Accordingly, the issues at trial were:—

1         Was there an unidentified vehicle at all?

2         If yes, was its driver negligent?

3         If yes, was the plaintiff guilty of contributory negligence?

4         The quantum of damage.

1. Salisbury Crescent is a narrow, fairly steep, winding road running in a general north–south direction. At the point of the collision it is only about 22 feet wide. The pole with which the plaintiff's vehicle collided was erected only about six inches in from the edge of the kerb on a narrow strip of dirt which might loosely be called a footpath. The road is straight for distance of approximately 100 metres north of the point of impact and approximately  25 metres south of the point of impact. Travelling south (the direction taken by the plaintiff) the road then curves gradually to the right over a distance of about 75 metres until it forms a junction with Ashleigh Avenue. At this point, Salisbury Crescent turns back over 100 degrees and leads uphill in a general north–westerly direction. Ashleigh Avenue turns slightly away to the left and heads in a general south–easterly direction. The junction is wide and was referred to in the evidence as " the top of Salisbury Crescent". The weather conditions at the time of the accident were fine and the road surface was dry.

1. The plaintiff, aged 46, was and is married and at the time of the accident was employed as a full time casual steward by the Northern Tasmanian Tennis Association Inc. He had been so employed since 1983. At the time of the accident he was regularly working five days a week. Every Sunday and every alternate Tuesday and Thursday were his rostered days off. However, there was an informal arrangement between the plaintiff and the other steward employed by the Association that when it was convenient to both of them, they would arrange their days off to suit themselves. The plaintiff never started work until after lunch–time. His starting times varied. Except on rare occasions, he did not work past 10pm, at which time the bar was closed.

1. The plaintiff gave the following account in evidence–in–chief. He said that on Tuesday 29 April 1986 he started work at 3pm and shut the bar at about 10pm Apart from a relatively busy period between 4.30pm and 7pm, the bar was reasonably quiet. Between about 6pm and 10pm he consumed "in the vicinity of a dozen six–ounce glasses of beer". He stopped serving about 10.10pm and shut down the bar. This involved cleaning up, shutting the beer off, counting the till and locking away the money. He then left to drive to his home in Cambridge Street. The plaintiff said that when he got to David Street he realized that he had left his wallet behind and, as he was off duty the following day (Wednesday), he decided to return for it. On his return he found his wallet without difficulty, but then decided to tap another barrel for the next day and put some stock away "that had accumulated around the store–room". The plaintiff said that this took him about an hour and that he then left to go home, a journey which at that time of the night he estimated took between 10–15 minutes.

1. The plaintiff said that he was travelling to Salisbury Crescent in top gear at about 50 kilometres per hour. When he was about 15 or 20 metres away from the point of impact he noticed an oncoming car with headlights that seemed very bright and which dazzled him. He said that he first noticed this car when it pulled out from behind a car or cars parked on its side of the road. These cars were parked almost opposite or a little to the south of the point of impact. The oncoming car moved partially onto its incorrect side of the road. The plaintiff said that he was afraid that a collision would occur, and he pulled left. He took his foot off the accelerator but did not brake. His front and perhaps rear near side wheel or wheels mounted the footpath and he crashed into the pole. The oncoming car did not stop. The plaintiff undid his seat belt and tried to open his door, but found that his left leg and arm were injured, and fell sideways across the front seat of his vehicle.

1. Almost the whole of that account was subjected to an extensive and capable cross–examination directed towards the proposition that the plaintiff's evidence of the amount of liquor that he had consumed and the circumstances in which the accident occurred, were false.

1. The plaintiff was removed from his car and conveyed by ambulance to the Launceston General Hospital where he was found to have a fractured left patella and a fracture at the head of the left humerus. In hospital, almost two hours after the accident, he underwent a breath analysis which showed a concentration of alcohol in his blood of .12 grams per 100 millilitres of blood. Apart from the breath analysis, there was no evidence other than that given by the plaintiff with respect to the amount of alcohol he had consumed before the accident, and only his evidence of the circumstances leading up to the accident. Documentary material tendered during the course of cross–examination cast substantial doubt on the veracity of most of the plaintiff's evidence–in–chief.

1. The Motor Accidents Insurance Board Forms

1. On about 5 May 1986, while still in hospital, the plaintiff completed a notice of accident and an application for benefits form. In the former document, the plaintiff described how the accident happened in these words:—

"Travelling up Salisbury Crescent oncoming car with lights on high beam. Lost sight of direction of road and hit pole."

1. The description given on the other form was virtually identical. No mention was made of the critical matters deposed to in his evidence–in–chief namely, that this vehicle came out from behind a parked car or cars  and, in effect, forced him off the road. Question 19 on the latter form was:

"If an employee, did accident occur during the course of employment, or whilst on a journey to or from employment ... (if yes, a claim should be lodged under workers compensation.)"

