Dyer v Weston - [2000] WADC 82

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DYER -v- WESTON [2000] WADC 82

CORAM: NISBET DCJ

HEARD: 23-24 MARCH 2000

DELIVERED : 4 APRIL 2000

FILE NO/S: CIV 333 of 1999

BETWEEN: ALAN HENDERSON DYER
Plaintiff
AND
JOHN ROBERT WESTON
Defendant

Catchwords:

Motor vehicle accident - Trial of liability only - Car versus trailer collision - Turns on own facts.

Legislation:

Nil

Result:

Claim fails

Representation:

Counsel:

Plaintiff: Mr D Bruns
Defendant: Mr J P T Olivier

Solicitors:

Plaintiff: Separovic & Associates
Defendant: Talbot & Olivier

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

NISBET DCJ: On 8 December 1995 the plaintiff was driving an unmarked Mitsubishi truck for his employer, Fauldings. He was travelling south east on Albany Highway, Kenwick. He said that he was doing about 60 kilometres an hour and was travelling in the left hand or kerb side lane which he had been in since leaving the Carousel Shopping Centre in Cannington. He then observed a utility and trailer parked in the right hand or centre lane, the lane closest to the double white dividing lines in Albany Highway. The utility and trailer were waiting to effect a right hand turn and it seemed to the plaintiff it had been waiting there quite some time, presumably for oncoming traffic to clear in order that it could effect its turn. The plaintiff deposed that as he approached the utility and trailer those vehicles commenced a right hand turn at a time when he said he was virtually on top of them, which I took to mean as the front of the plaintiff's truck came up very close to the rear of the trailer. The plaintiff said that during the course of turning the trailer protruded into his lane of traffic by about half a metre or so. The plaintiff said in effect that he had nowhere to go. He could not jump the kerb because of the power poles close to the roadside and the left hand rear of the trailer was blocking his path in his lane of traffic. He braked heavily, locking up his brakes, but the right hand driver's side of his truck came into collision with the left hand rear of the trailer.
After the collision the plaintiff said that he stopped his truck in his lane of traffic, leaving the hazard lights flashing. His side of the vehicle was damaged such that he could not open his door and accordingly he had to exit the vehicle out of the passenger door. Taking some paper and a pen he crossed the road and observed that the utility and trailer had crossed into the premises of Freedom Pools. There he approached the driver of the utility, the defendant in these proceedings. The plaintiff asked the defendant if he was okay and whether or not he sustained any damage to his vehicle. There was apparently nothing wrong with the defendant and the plaintiff then had a look at the defendant's trailer and said that he was amazed that it hadn't sheared off the tow ball on the utility. He did not notice any damage to the trailer or utility. The plaintiff said there was no discussion about who was to blame for the collision. Having exchanged details the plaintiff went to his employer's repair shop, some first aid was effected to a cut on his hand and he telephoned his office who, enquiring whether his truck was capable of being driven, requested that he continue to his place of employment where he completed some accident details. His wife then came and took him to the police where he made out an accident report. Later the plaintiff said there were visible skid marks at the accident scene which were wholly within the lane in which he was travelling, namely the kerb side lane. The plaintiff further testified that if there had been a sign on the back of the defendant's trailer such as one sometimes sees on articulated vehicles warning of the danger of the rear of the trailer swinging out during turning, then he would have backed off and let the defendant complete his turn before attempting to pass in his lane of traffic.
Cross‑examined, the plaintiff denied that he was in the same lane of traffic as the defendant, denied that he attempted to avoid the collision at the last minute by swinging into the left hand or kerb side lane and denied there was a discussion about who was to blame. In particular it was put to him that the defendant said words to the effect "You fucked up pal" to which it was put the plaintiff replied "Yeah I misjudged that one" alternatively "I'm sorry about that". The plaintiff said that he did not hear any of these things said and that he did not say anything like words which could be interpreted as an admission of fault.
The defendant gave evidence that for some nine months or so before this collision he had been employed as a driver for Freedom Pools in Albany Highway in Kenwick. He had at that time been driving for almost 35 years and held A, B, C, F and K Class licences which entitled him to drive sedans, trucks, semi‑trailers and other articulated vehicles from eight tonnes up to semi‑trailer configuration. He didn't say but it was later given in evidence that notwithstanding that he had worked solely for Freedom Pools from about March of 1995 he had worked for a contractor who delivered pools for Freedom Pools for some four years or so previously although not on a full time basis.
At any rate he said that on the day in question he had delivered a pool and was returning to Freedom Pools in Albany Highway in Kenwick and was stationary outside their premises waiting to effect a right hand turn. He was driving a Holden one tonne utility to which was attached a trailer. The trailer is no ordinary domestic trailer. It is a dual axle trailer with the axles centred in the middle of a very long body, the evidence being that its length overall was some 9.5 metres and its width at its widest part being some 2.31 metres. As might be imagined the distance from the rear axle to the rear of the trailer was considerable, accounting for a large 'overhang' as it was called.
