Enviro Tippers Victoria Pty Ltd v Blandthorn
[2020] VMC 7
•17 APRIL 2020
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
CIVIL DIVISION OF COURT
Case No. H12046132
| ENVIRO TIPPERS VICTORIA PTY LTD | Plaintiff |
| ACN 099 959 056 | |
| v | |
| PATRICK BLANDTHORN | Defendant |
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MAGISTRATE: | M HOARE |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 17 MARCH 2020 |
DATE OF DECISION: | 17 APRIL 2020 |
CASE MAY BE CITED AS: | ENVIRO TIPPERS VICTORIA PTY LTD V BLANDTHORN |
MEDIUM NEUTRAL CITATION: | [2020] VMC007 |
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CATCHWORDS – Vehicle Property Damage Claim – Loss and Damage – Cost of Repairs
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APPEARANCES: | COUNSEL | SOLICITORS |
For the Plaintiff | Mr M Benkel | Hall and Wilcox |
For the Defendant | Mr Langslow | Maitland Lawyers |
HER HONOUR:
Introduction and Overview
The plaintiff Enviro Tippers Pty Ltd (‘Enviro’) claims loss and damage from the defendant Mr Patrick Blandthorn arising out of a motor vehicle collision that occurred between Enviro’s vehicle and a vehicle driven by Mr Blandthorn (‘the collision’).
At the hearing, the following facts were agreed or were not in issue:
a.Enviro was the owner of a Mack CH Fleetline tipper truck (registration number YFX164). (‘Enviro’s vehicle’). At the time of the collision, Enviro’s vehicle was being driven by Mr Arthur Roumbos, a director of Enviro.
b.Mr Blandthorn was the driver of a Mazda T4100 tray-truck (registration number BYJ045)(‘Mr Blandthorn’s vehicle’).
c.The collision occurred on 5 April 2016 at around 10:45 am on Boundary Road, Laverton North at a point between the exit ramp of the Western Ring Road and the Plummers Road intersection.
d.Enviro’s vehicle was extensively damaged as a result of the collision and was towed from the scene.
e.Quantum was agreed in respect of Enviro’s loss and damage associated with repairs to its vehicle at $29,350.50.
f.Both vehicles had been travelling on the Western Ring Road and had exited from the Western Ring Road onto the ramp for Boundary Road.
g.At the junction with Boundary Road, the ramp splits into a fork with a traffic island dividing the road, at which point vehicles turn either left or right into Boundary Road.
h.After the point at which the ramp splits into a fork, there is a single lane only for traffic turning left into Boundary Road. The raised traffic island is extended on its left-hand side by a painted traffic island signified by wide white lines across the bitumen.
i.The intersection between the left-hand turn lane of the ramp and Boundary Road is governed by a give way sign.
j.The stretch of Boundary Road between the ramp and the Plummers Road intersection widens from two lanes into a four-lane carriageway. The far-right lane is for vehicles turning right into Plummers Road, two lanes proceed straight ahead, and the far-left lane is for vehicles turning left into Spencer Street.
k.From the ramp, both vehicles took a left turn into Boundary Road east towards the intersection with Plummer Road and Spencer Street.
l.Once on Boundary Road, both Mr Roumbos and Mr Blandthorn were intending to turn right into Plummers Road.
m.Following the collision, police were called to the scene and arranged for the drivers to exchange contact details.
Enviro alleges the collision occurred as a consequence of Mr Blandthorn’s negligence which he denies. Mr Blandthorn in turn alleges that the collision occurred as a result of the negligence and deliberate trespass of Mr Roumbos.
This matter was a factual dispute as to liability.
Oral evidence was given for the plaintiff by Mr Roumbos and by his wife Mrs Anna Roumbos who was travelling in her own vehicle in the vicinity of the collision. Mr Blandthorn gave the only oral evidence for the defendant. At the time of the collision, Mr Blandthorn had a passenger in the front passenger seat, Mr Ronald Keith Hanson, an elderly man since deceased who was not related to Mr Blandthorn. Various photographs of the road configuration and of the damage to Enviro’s vehicle that had been taken by Mr Blandthorn and by Mrs Roumbos were tendered in addition to other documents.
The Plaintiff’s Case
Mr Roumbos’ evidence
- By way of background only, at the time of the collision, Mr Roumbos was driving Enviro’s vehicle to an automotive workshop for the purpose of obtaining a roadworthiness certificate. Mr Roumbos said this related to minor issues such as a defective seatbelt and an under-inflated tyre which had been rectified before the collision. On attending the scene of the collision, police issued Mr Roumbos with an infringement notice due to Enviro’s vehicle being unregistered as the certificate of roadworthiness not yet been issued post the rectification.