1. The answer given is "no". The plaintiff said that that answer was false. He repeatedly denied that he had gone from work to a tavern known as "Churches on the Park" and had more to drink before going home. Initially, when confronted with these forms he said "it doesn't look like my signature", then, "I'll have to agree it's my signature" and finally, he conceded that all the answers in both forms were in his handwriting. He agreed that he knew "Churches on the Park" and that he "had been there in the past".

1. Workers Compensation Claim Form

1. On 9 May 1986 the plaintiff signed a completed form claiming workers compensation from his employer's insurer. The body of the document was filled in by his wife. "The circumstances in which she did this were not entirely clear but the plaintiff's wife said that she would only have written down that which her husband had told her. In answer to printed questions, the form records that the plaintiff completed work at 11pm, and that the accident occurred at approximately 11.50pm Accepting that the journey from work to home would not have occupied more than 15 minutes, the plaintiff conceded that he had no explanation for the period of 50 minutes shown on the form as having elapsed between the time he left work and the time the accident occurred.

1. With respect to the circumstances in which the accident occurred the form records:—

"Accident occurred at the top end of Salisbury Crescent, just before the road continues up the hill as Ashleigh Avenue. A car came out wide from Salisbury Crescent corner and I had to move my car further to the left side of the road to avoid a collision and hit a hydro pole."

1. The point of impact was about 100 metres north of the top end of Salisbury Crescent. Although it can be said that the form erroneously describes the place at which the accident occurred as, "at the top end of Salisbury Crescent", I do not thick This misdescription is of significance. However, the plaintiff did concede that the explanation of a car coming out wide from Salisbury Crescent and forcing him to move left was wrong. According to his evidence–in–chief the plaintiff did not see the oncoming car until some considerable distance below the top end of Salisbury Crescent. He was unable to account for this error. Further, it should be noted that there is no reference in the statement to bright lights or parked cars.

1. This form also records that the plaintiff was on his way home from work when the accident occurred. That statement, apart from the question of the time he left work, is a contradiction of the statement made on the application for benefits form. The plaintiff had no explanation for this contradiction. He denied having made any false statements but said "its a bit hard to explain that – I can't explain that".

1. Record of Breath Analysis

1. This document was admitted into evidence to establish the truth of certain questions asked of the plaintiff by a police officer shortly prior to the breath analysis. It contained the following questions and answers:

"3Have you consumed any intoxicating liquor recently? ..... Yes.

4How much and what sort of liquor? ...... White Wine and an Irish Coffee. A couple of glasses.

5 What time did you have your first drink?  .... About half passed (sic) one.

6About how long ago did you have your last drink? ... About half passed (sic) two.

7Where did you –consume that liquor?......Churches on the Park".

1. Just prior to this document being admitted into evidence the plaintiff was further pressed about the quantity of liquor he had drunk that day. He then volunteered that he had been at Churches on the Park but only between 1pm and 2pm, prior to going to work. He said that he had there consumed "one glass of Riesling". He again denied that he had been at Churches in the Park after closing the bar at the Tennis Club. When shown the form he asserted without hesitation, that "a couple of glasses" meant one glass of wine and one glass of Irish coffee. This ready assertion I cannot accept. He agreed that he had not been truthful with the police officers in that he made no mention of the dozen six–ounce beers he said he had drunk between 6 and 10pm In assessing the veracity of the plaintiff's evidence–in–chief, I do not attach a great deal of significance to his failure to be truthfull to the police but, of course, it does nothing to bolster his credit.

1. Answers to Interrogatories

1. On 4 August 1987, in answer to an interrogatory, the plaintiff swore that the only intoxicating liquor he had consumed on the day of the accident was, "beer – six–oz. I am unable to be precise about the number consumed but I would have consumed at least twelve six–oz. beers." In cross–examination he said that his failure to mention Churches on the Park was due to inadvertence. Standing alone, this explanation is reasonable, but his failure to mention Churches on the Park until just before the breath analysis form was put into evidence, despite being pressed about this matter, casts doubt on the otherwise reasonable explanation for the omission from the answer to the interrogatory.

1. Statement to the Police

1. On 13 May 1986 the plaintiff made a signed statement to the police, it provided in part:—

"When I was on a straight section I saw a car coming towards me with the headlights on. At this time I moved over to the left as the road is narrow in that part. When I did this my front left wheel clipped the kerb on the left side of the roadway and immediately after that I collided with a hydro pole. I moved over to the left of the road when I saw the headlights as I believed that the other vehicle was going to collide with me."

