Earl v Stevensen - [2000] WASCA 159

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: EARL -v- STEVENSEN [2000] WASCA 159

CORAM: KENNEDY J
WALLWORK J
HEENAN J

HEARD: 10 MAY 2000

DELIVERED : 9 JUNE 2000

FILE NO/S: FUL 185 of 1999

BETWEEN: STUART JAMES EARL
Appellant
AND
CHERYL LINDA STEVENSEN
Respondent

Catchwords:

Negligence - Collision between car and motor cycle - No direct evidence of negligence on part of car driver - Motorcycle driven from driveway of residence onto wrong side of road - Failure of driver of car to keep a proper lookout did not contribute to accident

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr I L K Marshall
Respondent: Mr J P T Olivier

Solicitors:

Appellant: Kakulas & Kakulas
Respondent: Talbot & Olivier

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

Jones v Dunkel (1959) 101 CLR 298
TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267
West v Government Insurance Office of New South Wales (1981) 25 ALR 437

Case(s) also cited:

Moralee v Mosey (1990) 11 MVR 65
Wheatland v Dickson (1995) 22 MVR 431
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Devries v Australian National Railways Commission (1993) 177 CLR 472
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842
Edmond v Taylor (1998) 27 MVR 158
Minshull v Pecorari [1968] WAR 59
Stewart v Carnell (1984) 2 MVR 147

KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Heenan J, with which I am in agreement.
In Jones v Dunkel (1959) 101 CLR 298, the High Court was concerned with a fatal accident claim arising out of a collision between two trucks. By a majority of three to two, the High Court found that the position and condition of the trucks after the accident, and the condition of the road at the collision site, were such as to entitle the jury legitimately to conclude that the driver of the truck which was proceeding downhill was guilty of negligence. Although Dixon CJ was one of the dissentients, based upon the facts in that case, certain principles enunciated by his Honour in his judgment are apposite. He said, at 304 ‑ 305:
"But the all important question of the cause of the vehicles hitting one another is left unresolved by the circumstantial evidence. It is possible of course to say that if you have an empty diesel truck coming down a winding road on the outside at thirty‑five miles per hour and an International truck going up the road on the inside at twenty‑five miles per hour, the former is more likely than the latter to be over the centre line of the road on its wrong side. But that is only to say that of two guesses one is more probable than another. It may be remarked that these are not the only two guesses open as to the cause of the accident. But in any case we are not concerned with a choice among rival conjectures. In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true that "you need only circumstances raising a more probable inference in favour of what is alleged". But "they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture". These phrases are taken from an unreported judgment of this Court in Bradshaw v McEwans Pty Ltd (unreported, delivered 27th April 1951) which is referred to in Holloway v McFeeters (1956) 94 CLR 470 by Williams, Webb and Taylor JJ. The passage continues: "All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from

the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood." (1956) 94 CLR, 480, 481. But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied."

Parts of this passage were cited with approval by Stephen, Mason, Aickin and Wilson JJ in West v Government Insurance Office of New South Wales (1981) 25 ALR 437, at 440 : see also TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267, at 269.
The learned trial Judge found that the respondent was driving at a speed of no more than 40 kilometres per hour and, indeed, he thought it probable that the speed nominated by her in her statement to the police, 30 kilometres per hour, was realistic. He also accepted that she was at all times appropriately positioned on the northbound part of the roadway. Those findings cannot be challenged. Nor can his Honour's refusal to accept the appellant's account of the circumstances leading up to the accident. On his Honour's findings, at the time of the impact the appellant must have been on his wrong side of the road. It would be the result of guesswork to arrive at any conclusion as to how the appellant came to be on his wrong side of the road or how quickly he was travelling in arriving at the point of impact, or what the respondent could have done to avoid the collision even if she had seen the appellant to her right.
WALLWORK J: I agree with the reasons for judgment of Kennedy and Heenan JJ and to the conclusions reached by them. There is nothing I wish to add.
HEENAN J: This is an appeal against the dismissal by his Honour Judge Wisbey in the District Court at Perth of the appellant's claim that a motor vehicle accident in which he suffered personal injury was caused by negligence on the part of the respondent.
The accident happened on the afternoon of Tuesday 18 April 1995. It was a fine and sunny but windy day. The appellant, a 49-year-old contract postman, was delivering mail in Drummond Cove, a developing residential area about 10 to 15 kilometres from Geraldton. Many of the