In essence, Mr Roumbos’ evidence was as follows:
a.Mr Blandthorn’s vehicle was stationary in front of his (Enviro’s) vehicle at the intersection of the left-turn lane of the ramp and Boundary Road facing the give way sign. Mr Roumbos formed the view Boundary Road was clear of traffic and, as Mr Blandthorn remained stopped, he had beeped his horn.
b.Mr Roumbos remained behind Mr Blandthorn’s vehicle.
c.In cross-examination, he denied that, in addition to beeping his horn, he had moved his vehicle from behind Mr Blandthorn’s, driving onto the painted section of the traffic island next to Mr Blandthorn’s vehicle and yelled out at him.
d.Once in Boundary Road, Mr Roumbos moved across to the right lane heading into the far right-turn lane in order to turn right into Plummers Road.
e.Mr Blandthorn’s vehicle then pulled in front of Enviro’s vehicle and in doing so, failed to give way as he moved into the right-turn lane of Boundary Road causing the collision between the bonnet and part of the cabin of Enviro’s vehicle with the rear of the tray of Mr Blandthorn’s vehicle.
f.Mr Blandthorn’s driving was described as scary and erratic
The defendant tendered a sworn answer of Mr Roumbos to the defendant’s interrogatory that it submitted was an admission of fault. Subsequent communication between the solicitors was also tendered to the effect that the plaintiff’s answer was an error on the part of the solicitors.
Mrs Roumbos’ evidence
Mrs Roumbos, a bookkeeper employed by Enviro, was travelling behind Enviro’s vehicle headed to the same destination, so that Mr Roumbos would have transport after he dropped off the vehicle at the workshop.
10.Her evidence was as follows:
a.At the intersection of the left-hand ramp and Boundary Road, hers was the third car behind Mr Roumbos’ truck. She could not see why the traffic was not moving. She then heard a beeping sound after which the traffic began to move into Boundary Road. She was unable to say who was beeping the horn.
b.In cross-examination, she said she did not observe Enviro’s vehicle move out of the line of traffic onto the painted section of the traffic Island.
c.Once on Boundary Road, she observed Enviro’s vehicle moving into the right-hand lane of Boundary Road in preparation for the right-hand turn into Plummers Road.
d.She did not have a clear line of sight of the collision but observed the bonnet of Enviro’s going up following the impact.
e.Mrs Roumbos took photographs then drove her car around in front of both vehicles and parked her car. Mr Roumbos and Mr Blandthorn were seen arguing prior to the police arriving at the scene.
The Defendant’s Case
Mr Blandthorn’s evidence
11.By way of background, Mr Blandthorn, a carpenter by trade, was, at the time of the collision, carrying a load of scrap metal for delivery to a metal-recycling depot in Plummers Road. Mr Blandthorn said that, at around the period of the collision, he was travelling on this stretch of Boundary Road doing such deliveries 3 to 4 times per week and he therefore knew the road and intersections well.
12.In essence, Mr Blandthorn’s evidence was as follows:
a.Whilst he was stationary at the left-hand turn lane of the ramp onto Boundary Road waiting for traffic to clear, he observed Enviro’s vehicle behind him and heard its horn beep. He then saw Enviro’s vehicle pull out from behind him and move illegally next to his vehicle onto the painted section of the traffic island. He heard Mr Roumbos yelling at him.
b.In cross-examination, Mr Blandthorn denied there was insufficient room for Mr Roumbos to manoeuvre his truck out from behind his vehicle onto the painted traffic island.
c.Mr Blandthorn proceeded into Boundary Road. About eight or nine meters into Boundary Road, Enviro’s vehicle collided heavily with the rear of Mr Blandthorn‘s vehicle striking the steel tray of the truck with the left side of its bonnet and cabin.
d.Mr Roumbos had deliberately rammed his vehicle with his vehicle. Enviro’s vehicle then pushed Mr Blandthorn‘s truck some 60 meters along Boundary Road until both vehicles became stationary in the far-right turn lane of Boundary Road.
e.Mr Blandthorn had his brakes applied the whole time.
f.After both vehicles came to a halt, Mr Roumbos approached Mr Blandthorn’s vehicle, pulled open the driver’s door and yelled at him for several minutes.
g.In cross-examination, Mr Blandthorn agreed that the damage to his vehicle was minimal whereas the front left-hand side of Enviro’s vehicle was extensively damaged including bonnet being tilted and twisted upwards.
h.Mr Blandthorn’s vehicle sustained minor damage to the tray. He subsequently sold his vehicle without having the minor damage repaired.
i.In cross-examination, Mr Blandthorn denied having pulled in front of in Enviro’s vehicle in Boundary Road failing to give way.
j.Mr Blandthorn said that his version of events was supported by the set of double skid-marks matching his rear tyres on Boundary Road visible in one of the photographs tendered by him.