1. Even after making due allowance for the probable fact that this statement was compiled by police officer as a result of questions asked and answers given, if the accident occurred as described by the evidence–in–chief, it is difficult to understand thy there is no reference to the oncoming car polling out from behind parked cars and, with dazzling headlights, encroaching onto its incorrect side of the road. The description of the accident in the police statement is equally consistent with negligence on the part of the oncoming driver and mere error of judgment by the plaintiff or both. It is significant that the statement asserts a belief that there was going to be collision but does not assert that such belief was induced by the negligence of the driver of the oncoming car.

1. I now turn to examine the rest of the evidence given by the plaintiff. He explained that between approximately 10.30pm and shortly before the accident he was back at his place of employment. He said that he had nothing to drink during this time. Under cross–examination he said that having retrieved his wallet, he then decided to tap another barrel and get some stock out. He explained that this involved cutting up cartons of beer into half dozen lots, stocking up the containers of chocolates, chips and the like, replenishing some or the spirit bottles and stacking up the soft drink fridges. This was a somewhat different account to that given in his evidence–in–chief of "putting some stock away that had accumulated around the store–room". Although he conceded that this kind of work was usually done during quiet periods whilst on duty, he said that he had decided to do it this night as a favour for the other steward who would be coming on duty the next day. He made no claim for overtime. Having regard to his claim that he had once left the Club to go home and had returned only to get his wallet, I find his account of working on for over an hour without pay when there was no need to do so less than convincing. The wages record shows that for most of the time there is only one steward working at the Tennis Club. It was clear from the plaintiff's evidence that there were considerable periods when there were few or no customers in the bar. Usually there was time during the ordinary shifts to restock the merchandise and, according to the plaintiff, this was usually done during this time.

1. Having seen and heard the plaintiff in the witness box for quite a long time, I find that I am unable to accept his account of the amount of intoxicating liquor he had consumed and where he was after leaving the Club at 10.30pm I do find that at 2am the concentration of alcohol in his body was .12% and I accept the evidence of Dr Parsons that, at the time of the accident, it was probably in the order of .15% The plaintiff admitted that it  was not unusual for him to "have quite a few at work from time to time" and that in the past he had "taken the risk of driving home from work after having had a few".

1. I now turn to the cross–examination of the plaintiff about the occurrence of the accident itself. At the outset, the plaintiff conceded that he did not see the lights of the oncoming vehicle until they were very close to him. His failure to see the oncoming lights earlier, having regard to the view the plaintiff had of the road in front of him, is inexplicable except on the basis that he was not keeping a proper look out. The plaintiff conceded that he had no opportunity to assess the existence and location of the car or cars that he claimed was or were parked almost opposite the pole, except just before the impact occurred. On his evidence, that opportunity must have been fleeting and his ability to register the existence and position of any parked car was seriously impaired by the oncoming lights.

1. On the evidence I am satisfied that there probably was an oncoming car which passed the plaintiff immediately before the accident. I make a finding accordingly. At all times since the accident the plaintiff has asserted the existence of an oncoming vehicle.

1. However, I am quite unable to accept as accurate the plaintiff's evidence that there were any parked cars or that the oncoming vehicle encroached onto its incorrect side of the road. I find that the plaintiff pulled to his left on becoming aware, at a very late stage, of the existence of the unidentified motor vehicle. I also find that he did this because he feared that a collision might occur. However, the plaintiff has failed to discharge the onus of proving on the balance of probabilities, that this vehicle was driving with lights on high beam, or that it was being driven partly on its incorrect side of the road. Under cross–examination the plaintiff agreed that he could say no more than the headlights appeared very bright to him. It may have been that, due to the consumption of alcohol, the plaintiff made an error of judgment. The configuration of Salisbury Crescent at that point is such that drivers passing in opposite directions are called upon to exercise fine judgment and a high degree of care. Having regard to the close proximity of the pole to the eastern edge of the road, the slightest error of judgment by a driver travelling south could lead to a collision with the pole. I can place no reliance on the evidence of the plaintiff that he saw a parked car or cars and that he observed the oncoming vehicle moving onto the incorrect side of the road. As was pointed out by learned counsel for the defendant, the plaintiff claimed to have a very clear and detailed recollection of matters which could be seen to have assisted his case but, with respect to many other matters, he simply had no memory at all.

1. The findings I have made are generally consistent with the plaintiff's statement to the police, and the statement in the motor accidents insurance form that "he lost sight of the direction of the road".

1. The plaintiff has failed to establish, on the balance of probabilities, that the driver of the oncoming car was negligent and his claim will be dismissed. There will be judgment for the defendant against the plaintiff.