Eccles v Lane

[2022] WADC 105

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   ECCLES -v- LANE [2022] WADC 105

CORAM:   PRIOR DCJ

HEARD:   28-29 SEPTEMBER 2022

DELIVERED          :   6 DECEMBER 2022

FILE NO/S:   CIV 1705 of 2018

BETWEEN:   GLENN MICHAEL ECCLES

Plaintiff

AND

DANIEL JAMES LANE

Defendant

Catchwords:

Negligence - Motor vehicle accident - Liability only - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA), s 5B, s 5K

Result:

Judgment for the plaintiff
Liability apportioned 90/10 in favour of the plaintiff

Representation:

Counsel:

Plaintiff	:	Mr J R Brooksby
Defendant	:	Mr D R Clyne

Solicitors:

Plaintiff	:	Kuscevich & Associates
Defendant	:	Mills Oakley

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

Vines v Deegan (1995) 21 MVR 113

PRIOR DCJ:

Introduction

1. The plaintiff's claim is for damages for personal injuries he sustained in a motor vehicle accident which occurred at approximately midday on Sunday, 20 November 2016.

2. The quantum of the plaintiff's damages has been agreed and the matter comes before the court only on the question of liability.

The accident

1. The plaintiff was driving a Ford Ranger utility north on Great Northern Highway, Bindoon.  He had intended to go to the Bindoon Bakery but missed the turnoff (to the left) and proceeded north to a point where he was able to turn around.

2. As the plaintiff was turning right, his vehicle was struck by a road train driven by the defendant.

3. The plaintiff alleges that the collision was caused by the negligent driving of the defendant.  The defendant denies negligence and alleges that the collision was caused wholly, or in part, by the negligence of the plaintiff.

4. The negligence alleged against the defendant is particularised in the amended statement of claim as follows:

   PARTICULARS OF NEGLIGENCE OF THE DEFENDANT

   i.Driving too fast in the circumstances.

   ii.Failing to keep any or any proper lookout.

   iii.Failing to sound his horn to warn the Plaintiff of the presence of the Defendant's vehicle.

   iv.Passing/overtaking the Plaintiff's vehicle notwithstanding the Plaintiff's vehicle was indicating its intention to make a right turn.

   v.Crossing over into the south-bound lane in order to effect a passing manoeuvre when it was unsafe to do so.

   vi.Failing to brake, slow down or otherwise control his vehicle so as to avoid colliding with the Plaintiff's vehicle.

5. The plaintiff's case is that he indicated to turn right for a distance of 50 m before commencing a right-hand turn onto the apron of a vacant shop.  His vehicle was just to the left of the centre of the road when he commenced the turn.

6. The defendant's position is that the plaintiff in fact indicated to turn left and moved in that direction before attempting to make a U-turn across without giving way to the defendant's vehicle.

7. The defendant denies that he was negligent and says that the accident was caused wholly, or in part, by the plaintiff's own negligence particularised in the defence as follows:

   Particulars of Plaintiff's Negligence

   …

   4.1he turned his vehicle into the path of the Defendant's Vehicle when it was unsafe to do so;

   4.2after indicating to the left, pulling over and slowing down, he suddenly and without warning executed a right hand turn or u‑turn from the left hand side of the road;

   4.3he failed to properly signal his intention to other drivers before executing a turn;

   4.4he failed to check each of his rear view mirrors, right wing mirrors and blind spot before executing a turn;

   4.5he failed to wait for the Defendant's Vehicle to pass before carrying out a u-turn, when he knew or ought to have known that the Defendant's Vehicle was behind him;

   4.6he failed to keep any or proper lookout.

8. The defendant was driving a Kenworth prime mover with a pair of tanker trailers approximately 22.5 m long, with a total mass of approximately 96 tonnes.

9. At the point at which the accident occurred, the highway comprised only two lanes, one heading north and one heading south.  The lanes were marked with a double white line.  The western line was 'broken', the eastern line was 'solid'.