lots in the area were vacant but others had newly constructed houses on them. The appellant was riding his own Honda 110cc motorcycle, with the mail in a tray in front of the handle bars and in satchels fixed on either side towards the rear of the motorcycle. Shortly after 3 o'clock he was in Hillview Drive, a section of a street then known as Smugglers Pass. As he went southwards on the eastern side of the street he stopped to place mail in letter boxes, most if not all of which seem to have been situated near the verge at the front of each house. After going into the driveway of Lot 146 and stopping to place mail in the letter box there, he rode out into the street and turned into the driveway of Lot 147, the adjoining lot. He stopped by the letter box at the southern side of the driveway and placed mail in it.

In evidence, the appellant said that he then checked to his left and right along the street, noticed that there were several vehicles parked north of where he was, but was not aware of any traffic on the roadway. Then he rode out of the driveway, turned left and started to go in a southerly direction in the southbound carriageway. He went on to say, "In my peripheral vision I have caught some movement out of my left side (sic). I've glanced back at the letter box at 147 and got struck on my right leg" by the respondent's motor vehicle. From the time when he entered the roadway his motor cycle was in first gear, travelling "roughly between 5 and 8 kilometres an hour". He said that prior to the collision he was on the correct side of the road, approximately 4ft from the eastern kerb. He first became aware of the presence of the other vehicle "on impact". Later it was found that his right leg had been broken in three places.
The respondent, a 33-year-old accounts clerk, had lived in the Geraldton area for about seven years. After finishing work that afternoon she had picked up her two children from a day care centre in her station sedan and was driving it to her home, which was situated about three kilometres beyond the scene of the accident. In evidence, she said that as she was heading north on the western side of Smugglers Pass she saw a postman on a motorcycle going into Lot 146. At that time she estimated that she was "probably about 5, 6 hundred metres" away from him. Being well aware of his presence she kept her eyes on where she was going. She was travelling no faster than 40 km/h. She went on to testify, "As I travelled north up Smugglers Pass, I then saw him go into 147 and, I don't know, the next minute he was just there. Bang. Just happened." She went on to say that the appellant hit the right front light of her vehicle "and a bit down the side". She estimated that at the point of impact the left side of her vehicle was probably no more than a metre and a half from the western kerb. She "virtually stopped straightaway … probably about 4 or 5 metres up the road". She got out of her vehicle and saw the appellant lying on the road, holding his leg. She said "What the hell do you think you were doing?" And the respondent just yelled, "Get an ambulance, I've broken my leg". She then went to a house nearby and asked the occupier to call an ambulance.
As his Honour observed, the primary controversy requiring resolution at the trial was as to where on the roadway the collision had occurred. As the sealed bitumen surface was 7.4 metres wide the version of at least one of the parties as to that matter obviously was incorrect. To the police officer who attended at the scene and in her evidence at the trial the respondent said that the appellant had driven straight out across the roadway from the driveway of Lot 147. In the course of her cross-examination at the trial she said that when she saw the appellant go into Lot 147 she was near the southern boundary of that lot. When asked to indicate the point of collision she placed an X on a plan which was tendered in evidence. The mark shows the point of collision as being almost directly opposite the southern edge of the driveway. To that extent her version is in conflict not only with the appellant's version but with the evidence of independent witnesses.
Persons who lived nearby arrived at the scene shortly after the accident. They testified that when they arrived they saw mail on the roadway and a boot which, it seems, was one of the appellant's boots, near the eastern kerb just past the southern boundary of Lot 147. But they testified also that the appellant and his motorcycle then were both in the centre of the roadway and that the station sedan was between the centre of the roadway and the western kerb. A police officer who arrived shortly afterwards saw that only the right foot peg and the left hand grip of the motorcycle were damaged, although there were tyre marks or scuff marks on its rear wheel. He saw also that the right front indicator of the station sedan was broken and that there was a slight dent to the lower portion of the right front fender, as well as scuff marks to the right front tyre and scrapes on the metal rim of the wheel.
The nature of the appellant's injury and the evidence of the independent witnesses lead almost inevitably to the conclusion that the collision occurred some distance to the south of the southern edge of the driveway of Lot 147 and that the impact was to the right side of the motorcycle and the right front of the station sedan. The only reasonable inference to be drawn is that the appellant had turned left on leaving the driveway and had travelled some distance to the south before being hit.
