Earl v Stevensen - [1999] WADC 115

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: EARL -v- STEVENSEN [1999] WADC 115

CORAM: WISBEY DCJ

HEARD: 1-3 NOVEMBER 1999

DELIVERED : 12 NOVEMBER 1999

FILE NO/S: CIV 2717 of 1997

BETWEEN: STUART JAMES EARL
Plaintiff
AND
CHERYL LINDA STEVENSEN
Defendant

Catchwords:

Negligence - Road accident - Northbound motor vehicle colliding with southbound motorcycle turning left onto road from driveway - Allegation that defendant driving on incorrect side of road and at speed - Defendant not guilty of causative negligence - Turns on own facts

Legislation:

Nil

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: Mr I L K Marshall
Defendant: Mr J P Olivier

Solicitors:

Plaintiff: Kakulas & Kakulas
Defendant: Talbot & Olivier

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

Minshull v Pecorari (1968) WAR 59

Case(s) also cited:

Millicent District Council v Altschwager (1993) 50 ALR 173

WISBEY DCJ: Stuart James Earl, a contract postman born 7 September 1945, claims damages for personal injury sustained in an accident on 18 April 1995, which, according to his case, was due entirely to the negligence of the defendant. Quantum was agreed shortly before the start of the hearing at $72,942.70, and as a result the issues for determination are the primary negligence of the defendant, and in the event of negligence being established, the degree of contributory negligence (if any) on the part of the plaintiff.
In para 2 of the statement of claim the plaintiff alleges that:
"On 18 April 1995 the plaintiff was the rider of a Honda CT 110cc motorcycle, registration No UM5304 travelling in a southerly direction along Smugglers Pass Drummond Cove Geraldton. At or about the same time the defendant was driving Sigma station wagon registration No 7PL 463 in a northerly direction along Smugglers Pass Drummond Cove Geraldton, and when negotiating a bend in the road crossed onto the incorrect side of the road and collided with the Honda. The plaintiff says that the collision was caused entirely by the negligence of the defendant.
Particulars of the defendant's negligence
The defendant was negligent in that she:
(a)failed to keep any or proper lookout;
(b)allowed her vehicle to cross onto the incorrect side of the road and thereby breached regulation 501 of the Road Traffic Code;
(c)drove at a speed excessive in the circumstances;
(d)failed to steer clear of or avoid a collision with the plaintiff;
(e)failed to apply her brakes timeously or at all so as to avoid a collision with the plaintiff."
In her defence the defendant admits that on the date pleaded by the plaintiff a collision occurred on Smugglers Pass between the plaintiff's motorcycle and a motor vehicle driven by her, but states that the collision was caused by the negligence of the plaintiff in that he:
(a)failed to keep any or a proper lookout;
(b)allowed the motorcycle he was riding to cross onto the incorrect side of the roadway, thereby breaching regulation 501 of the Road Traffic Code;
(c)drove at an excessive speed;
(d)failed to steer, brake or otherwise manoeuvre the motorcycle he was riding so as to avoid a collision with the defendant's motor vehicle.
It is immediately apparent that the primary controversy requiring resolution is whereabouts on the roadway the collision occurred, and in order to address the issues I turn to a consideration of the relevant evidence.
The evidence
The scene of the accident
Christopher Robert Bowen, an investigator and formerly a police officer, carried out investigations between the date of the accident and mid 1996, prepared a plan of the accident locality (Exhibit 10), and took various photographs, some of which were tendered in evidence. The plan demonstrates, as did the evidence, that at the relevant time Smugglers Pass was an unmarked roadway, with a 7.4m wide sealed surface, lying in a north/south configuration. On either side of the sealed surface there was a 4.4m wide verge. On the eastern side of the road at the accident site Lots 146, 147 and 148 were situated, Lot 146 being the most northerly lot. Houses were erected on Lots 146 and 147, the frontage of the lots being 30.7m and 22.93m respectively. Lot 126 was diagonally opposite Lot 146 on the western side of the roadway.
Stuart John Earl