10. The configuration of the white lines on the road allowed traffic travelling in a northerly direction to cross the lines in order to overtake if it was otherwise safe to do so.  The road at the point of impact was straight.

11. The speed limit in the area where the accident occurred was 60 km per hour.

Evidence of the plaintiff

1. Mr Eccles, the plaintiff, is a 62-year-old, self‑employed electrician.

2. He gave evidence that after missing the turnoff in Bindoon, he continued driving along the highway until he found a suitable place to turn around.  He continued to drive north, out of Bindoon.

3. Approximately 50 m after the highway straightened, he noticed a disused shop and forecourt driveway on the right side of the highway.  The driveway had a 20 m apron leading into it.  He recognised this shop from previous visits.  He annotated exhibit 1 to indicate the location, the shop, the apron and the driveway.

4. Mr Eccles said he intended to turn right across the highway, using the driveway to turn around and drive back to Bindoon.  He indicated right for approximately 50 m and drove adjacent to the white line on the highway.

5. Mr Eccles gave evidence he placed his foot on the brake, released the clutch and proceeded to turn right.  At this point he was struck from behind, immediately smashing the windscreen of his vehicle.

6. Prior to turning, Mr Eccles said he did not see any vehicles in his rear‑view mirror.

7. Mr Eccles in his evidence stated he had not activated his left indicator at any time, nor had he positioned his vehicle on the gravel hard shoulder to the left of the highway.  He confirmed this had not occurred in cross‑examination.

8. Mr Eccles in cross‑examination estimated his speed to be approximately 30 km per hour in Bindoon.  He then increased his speed to 40 km per hour and slowed down to 20 km per hour as he approached the driveway on the right.

9. In cross‑examination Mr Eccles conceded he saw the other vehicle in his rear‑view mirror about 50 m past Learners Way.  He stated Learners Way was about 100 m to 150 m from where the accident occurred.  The other vehicle was 100 m to 150 m behind him. 

10. Mr Eccles said after he decided to turn into the driveway he looked in his rear-view mirror and never saw the truck.  He was certain he did this.  He thought the truck may have turned off to the side or something. 

11. Mr Eccles said in cross-examination he never saw the truck in his right‑hand mirror and he never saw the truck on the other side of the road trying to pass him before the accident. 

12. Mr Eccles in cross-examination stated he was intending to do a right‑hand turn when he was impacted by the defendant's vehicle.  He denied going onto the wide left-hand gravel shoulder with his left hand indicator on until he found somewhere to turn around and then swinging to the right to do a U-turn.

13. After the crash, Mr Eccles was approached by a female witness to the accident.  He accepted in cross‑examination that he told her he was doing a U-turn.

14. I am satisfied there is not a significant inconsistency between Mr Eccles describing what he was doing or intending to do, as a 'right‑hand turn' in his evidence or 'a U-turn' as he commented to the female witness at the accident scene. 

15. To execute a U-turn, a right-hand turning movement is initially required.  Both descriptions of what Mr Eccles was doing with his motor vehicle before the collision are consistent with his ultimate intention to drive back to Bindoon.  Neither of these descriptions is consistent with the description of 'a hook turn'.

Evidence of Stephen Richard Good

1. Mr Good is a 57‑year‑old boilermaker who was the only passenger in Mr Eccles' vehicle.  He is a friend of the plaintiff.

2. Mr Good's evidence generally corroborated Mr Eccles' evidence insofar as the movements of their vehicle prior to the crash were concerned.

3. Mr Good said Mr Eccles drove between 500 m ‑ 750 m out of Bindoon before arriving at a turn at an old shop.  Mr Good said to Mr Eccles, 'We can pull in here to this old shop.  There's a driveway there.  We could turn right into there, turn round and go back'.

4. Mr Good heard, but did not see, Mr Eccles activate his indicator.  He said Mr Eccles' vehicle was positioned right beside the white line in the middle of the highway when he heard Mr Eccles activate his indicator.

