Del Simone v Powell

[1994] QCA 556

IN THE COURT OF APPEAL

[1994] QCA 556

SUPREME COURT OF QUEENSLAND

Appeal No. 54 of 1994

Brisbane

[Del Simone v. Powell & Anor.]

BETWEEN:
               MARGHERITA ANGELA DEL SIMONE
  (Plaintiff)          Appellant

- and -

IAN ROBERT POWELL
  (Defendant)

- and -

FAI GENERAL INSURANCE COMPANY LIMITED
  (Defendant by Election)   Respondent

FITZGERALD P.
  DAVIES J.A.
  PINCUS J.A.

Judgment delivered 21/12/94

Judgment of the Court

APPEAL DISMISSED WITH COSTS TO BE TAXED

CATCHWORDS:   NEGLIGENCE - LIABILITY - appellant suffered personal injuries as result of collision with respondent's vehicle - appellant commenced U-turn into path of respondent's oncoming vehicle - whether respondent failed to act reasonably in not stopping or slowing down so as to avoid collision

Counsel:     Mr. R. M. Stenson for the appellant
             Mr. R. Oliver for the respondent

Solicitors:   Dixie Ann Middleton & Associates for the appellant
             Baker Johnson & Partners for the respondent

Hearing Date: 21 September 1994

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 54 of 1994

Brisbane

Before    Fitzgerald P.
         Davies J.A.
         Pincus J.A.

[Del Simone v. Powell & Anor.]

BETWEEN:
               MARGHERITA ANGELA DEL SIMONE
  (Plaintiff)          Appellant

- and -

IAN ROBERT POWELL
  (Defendant)

- and -

FAI GENERAL INSURANCE COMPANY LIMITED
  (Defendant by Election)   Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the Twenty-first day of December 1994

This is an appeal by an unsuccessful plaintiff in an action for personal injuries in the District Court.  The injuries were caused in a motor vehicle collision on Bedford Road, Mackay on 29 May 1989.  Bedford Road ran generally in a north/south direction at the place where the collision occurred.  The appellant was the driver of a Ford LTD motor vehicle which, shortly prior to the collision, was parked on the western side of Bedford Road, facing in a northerly direction outside No. 163 Bedford Road where she had been.  It was her intention of executing a U-turn in order to proceed along Bedford Road in the opposite direction to the way in which her vehicle had been facing.  She had no relevant recollection of events after entering her car. 
     The respondent, shortly prior to the accident, was driving his Ford F100 utility, which was then towing a large double axle trailer carrying a 26 foot boat, along Bedford Road in a northerly direction.  As it approached the plaintiff's car the latter commenced its U-turn.  The vehicles collided near the middle of the road but probably on the eastern side.
     Although as the respondent approached the appellant's car he was coming around a right-hand bend in Bedford Road, it was common ground that there was clear view of one vehicle by the driver of the other for more than 100 metres.  The respondent whose evidence the learned trial judge accepted, said that he was travelling at about 60 kmph until immediately before the collision.  He said that when he was only a short distance from the plaintiff's car, a distance which he estimated as that separating the witness box from the dock in the court, the latter commenced a U-turn in front of him.  He then moved to his right and braked but could not, he said, avoid the collision.
     A Mr Guimelli, who arrived on the accident scene having heard the collision, gave evidence that he spoke to the respondent shortly afterwards.  He said that the respondent told him that he saw the appellant's car with its right trafficator on, that he intended to go around it but that the car kept on going (apparently across his path) and he then braked suddenly.  The respondent's version was similar to this except that he had no recollection of seeing the right trafficator operating although he recalled seeing brake lights on before the car moved out.  His Honour did not find it necessary to decide whether the appellant's trafficator was operating and nor do we.  Even if it had been operating that would not have warned a driver in the respondent's position that the appellant was about to make a U-turn.  It was more consistent, having regard to his obvious presence behind her, with an intention to move out onto the roadway and continue ahead.  Had she done that it is likely that the respondent could have overtaken her and continued on.  The road ahead was clear.
     The appellant, by her counsel, conceded that she was negligent and that her negligence was the main cause of the collision.  But it was submitted that the respondent should have been able to stop or slow down and avoid the collision.
     The crucial question as to any possible negligence of the respondent is the distance which separated the two vehicles when it must have been obvious to a reasonable driver in the respondent's position that the appellant intended to make the U-turn.  If that distance was that estimated by the respondent by reference to the witness box and the dock, or anything like it, the respondent could not reasonably have avoided the collision.  At another part of his evidence the respondent said that the appellant's car started to turn into his path when he was within 20 to 30 feet of it.  It was pointed out by the appellant's counsel that if either of these estimates was correct the respondent would not have had time to brake before the collision yet he conceded that the skid marks left by his vehicle on the roadway were in the order of 25 metres long.
     It is always dangerous in cases such as this to attempt too close a mathematical analysis in order to reconcile estimates of speed and distance with skid marks left on the roadway particularly where, as here, those marks, or part of them, could have been made by the vehicle after collision.  The general effect of the respondent's evidence, which as we have said the learned trial judge accepted, was that the respondent noticed that the appellant was making a U-turn when he was only a short distance from her car and that by then it was too late to avoid the collision.  The effect of his Honour's finding was also that the respondent could not reasonably have appreciated before he made that observation that the appellant intended to make a U-turn across his path.  That was a finding which his Honour was entitled to make once he had accepted the respondent's evidence.
     On that finding there is no room for a conclusion that the respondent was negligent.  Accordingly the appeal must be dismissed with costs to be taxed.