The plaintiff was a contract postman, having formerly served as a police officer. His duties as a contract postman on the day of the accident, and for some considerable time prior thereto, involved making mail deliveries in Drummond Cove, and particularly to residences in Smugglers Pass. As a consequence he was familiar with the area. For the purpose of mail delivery he rode the Honda 110cc motorcycle shown in Exhibit 1, mail being carried bilaterally in satchels affixed towards the rear of the cycle, and in a tray in front of the handlebars. The plaintiff stated that he was proceeding along Smugglers Pass in a southerly direction, delivered mail to the letter box at Lot 146, and proceeded out onto the roadway before turning into the driveway at Lot 147 to make another delivery. Having deposited mail, he proceeded back onto the roadway turning south, the next delivery being at a point some considerable distance away. The plaintiff stated that he came out onto the roadway and began proceeding south when he sensed movement to his left and glanced back at the letter box at Lot 147. As he did so he was struck on the right leg, and it is common ground that was because of an impact with the defendant's vehicle. The plaintiff made it clear that prior to proceeding out onto the roadway from Lot 147 he checked to his right (north) particularly, and to his left (south) generally, and satisfied himself that there was no oncoming traffic. He stated that Smugglers Pass continued south terminating at a roundabout at Glenfield Beach Drive. The distance from Lot 147 to the roundabout was in excess of 300 yards, and because Smugglers Pass curved to the west and dropped away, visibility in a southerly direction was limited to about two-thirds of that distance. The plaintiff indicated that he had only travelled a short distance south on Smugglers Pass after leaving Lot 147 when the impact occurred, and was at that stage in his correct position on the roadway 4ft out from the eastern kerb and travelling between 5 to 8km/h. He did not see the defendant's vehicle and after impact ended up on the roadway some 2ft from the eastern kerb, his right boot having come off. The defendant's vehicle was in a stationary position to his north and the defendant alighted from the vehicle, put her hands over her face and said words to the effect "Oh my God". The plaintiff called out to the defendant for assistance but she got back into her vehicle and moved it to a parked position on the western verge near the southern boundary of Lot 126 some 20-22 yards from the plaintiff. The plaintiff asserted that prior to the defendant's vehicle being shifted it was in the southbound carriageway. He stated that his motorcycle was lying on its side immediately after the collision, but was subsequently put on its side stand in a position to the west of the carriageway. He claimed to have pointed out to the police that the cycle had been moved when an officer attempted to mark its position. The plaintiff was emphatic that he did not steer in a wide arc as he came out of the driveway of Lot 147 and turned south, and that the defendant was on her incorrect side of the road.
In cross-examination the plaintiff stated that he had travelled 15‑20ft from the letter box at Lot 147 before impact. Describing his movements after turning into Lot 147, the plaintiff said that he stopped adjacent to the letter box to insert some mail, then straightened the bike up and rode out, having checked for traffic coming from the north and south. He felt something of the order of two or three seconds passed between his checking for traffic and the impact, although he agreed that it might have been five or six seconds. He thought some 10-15 seconds passed between leaving the letter box and the impact. In circumstances such as this I do not consider that much reliance can be placed on estimates of time, position and distance. He accepted that he could see some 100-150m to the south as he turned onto the roadway, and although he looked he did not see any northbound traffic. He conceded that he looked back towards the letter box as he was making the turn, and expressed the view that he might have been in a position some 4-5ft in from the eastern kerb when making the turn. He claimed that his position on the roadway changed between the time of the impact and the arrival of police officers; that his bike had been moved and the defendant had shifted her car before the police arrived; and that a large portion of the defendant's vehicle was on its incorrect side of the road when it stopped after impact. The plaintiff said he had been wearing a motorcycle helmet which he took off and threw behind him whilst seated on the roadway. Only a push cyclist's helmet could be located after the accident.
It appears from the plaintiff's evidence that the defendant shifted her vehicle within 10 seconds of the accident from its position of rest immediately after the accident, parking it on the western side of the roadway near Lot 126.
In re‑examination the plaintiff stated that immediately after the impact he was on the roadway facing south some 2-3ft from the eastern kerb, but shifted to a more westerly position shortly thereafter.
Karen Thurza Harvey