5. Mr Good stated that as they began to turn, they were hit to their right side by something.

6. The vehicle then spun around four to five times before stopping approximately 50 m ‑ 60 m farther up the highway.

7. Once the vehicle stopped, Mr Good said he was able to exit the vehicle without assistance.

8. In cross‑examination, Mr Good denied the vehicle he was in was on the left-hand gravel shoulder and stated the vehicle was right beside the white line.  Mr Good was firm in his evidence as to this fact.

9. Mr Good conceded in cross-examination he was unable to see which way the indicator was put on by Mr Eccles.

10. Mr Good said in cross-examination the vehicle he was in slowed down for approximately 25 seconds before the turn.  

11. He stated that the vehicle was less than half a metre into the turn when the impact between the two vehicles occurred.

12. Mr Good was not asked whether he had seen Mr Eccles look at his mirrors at any stage before the accident.

Evidence of the defendant

1. Mr Lane, the defendant, is a 48‑year‑old truck driver who lives in Geraldton.

2. He was employed as a truck driver and was driving the Kenworth in the course of his employment.  Mr Lane stated he had been driving trucks for 25 years, mainly trucks with dangerous goods.

3. On the day of the crash, Mr Lane was travelling from Coogee to Karara Mine at Perenjori.  His journey took him through Bindoon.  He had stopped at the Chichester Highway House for approximately 25 minutes before driving through Bindoon.  The Chichester Highway House is approximately 15 km ‑ 20 km south of Bindoon.

4. Mr Lane gave evidence he was driving just under 60 km per hour through Bindoon as there were a lot of pedestrians.  After he left Bindoon, he saw a utility vehicle (ute) driving at a slow speed ahead of him.  It was approximately 50 m in front of him, travelling at 40 km ‑ 45 km per hour.

5. Mr Lane said the ute indicated left and turned onto the gravel shoulder to the left of the highway.  The ute was completely off the highway.  It reduced its speed to close to walking pace.  The driver's side window was down.  There were two passengers in the vehicle, both looking right.

6. Mr Lane moved his truck slightly right, towards the white line in the middle of the highway, to give the ute more space.  The ute turned in front of Mr Lane's vehicle, causing him to slam on the brakes as hard as he could and he turned the steering wheel right to avoid a crash.  At this point, Mr Lane thought he was driving at approximately 60 km per hour.

7. The left corner of the bull bar of Mr Lane's truck collided with the front of the driver's door of the ute, approximately where the driver's knee would have been.

8. The crash occurred on the white line in the middle of the highway.

9. After the crash, Mr Lane stopped his vehicle.  He checked on the driver of the ute, who was conscious and did not have any obvious injuries.  The passenger had already exited the ute.  Mr Lane returned to his vehicle and called emergency services.  He noticed that the ute still had its left indicator on after the emergency services had arrived about 15 minutes after the accident.

10. The weight I give to the evidence of Mr Lane that the left indicator was on Mr Eccles' vehicle after the collision of the vehicles is limited, given the significant impact to Mr Eccles' vehicle and the likelihood of body movement of the two occupants.

11. In cross-examination Mr Lane said that he first noticed Mr Eccles vehicle about 150 m - 200 m from the accident location.  Mr Lane stated he was travelling about 50 m behind Mr Eccles' vehicle and he estimated that vehicle's speed as 40 km per hour to 45 km per hour. 

12. Mr Lane admitted in cross-examination that in the statement he made to the police on the date of the accident, the vehicle in front of him began to travel at a slow speed for 50 m on the left side of the road and at a walking pace before it 'hooked a right turn'.[1]  In cross‑examination Mr Lane then said it was a U‑turn not a hook turn.  What Mr Lane described in his evidence‑in‑chief (at [45] and [46]), also at par 13 of exhibit 9, is more consistent with the description of a vehicle executing a hook turn.  I note at pars 14 and 15 of exhibit 8, Mr Lane describes the movement of Mr Eccles' vehicle as 'a U-turn'.  The expression U‑turn is also used in exhibit 7.

    [1] Exhibit 8.