The defendant testified that the trailer was empty as he had just completed a delivery and that he was stationary on the inside lane close to the double white lines waiting for oncoming traffic to clear before effecting a right hand turn into his employer's premises. He said that he was about to move off across the double white line when he heard the sound of brakes and the next thing he knew was that he got shunted from the rear. Whilst he didn't measure it he thought he was about 20 metres back from the entrance to the driveway he was going to go into at the time the collision occurred. The defendant said that he had only gone a very small distance, maybe a couple of feet, before the collision occurred. Asked if he noticed where the plaintiff was in relation to his vehicle, he said that the plaintiff was behind him and to the left when the collision occurred but he didn't take any notice of where he had been before that.
After the collision the defendant testified that he continued to effect his right hand turn into his employer's premises where he pulled up in the driveway with his utility and trailer fully inside the driveway. As he was there waiting the plaintiff came over to him and when he arrived the defendant said that he said to him words to the effect "You fucked up about that pal" to which the defendant says the plaintiff responded "Yes, I'm sorry about that".
The defendant said that there was no damage to his utility and the only damage to his trailer was very minor, a cracked tail light. He reported the accident, he thought the next day. He wasn't going to, but his employer insisted.
In cross‑examination the defendant conceded that he couldn't remember exactly how he was driving four and a half years ago and that his vehicle may have been at a slightly different place in the roadway than as he recalled it now and also that the conversation that he reported may have configured the language differently than he presently remembered it but generally speaking he thought his recollection of events reasonably accurate.
There were two eye witnesses to the accident each of whom was called to give evidence. They were the State Manager of Freedom Pools, Mr Ernest Bevilacqua, and Mr Grant Stewart Griffiths, a salesman at Freedom Pools. Mr Bevilacqua gave evidence that he had been speaking with Mr Griffiths outside the office. They were in the display area which has a frontage to Albany Highway. They were having a general chit‑chat when he heard the screeching of brakes and the squealing of tyres like somebody had locked up their brakes. He said that he immediately looked to the direction from whence the noise came, which was towards the city, some 45 degrees or so off to his left. There he saw a van or a light truck he thought which had Faulding written on the side, and this vehicle was located in the roadway at some 45 degrees from the centre lane into the left hand or kerb side lane. When he first saw this vehicle its rear was in the centre lane. In front of this was the defendant's vehicle and trailer. His impression was that the defendant's utility and trailer were stationary at the time. He could tell that the defendant's utility and trailer were in the centre lane but he couldn't see how close the vehicles were to the double white line but, he said they looked close to it. Next he says he saw the plaintiff's vehicle hit the rear of the defendant's trailer with its front right hand side, colliding with the left hand rear side of "our trailer". He observed the light truck driven by the plaintiff continue in the left hand lane where he saw the plaintiff put his vehicle on the verge in front of the cemetery opposite their premises. He also saw the defendant pull into Freedom Pools' driveway at which time he and Mr Griffiths started walking towards the defendant. By the time they approached, the plaintiff had come across the road and he heard the defendant say words to the plaintiff to the effect "You've stuffed up". He then said he heard the plaintiff apologise and say words to the effect that the plaintiff did not see the defendant and did not realise that the defendant was turning. Next, Mr Bevilacqua said that he heard the defendant say there was "bugger all" damage to "our trailer".
Cross‑examined very closely about the relative position of Mr Bevilacqua to the three vehicles and the view that he had Mr Bevilacqua maintained his view of the collision as I have just described it. There is one exception. He agreed that the plaintiff's truck did not have "Fauldings" written on it and that it was a plain truck and that he apologised for his error. He denied that he was reconstructing the events and that he had refreshed his memory from discussions with others.