Mrs Harvey who resides at Lot 147 Smugglers Pass gave evidence that at about 3.10pm on 18 April 1995 she was dozing in her bedroom and was woken by screaming. She got up, looked out the window, and observed the plaintiff lying in the middle of the roadway holding his leg. His bike was on the roadway nearby, and she also observed a white sedan. Mrs Harvey immediately went to the plaintiff's assistance, and observed that the plaintiff was in approximately the centre of the roadway, on his back, facing east, and holding his right leg up. The motorcycle was a couple of feet north of the plaintiff, in the centre of the roadway, and there was a white sedan approximately in line with the driveway of Mrs Harvey's house north of the motorcycle between the centre of the roadway and the western kerb. She stated that the defendant was still seated in the sedan. There was mail on the roadway, and a boot near the eastern kerb just past the southern boundary of her property. When she reached the plaintiff, another male person was attending to him. Whilst Mrs Harvey was standing near the plaintiff, the defendant's vehicle was shifted closer to the kerb near the southern boundary of Lot 126. Mrs Harvey spoke to the defendant who claimed that the plaintiff had come straight out from the driveway of Lot 146.
In cross-examination Mrs Harvey confirmed that when she looked out of her bedroom window having heard the plaintiff screaming for assistance, she observed him in the centre of the road, the motorcycle being a couple of feet north of the plaintiff's position facing south west in the centre of the road, although her recollection was that the front of the bike was at the centre of the road and the rear more to the east. She stated that the defendant's car had not been moved when she spoke to the defendant.
Dallas Sidney Jack Cox
Mr Cox was working with one Adrian Francis Tiver constructing the roof on a property being erected at Lot 144 Smugglers Pass on the day of the accident . That afternoon, whilst working on the roof, he observed the plaintiff delivering mail on the western side of Smugglers Pass. Some time later Mr Cox heard the sound of an impact and as a consequence got down from the roof and ran towards the place from which the sound appeared to come. He claimed it took him about 30 seconds from the time he heard the impact until he reached the plaintiff who was lying slightly east of the centre of the roadway "but basically in the middle of the road". He stated that the motorcycle was north of the plaintiff, in the centre of the road but more to the west, and the engine was still running. Mr Cox spoke to the plaintiff who indicated that he was okay and requested that Mr Cox check on the defendant. He observed the defendant's vehicle against the kerb on the western side of the carriageway south of the plaintiff, with damage to the righthand fender. Mr Cox pointed out that as Smugglers Pass extended south to the roundabout it veered to the west and sloped down to the roundabout. He accepted, however, that it was possible to get a reasonable view south for some considerable distance from the accident site.
In cross-examination Mr Cox emphasised that the plaintiff was positioned on the roadway closer to the eastern than the western kerb.
Adrian Francis Tiver
On the morning of the day of the accident Mr Tiver observed the plaintiff travelling north on Smugglers Pass. He stated that in the afternoon he heard the sound of an impact and proceeded with Mr Cox to the accident scene where he observed the plaintiff lying in the centre of the roadway, his head and shoulders being west of, and his legs east of the centre of the roadway. The motorcycle was north of the plaintiff in the centre of the roadway, and the defendant's vehicle was parked against the western kerb, some 5m north of the plaintiff. The defendant was standing in front of the vehicle.
In cross‑examination he stated that the plaintiff's motorcycle was roughly straddling the centre of the roadway and the defendant's vehicle was north of the plaintiff on the western side of the roadway.
James Charles Taylor
Det Snr Const Taylor was summoned to attend the accident site and observed the plaintiff lying on the roadway attempting to get to his feet. He stated that the plaintiff was approximately 2m in from the eastern kerb, and his motorcycle was some 2m further north, lying on its side. Whilst Det Taylor attended the plaintiff, someone stood the motorcycle up. Det Taylor noticed a white station wagon near the western kerb, north of the plaintiff. Det Taylor took a statement from the defendant (Exhibit 6). He stated that the defendant appeared visibly upset whilst giving her statement. He confirmed that the damage to the defendant's vehicle was to the right front corner, and stated that there were no skid or other markings on the road, evidencing the accident.
In cross‑examination he expressed the view that the plaintiff's body was about 2m out from the eastern kerb, although his head was closer to the middle of the road.