13. Mr Lane accepted in cross-examination that he signed an insurance claim document for the damage to the vehicle he was driving.  He also drew a diagram of the accident on that document.[2]  He admitted he had drawn Mr Eccles' vehicle to the left-hand side of the road.  In his evidence he then stated Mr Eccles' vehicle moved at 45 degrees to the centre of the white line.  He accepted figure 7 of exhibit 5 accurately reflected the angle of the two vehicles at the point of impact.

    [2] Exhibit 7.

Evidence of Natalie Homewood

1. Ms Homewood was an independent witness to the crash.  She was travelling home from Perth with a tandem horse float attached to her Nissan Navara ute.  Her children were in the vehicle.

2. Ms Homewood gave evidence she turned onto Great Northern Highway from Gray Road after a truck passed her.  The truck was approximately 70 m in front of her heading north by the time she reached her full speed, which was approximately 50 km per hour.  She then saw the truck brake heavily.  Smoke came from the tyres of the trailer and the truck crossed into the right hand or onto the southbound lane still facing north.

3. Ms Homewood did not see the collision as her view was obstructed by the truck.

4. Prior to the crash, Ms Homewood gave evidence she did not see the vehicle that was hit by the truck.  She said her vision was blocked by the truck's trailers.

5. She said she would not have been able to see the vehicle if it had pulled onto the gravel shoulder to the left of the highway.

6. Ms Homewood gave evidence she pulled over past the crash site.  She told her children to remain in the vehicle.  She called emergency services while approaching the crash scene.

7. The passenger of the vehicle that had been hit by the truck was already out of the vehicle.  The driver was stuck in the vehicle.  He was conscious.  Ms Homewood asked him what had happened and he replied, 'I just tried to do a U-turn'.  Ms Homewood then said she went and spoke to the truck driver who was Mr Lane.

8. Ms Homewood said that when the truck braked heavily it was still in the northbound lane on the highway.

9. In cross-examination Ms Homewood said she thought initially there had been a head-on collision because she had not seen the ute until she saw it spinning, 'doing a 180'. 

10. Ms Homewood said in cross-examination prior to the accident she did not see the ute on the left-hand side on the hard shoulder.

11. The evidence of Ms Homewood does not assist me in making a factual finding as to the movement of Mr Eccles' vehicle before the collision occurred.

Evidence of expert witnesses Robert Davey and Daniel Simms

1. The plaintiff called Mr Robert Davey and the defendant called Mr Daniel Simms.  Each has qualifications and experience in road traffic accident reconstruction.

2. The experts' reports and letters were tendered as exhibits.[3]  Both experts based their opinions on photographs taken by the police officers of the accident scene on the day of the accident,[4] photographs taken by police officers of damage to the two vehicles,[5] photographs taken by Mr Davey of the accident scene on 19 November 2019,[6] a Google Earth aerial photograph of the accident location dated 28 October 2018[7] and various witness statements.

   [3] Exhibits 5, 6, 9, 10 and 11.

   [4] Exhibit 3.

   [5] Exhibit 5, Appendix 1.

   [6] Exhibit 2.

   [7] Exhibit 1.

3. Each expert was provided, at a later time, with GPS data from the defendant's truck to assist in ascertaining the speed it was travelling.[8]

   [8] Exhibit 4.

4. Each agreed there were no pre-impact markings on the road made by either vehicle.  The focus of their expert evidence was the positioning of the respective vehicles at the point of impact.  Both experts generally agreed that Mr Davey's calculated positioning of the two vehicles at the immediate post‑impact based on tyre marks was consistent with both the plaintiff or the defendant's version of events of the movement of the two vehicles before impact.  Mr Davey's estimate of the immediate post‑impact position of both vehicles is depicted in figure 7 of exhibit 5.

5. In the conclusion to Mr Davey's report which is exhibit 5, he states:

   8.3The difference in heading between the vehicles at impact (approximately 20^o-25^o) suggests that the Ford was in the process of turning right from the northbound lane (see Figure 7).