Mr Peter Taylor, the occupier of the residence at Lot 126 Hillview Drive, which is almost directly opposite Lot 146, got a blanket and "raced down" to the scene when he heard that someone had been injured. He engaged the appellant in conversation while the latter was still lying on the roadway. The appellant told him that because it was a very windy day he had looked over his shoulder to see if the letters were still in the letter box at Lot 147 and that in doing so he "might have ventured too far out into the road".
In the course of commenting on the evidence of the respondent his Honour said:
"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."
Counsel for the appellant challenged the acceptance by his Honour of the respondent's evidence as to the position of her vehicle on the roadway at and immediately prior to the time of the collision. He submitted that her version was improbable and her evidence unreliable, whereas the version of the appellant was consistent with the objective evidence. It is significant, however, that the unreliable aspect of the respondent's evidence related to her placing the point of impact north of where it must have been. The evidence of the independent witnesses clearly supports her version that the station sedan was on the western side of the roadway at all relevant times. In relation to that aspect it was the version of the appellant which clearly was inconsistent with the objective evidence.
Having accepted the evidence of Mr Peter Taylor his Honour inferred that the appellant "moved out too far into the roadway" and went on to comment that his injury and the damage to the respective vehicles were entirely consistent with the motorcycle's turning on to the roadway in a wide arc to travel south and then making contact with the respondent's vehicle.
Earlier in his reasons his Honour stated that he did not accept the appellant's account of the circumstances leading up to the accident and then went on to say,
"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 (respondent's) vehicle. That would have required the (respondent'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 (respondent) did. It is also inconsistent with the position in which the (appellant) and his motorcycle came to rest after the accident.
The burden of the evidence establishes that the (appellant) 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 (appellant) and the cycle were, by reason of the impact, moved east of the point of impact."
At the end of his consideration of this aspect of the matter his Honour said,
"Accepting as I do the evidence of the (respondent) 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 (appellant'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 (respondent's) vehicle."
There is abundant evidence to support the finding that the accident was caused by the appellant's failure to keep a proper lookout and by his crossing on to the incorrect side of the roadway into the path of the respondent's vehicle. His Honour's conclusion that the accident was caused by negligence on the part of the appellant was unavoidable.
The main argument presented to this Court on behalf of the appellant related to the conclusion by his Honour that the appellant had "failed to establish causative negligence on the part of" the respondent. In that regard his Honour's reasons were as follows:
"I have already concluded that the (respondent) was not keeping a proper lookout, and the question is whether the (appellant) 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 (respondent) was not required to conduct herself on the basis that the (appellant) 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 (respondent) could have taken had she had him under observation."
On behalf of the appellant counsel argued that if the respondent had been keeping a proper lookout the accident would not have occurred. Having referred to the situation and nature of the damage to both vehicles and to the fact that they were both slow moving, counsel submitted that by taking only minimal evasive action - whether by sounding her horn, braking or steering her vehicle - the respondent could have avoided the collision.
The main difficulty with the argument advanced on behalf of the appellant is that, although his Honour concluded that the appellant had crossed on to the incorrect side of the roadway by "veering out in a wide arc onto Smugglers Pass", there is no direct evidence that the path taken by the appellant was in the form of a wide arc. It is, I should think, equally probable that the appellant had suddenly looked over his shoulder after riding out of the driveway, had travelled directly to the incorrect side of the road and then, while turning back to the correct side, had been hit by the station sedan. Such behaviour on his part could not reasonably have been expected by a reasonably careful motorist in the position of the respondent. If he behaved in that way, even had the respondent been keeping a proper lookout, it is quite likely that she would have had insufficient time to take even minimal evasive action. In my opinion there was insufficient evidence before his Honour to enable him to make a factual finding upon which to base a conclusion that the respondent's failure to keep a proper lookout caused or contributed to the accident.
I would dismiss the appeal.