Cheryl Linda Stevensen
The defendant, who was at the relevant time a 33 year old accounts clerk living at 24 Smugglers Pass some distance from the accident scene, stated that on the day of the accident she finished work at about 3.00pm, picked up her two young children from a daycare centre, and was driving home in a northerly direction along Smugglers Pass, having entered at the Glenfield Beach Drive roundabout. She stated that she was driving on the western side of Smugglers Pass, the lefthand side of her vehicle being approximately 1-1½m east of the kerb. When she was some considerable distance back she observed the plaintiff making mail deliveries, and in particular a delivery at Lot 146. She then observed him ride out onto Smugglers Pass and into Lot 147. She stated that as she was passing Lot 147 the plaintiff "was just there" appearing to have come out too wide onto the roadway striking the right front and right front corner of her vehicle. She was adamant that she did not go onto the eastern side of the road. She stopped immediately after the impact, bring her vehicle to a stationary position some 4-5m from the plaintiff, got out, and enquired of the plaintiff as to what he had been doing. As the plaintiff requested her to get an ambulance she went into Lot 126 to request that one be summoned. She was adamant that she did not drive her vehicle again that day, and in particular that she did not shift it from the position in which it came to rest following the impact. Her recollection was that the plaintiff was lying on the roadway east of centre although "more or less to the centre of the road". His motorcycle was north of him, but otherwise in a similar position. It was clear from her evidence‑in‑chief and subsequent cross‑examination that the defendant did not observe the plaintiff come out from Lot 147, and that her description of what he had done, both to the police in Exhibit 6, and in her evidence, was inferential.
The defendant stated in cross‑examination that she might have been travelling at 40km/h, although she nominated 30km/h in Exhibit 6. She confirmed that she had not seen the plaintiff immediately prior to impact, and as I have already indicated made it clear that her description of his movements as he left Lot 147, was inferential. She was emphatic that she was on her correct side of the roadway and watching the road ahead prior to and up to the point of impact.
Keith John Burrows
Senior Constable Burrows who was attached to the Geraldton Traffic Office, attended the scene of the accident. On arrival he observed the plaintiff lying in the middle of the roadway, the motorcycle being in similar position a short distance north of him, lying on its side. He confirmed that there were no skid or other marks on the roadway evidencing the accident. He described some rather inconsequential damage to the righthand side of the motorcycle and to the front right corner of the defendant's vehicle.
Peter Edward Taylor
Mr Taylor is and was at the relevant time the occupier of the residence at Lot 126 Smugglers Pass. He confirmed that he was at home at the time of the accident and that his wife answered a knock on the front door and admitted the defendant who stated that the postman had been knocked from his motorcycle and requested an ambulance. Mr Taylor immediately went out onto Smugglers Pass where he observed the plaintiff lying on the roadway and engaged him in conversation. The plaintiff said words to the effect that he looked over his shoulder to see if the letters were still in the letter box at Lot 147 and might have ventured out too far onto the roadway.
Findings of fact
1.Smugglers Pass at the scene of the accident has a north/south configuration with a level surface at that point but with a decline to the south and veering west as it extends down to the roundabout. As already indicated the sealed surface has a width of 7.4m there being no central dividing line. It follows necessarily that the width of surface for vehicles travelling in either direction is 3.7m.
2.The visibility for both the plaintiff and defendant was not impaired in any way by the topography, physical features, weather conditions or otherwise.
3.The plaintiff had an unobstructed view to his left along Smugglers Pass in a southerly direction for a distance of 150m or more; and as the defendant proceeded north along Smugglers Pass she had a similar view north to the accident site.
4.The plaintiff failed to observe the defendant's vehicle immediately prior to the accident or at all, and the only reason therefore is that he failed to exercise any lookout for northbound traffic.
5.Although the defendant observed the plaintiff making mail deliveries when she was a considerable distance from the accident scene, she did not see him immediately prior to the accident, and particularly did not observe him come out from the driveway of Lot 147. In that respect she failed to keep a proper lookout.