   8.4The forensic evidence does not allow for a definitive answer to be provided as to whether the Plaintiff was in the process of conducting a U-turn as alleged by the Defendant.  However, the angle between the vehicles at impact does not support a proposition that the Ford was perpendicular (or anywhere close to) to the road train at impact as perhaps might be expected if the vehicle had pulled onto the gravel shoulder intending to turn 180^o to travel south ('hook turn') as stated or implied in various documents (diagram Defendant's Crash Report Form, ICWA Liability Advice, the filed Defence).

   (emphasis added)

6. Mr Davey confirmed in his evidence-in-chief that the impact between the two vehicles was angled, not perpendicular, and more than a glance.  This opinion was based on his analysis of the tyre marks of both vehicles after impact.

7. Mr Davey was unable to find any evidence on the highway to indicate the defendant's vehicle braked before impact, but accepted that it may have done so.  He saw nothing on the roadway to indicate when the defendant took evasive action.  He did not know whether the speed of the defendant's vehicle had causative effect on the accident happening.

8. Neither expert could make any firm assessment of where the vehicles were before the collision.  They agreed the representation of immediate post impact position of both vehicles in figure 7 of exhibit 5 does not assist in any assessment of the movement of the plaintiff's vehicle before impact.  They could not determine therefore whether the plaintiff's vehicle was doing a right turn, U-turn or hook turn before impact with the defendant's vehicle.[9]

   [9] ts 50, ts 62, ts 88 - ts 90.

9. Mr Simms described a U-turn or a right turn as effectively the same thing as one moved from 90 degrees to 180 degrees.

10. Both experts agreed that based on the GPS data, the defendant's vehicle was exceeding the 60 km per hour speed limit at the time of impact.  The experts gave evidence that the exact speed the defendant's vehicle was travelling before impact needed to be considered in light of:

    (a)driver reaction time;

    (b)deceleration of the vehicle at point of impact by braking; and

    (c)margins of error in the GPS data itself or latency in the deviation between the GPS calculated position and the actual position of the GPS receiver.

11. Both experts agreed exhibit 4 indicates generally the speed of the defendant's vehicle at the point of impact was 68.5 km per hour.  Giving proper weight to the factors I have referred to in [74], I am satisfied the defendant's vehicle was travelling at least 68.5 km per hour at the point of impact.  I find the defendant was therefore exceeding the speed limit of 60 km per hour well before he took any form of evasive action to avoid collision with the plaintiff's vehicle. 

Principles

1. The principles governing a claim in negligence between two motor vehicles are derived from common law and the Civil Liability Act 2002 (WA) (CLA). The relevant sections of the CLA that apply to this case in relation to the parties' duty of care and any contributory negligence of a party are s 5B and s 5K.

1. The onus of proof to establish the negligence of the defendant is on the plaintiff.  The standard of proof is the balance of probabilities.[10]

   [10] CLA s 5D.

2. The principles that apply in cases of this kind were conveniently stated by the Court of Appeal of the Supreme Court of Queensland in Vines v Deegan[11] by Macrossan CJ:

   The fundamental duty of every driver of a vehicle is to drive at a safe speed and to keep a proper lookout.  In the case of a following vehicle the duty is to travel at such a speed and at such a distance behind the vehicle ahead as in the circumstances to enable the driver of that following vehicle to pull up or take other evasive action in the case of an emergency.  As recently as 1988 the duty of doing so was recognised by the High Court in Braund v Henning (1988) 7 MVR 97; 79 ALR 417. While emphasising the limited value of earlier decisions in the circumstances of particular cases, their Honours accepted that:

   'The driver of a following vehicle which collides with the vehicle which is ahead of it is usually held primarily liable for the consequences of the collision.'

   [11] Vines v Deegan (1995) 21 MVR 113 [117].

3. Every case is different.  The factual circumstances and findings of a particular case may justify a different result.  In this case, the key factual issue in dispute was the plaintiff's manner of driving before the collision.    

Disposition

1. Both parties' counsel in opening and closing submissions submitted that the resolution of this trial will be largely dependent on credibility findings of the eyewitnesses.  Both submitted that the expert evidence is of limited assistance as to how the collision occurred.  I agree.