Mr Griffiths testified that the events in question took place in the early afternoon when he was standing in the middle of Freedom Pools' display yard with Mr Bevilacqua. He said he then heard the screech of brakes and looked up and saw a truck swerve hard left and then collide with the rear of a trailer in front. He said the front driver's side of the truck collided with the rear left hand side of the trailer. He said that Mr Western, whom he knew, was wholly in the right hand lane, that is to say the centre lane, the lane closest to the double white lines, and when he first turned to look at the scene immediately following him hearing the screech of brakes the defendant was parallel to the double white lines. He couldn't see how far the right hand side of the defendant's vehicles were from the double white lines but he could tell that they were close to them. He also thought the defendant was stationary but said that he couldn't be 100 per cent sure of that. He thought the defendant's truck was white with a silver backed panel. It too he said was in the centre lane, the same lane as the defendant's utility and trailer when he first saw it, but he said he saw it swerving to its left. He said it was veering away from the double lines at approximately 45 degrees. Following the collision Mr Griffiths testified that the plaintiff's truck continued down the kerb side lane and parked off the roadway on the grass verge and he observed the driver cross the road into Freedom Pools' premises and speak with the defendant. As he approached the defendant he heard some of the conversation He could not remember the words, but the plaintiff said something like that he was sorry. He confirmed that he had a clear view of the collision and further, that later that day he went and inspected the skid marks where he clearly observed them to be in the centre lane, the lane closest to the double white lines. In cross‑examination Mr Griffiths said that the skid marks were long and straight and entirely in the centre lane of traffic, that is the lane closest the double white lines and the skid marks did not veer into the kerb side lane that he could recall. He confirmed that he saw the plaintiff's vehicle swerve, he saw it change angle. He agreed that it all happened very quickly but he saw smoke from the screeching of brakes, the truck veering then the bang happened after he had turned to view the scene. Whilst he agreed that he could not be at all sure of the words that were spoken by the plaintiff to the defendant he distinctly remembered that it was an apology. He was sure that something was said by the plaintiff about it being his fault.
In addition to these witnesses two experts were called, one for the plaintiff and one for the defendant. Very little turns upon their testimony. Each of Mr Bohdan Generowicz (for the plaintiff) and Mr William Jack Apgar (for the defendant) testified that having regard to the dimensions of the trailer and the width of the road it was certainly possible that in executing a right hand turn at Albany Highway into the premises of Freedom Pools the defendant's trailer could have encroached into the kerb side lane. This is basically because the arc described by the rear left hand edge of the trailer is greater than the arc that will be described by the central turning point of each of the utility and trailer and as the trailer will pivot on its dual axles the overhang will follow the direction of the pivot which may mean that it will swing into the adjoining lane of traffic. I find there to be absolutely nothing remarkable about this. It all depends on the manner of driving. If, as Mr Western the defendant says, he was executing what might be called a very wide-arced turn commencing to make his turn some distance before the entrance to the driveway so that the arc he described was a very wide arc then no part of his trailer would swing into the adjacent lane. If however the turn that he executed was slightly sharper then there was the distinct possibility that the rear of his trailer could swing out into the adjacent lane. He was an experienced driver and, I have no doubt, knew the characteristics of his trailer and most of the time probably drove accordingly. The real issue however is not whether the trailer could have swung into the adjacent lane, but whether it did swing into the adjacent lane.
Because the defendant had not seen the position of the plaintiff's vehicle in the roadway immediately before the collision occurred his evidence in reality sheds very little light on the circumstances of the collision. The eyewitnesses who saw the collision are the plaintiff, Mr Bevilacqua and Mr Griffiths. I was impressed by Mr Bevilacqua. He struck me as being an honest, forthright man with no axe to grind, who described the events exactly as he had seen them, without any embellishment or omission. I formed the same opinion of Mr Griffiths. He too struck me as being an honest and forthright man likewise with no axe to grind who testified in accordance with his observations and recollections again without embellishment or omission. I thought each of Mr Bevilacqua and Mr Griffiths reliable witnesses whose testimony I could confidently accept.
Looking at the evidence of the plaintiff and observing him closely in the witness box I formed a reasonably favourable impression of him. One or two aspects of his evidence gave me cause for concern. For example in evidence‑in‑chief having at one time said that he was in the kerb side lane since leaving the Carousel Shopping Centre later, when asked again he said that "To the best of my knowledge I was in the left hand lane all the way from Carousel", a hint (I thought at the time) of prevarication, so much so that I made a note of it and when I put this in the balance with the evidence of Mr Bevilacqua and Mr Griffiths I prefer their version of events to the plaintiff's. It is compelling testimony and the weight of it is such that I accept it and reject the evidence of the plaintiff in consequence.
It follows therefore that this collision occurred not by reason of any negligence of the defendant but by reason of the fact that the plaintiff, travelling in the same lane as the defendant, failed to take such steps as were necessary to either slow down and stop and permit the defendant to execute his right hand turn or to move safely into the kerb side lane so that he could pass him on the inside. Accordingly the plaintiff's claim must be dismissed.