Evidence of Mr Hanson
13.The late Mr Ronald Keith Hanson was a front-seat passenger in Mr Blandthorn’s vehicle at the time of the collision and therefore an eyewitness. His statement dated 24 September 2017 was tendered by consent under s.63 of the Evidence Act 2008 (Vic). Mr Hanson stated Mr Roumbos was yelling at Mr Blandthorn at the intersection of the ramp and Boundary Road and that he manoeuvred his vehicle onto the painted traffic island. He stated that Enviro’s vehicles collided with the rear of Mr Blandthorn’s vehicle and pushing it along Boundary Road.
14.The statement, witnessed by Mr Hanson’s niece, was made some 17 months after the collision, prior to Mr Hanson’s death. The witness to the making of the statement was not called in relation to its authenticity.
Analysis
15.In weighing up the whole of the evidence before me, on the balance of probabilities, I prefer the defendant’s version of the collision as being more likely.
16.The credit of Mr Roumbos and of Mr Blandthorn was central to the determination of this factual dispute.
17.Mr Blandthorn impressed as a straight-forward and honest witness and his evidence was delivered in a way I found to be frank. On the other hand, based on his evidence as a whole including his overall demeanour in the witness box, I was not satisfied that Mr Roumbos’ evidence was credible. He was not an impressive witness and I was not persuaded his evidence was a factual account of the collision.
18.I attribute limited weight to the evidence of Mrs Roumbos given that, as an employee of Enviro and the wife of Mr Roumbos, she was not an independent eyewitness. Importantly, also, she was not in a position such that she had a line of sight of the collision itself.
19.Mr Hanson’s evidence was untested by cross-examination and therefore necessarily of limited weight. On balance, I accept it as likely to be accurate representation of Mr Hanson’s recollection of events.
20.Assessing the whole of the material before me in particular the oral evidence and the tendered photographs, I make the following findings of fact:
a.As a frequent user of the stretch of road on which the collision occurred, Mr Blandthorn was familiar with the need to move to the right-hand lane of Boundary Road immediately upon turning left from the ramp in preparation for executing a right-hand turn at Plummers Road.
b.Mr Roumbos demonstrated impatience, in beeping his horn and yelling, with Mr Blandthorn for not proceeding more quickly at the intersection of the exit ramp with Boundary Road. Mr Roumbos moved Enviro’s vehicle onto the painted traffic island in order to get a head of the line of traffic - including Mr Blandthorn’s vehicle - that was waiting to turn left into Boundary Road.
c.Based on the respective makes and models of the two vehicles, as supported by the photographs, Enviro’s vehicle was considerably larger and heavier than that of the Mr Blandthorn.
d.Once on Boundary Road, Mr Roumbos, in his hurry, either negligently or recklessly collided with the rear tray of Mr Blandthorn’s vehicle. Having struck Mr Blandthorn’s vehicle and in doing so damaging his own vehicle, Mr Roumbos either became so enraged that he wilfully pushed Mr Blandthorn’s vehicle along the road or he was reckless in doing so until both vehicles came to a stop in the right-hand turn lane.
e.The extensive damage to Enviro’s vehicle is explained by the bonnet and cabin of it coming into contact with the steel tray of Mr Blandthorn’s vehicle which was carrying a load of scrap metal.
21.For completeness, I add that the issue relating to Enviro’s vehicle being without a roadworthy certificate had, in my opinion, no bearing on the accident and was irrelevant to my determination. Whilst photographs demonstrated a double line of tyre skid-marks on the road leading to where Mr Blandthorn’s vehicle became stationary, I would also add that I am not persuaded the skid marks necessarily support one version or the other.
Conclusion
22.For the reasons outlined, I find in favour of the defendant.
23.Parties are invited to make oral or written submissions in relation to costs and ancillary matters and/or to file minutes of consent.
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