2. The plaintiff's counsel submitted even if the defendant's version of events leading up to the collision was accepted, the defendant was still negligent in his driving as he was exceeding the speed limit before the impact and should have driven in a defensive manner before the impact with the plaintiff's vehicle.

3. In closing, the defendant's counsel submitted that the collision was caused by the plaintiff's own negligence, and in the alternative, the plaintiff on the evidence, has failed to prove the negligence of the defendant in causing the collision.

4. The evidence of Ms Homewood and the two experts does not assist me in the resolution of this case.  Nothing in their evidence satisfies me that either the plaintiff's or defendant's evidence of the movement of the plaintiff's vehicle before the accident is more plausible.

5. Although Mr Good cannot be described as an independent eyewitness, I found his evidence to be credible, consistent and reliable.

6. The evidence of Mr Good generally corroborates the plaintiff's account that he was in the process of executing a right-hand turn to return back to Bindoon before the collision occurred.  This evidence is in direct contrast to the defendant's evidence of the plaintiff's driving referred to at [45] and [46].  There is no other evidence which supports this version of the movement of the plaintiff's vehicle before impact.  I prefer the evidence of the plaintiff and Mr Good.  I do not accept the defendant's evidence that the ute moved to the left and onto the shoulder before moving to the right in front of him.  I find his evidence as to the movement of the plaintiff's vehicle implausible.  The reason for the plaintiff's turn was to return to where he had intended to stop in Bindoon.  I accept that the plaintiff intended to turn right into the apron of a shop premises to do so.  It was not necessary in order to do that, that he move his vehicle left onto the shoulder as the defendant said. 

7. On the basis of the evidence of the plaintiff and Mr Good, I find that the plaintiff, whilst travelling north on the highway past Bindoon, decided to turn right into a disused shop front area to then be able to turn around and travel back to Bindoon.  The plaintiff indicated to turn right and moved adjacent to the white line on the highway to execute the right turn.  As the plaintiff proceeded to turn right, the defendant's vehicle struck his vehicle.  

8. I find the defendant was exceeding the 60 km per hour speed limit at the time.  The defendant failed to see the plaintiff indicate and move his vehicle to the centre of the highway.  The defendant then steered his vehicle to the oncoming lane in an attempt to avoid a collision with the plaintiff's vehicle.  I am unable to find whether the defendant braked before the collision.  The front left-hand corner of the defendant's vehicle then impacted with the plaintiff's vehicle on the driver's side. 

9. I am satisfied that the defendant's failure to keep a proper lookout and excessive speed caused the collision of the two vehicles. 

10. Given the size of the defendant's vehicle I am of the view if the plaintiff had looked in his rear-view mirror as described in [23] he should have seen the defendant's vehicle approaching at speed on a straight stretch of highway.  I therefore do not accept the plaintiff's evidence that he looked in his rear-view mirror before he decided to turn right. 

11. I am therefore satisfied there was negligence on the plaintiff's behalf which causally contributed to the collision.  I consider the plaintiff's failure to check his mirrors before executing his right-hand turn breached the standard required of a reasonable driver in the circumstances.  Had the plaintiff seen the defendant's vehicle approaching he may have continued further down the highway before turning right.  I find the failure by the plaintiff to check his mirrors contributed to his injuries by failing to take reasonable care for his own safety. 

12. On the basis of the findings I have made in respect of the manner of driving of each party, I consider liability therefore should be apportioned 90/10 against the defendant.

13. The plaintiff on the balance of probabilities, has proved the defendant drove negligently and caused the collision with the plaintiff's vehicle.  Had the defendant kept a proper lookout and been driving at a safe speed the collision could have been avoided.  I am satisfied on the evidence the plaintiff gave adequate indication of his intention to turn right, slowed his speed and moved appropriately to the centre of the highway. 

14. Accordingly, I find that the plaintiff is entitled to judgment against the defendant for 90% of his damages as already agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

RR

Associate to Judge Prior

6 DECEMBER 2022