6.I do not accept the plaintiff's account of the circumstances leading up to the accident. I find his account unreliable and formed the impression whilst he was giving evidence that he was unconvincing in his cause. I reject his evidence that he checked for northbound traffic prior to proceeding out onto the roadway after delivering mail at Lot 147. The probability is that he was looking back towards the letter box as he proceeded out because of his concern that the letters might not have been properly deposited in the box. I reject his evidence that he turned to the left such that he was positioned approximately 4ft out from the eastern kerb when contact was made with the defendant's vehicle. That would have required the defendant's vehicle to be totally on its incorrect side of the road. It would be extraordinary for a person to drive in that position, and I do not accept that the defendant did. It is also inconsistent with the position in which the plaintiff and his motorcycle came to rest after the accident.
The burden of the evidence establishes that the plaintiff and his cycle came to rest in approximately the centre of the roadway - perhaps slightly east of centre - and the likelihood is that both the plaintiff and the cycle were, by reason of the impact, moved east of the point of impact.
7.I accept the defendant's evidence that she was driving at a speed of no more than 40km/h and, having regard to the nature of the damage to both vehicles, and the positions at which the plaintiff and the vehicles came to rest, I think it is probable that the speed the defendant nominated in her statement to the police namely 30km/h is realistic. The defendant gave her evidence in an entirely appropriate manner, did not prevaricate or attempt to assert facts of which she was not sure. Her account of the details of how the accident happened, both in her statement to the police (Exhibit 6), and her evidence, was essentially a reconstruction and inferential. It was therefore unreliable, but that does not cause me to doubt the accuracy of the substance of her evidence concerning the speed of her vehicle and its position on the roadway. Whether or not she shifted her vehicle after impact as alleged by the plaintiff, which I think is unlikely, I have no doubt but that her belief that she did not do so is genuine. She impressed me as a sensible, concerned and entirely ingenuous lady.
8.I accept the evidence of Peter Edward Taylor that the plaintiff told him that he had looked over his shoulder to see if the letters were still in the letter box at Lot 147, and might have ventured too far out into the roadway. Clearly in considering that statement one must have regard to the fact that the plaintiff must have been in a state of shock. Notwithstanding, he was prepared to consider the possibility that he moved out too far into the roadway, and in my view it is the most probable inference to be drawn from the evidence. The injury to the plaintiff, and the damage to the respective vehicles, is entirely consistent with the motorcycle turning onto the roadway in a wide arc to travel south, making contact with the defendant's vehicle.
9.Accepting as I do the evidence of the defendant that her vehicle was at all times appropriately positioned on the northbound path of the roadway, the conclusion necessary to be drawn is that the accident was caused by the plaintiff's failure to keep a proper lookout, and his veering out in a wide arc onto Smugglers Pass, crossing onto the incorrect side of the roadway into the path of and colliding with the defendant's vehicle. The allegations by the plaintiff that the defendant allowed her vehicle to cross onto the incorrect side of the road and/or drove at an excessive speed, are not established by the evidence. I note in passing that at trial the plaintiff's case was not put on the basis that the defendant "when negotiating a bend in the road crossed onto the incorrect side of the road".
10.I have already concluded that the defendant was not keeping a proper lookout, and the question is whether the plaintiff has established on the balance of probabilities that her failure to so do was in part causative of the accident. I do not accept that it was. The defendant was not required to conduct herself on the basis that the plaintiff would suddenly proceed out into the path of her vehicle: Minshull v Pecorari (1968) WAR 59. When he undertook that manoeuvre an accident was unavoidable notwithstanding any steps the defendant could have taken had she had him under observation.

Decision

The plaintiff's negligence was the sole cause of the accident, and having failed to establish causative negligence on the part of the defendant, the plaintiff's claim is dismissed.