Friedmann v Transport Accident Commission (Liability Only)
[2017] VCC 1864
•12 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-16-01486
| Joseph FRIEDMANN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMITTEE | Defendant |
---
JUDGE: | JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 November & 11 December 2017 | |
DATE OF JUDGMENT: | 12 December 2017 | |
CASE MAY BE CITED AS: | Friedmann v Transport Accident Commission (Liability Only) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1865 | |
REASONS FOR JUDGMENT
---
Subject: LIABILITY ONLY
Catchwords: Torts – Transport Accident
Judgment:Liability established and apportioned between both plaintiff and defendant, namely the responsibility of the plaintiff is assessed at 85% and the responsibility of the defendant is assessed at 15%.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In Person | |
| For the Defendant | Ms R Kaye | Transport Accident Commission |
HIS HONOUR:
1 On 5 March 2013 a collision occurred between the vehicle being driven by the plaintiff and a vehicle being driven by Mr Page in High Street Armadale.
2 By reason of the collision the plaintiff suffered injuries which are conceded by the defendant as being serious such that the plaintiff would be entitled to maintain a proceeding claiming damages against the defendant if the negligence of Mr Page in the driving of his vehicle was a cause of injury to the plaintiff.
3 The defendant denies any negligence and given the fact that the plaintiff is self-represented, the parties have agreed that liability in the proceeding should be determined as a preliminary issue with the trial as to damages to follow if necessary.
4 The evidence as to the circumstances of the collision is of short compass.
5 Immediately before the collision the plaintiff’s vehicle was parked in a street side parallel parking bay on the north side of High Street.
6 It is the plaintiff’s evidence that it was his intention to move his car from its parked position into eastbound lanes of traffic and then to proceed east along High Street.
7 It is the plaintiff’s evidence that he had parked his vehicle on the northern side of High Street to attend his gym and that the vehicle was parked in the vicinity of 1197 High Street.
8 The plaintiff described his movement onto the roadway as follows:
· his car was tightly wedged between two cars and he realised he would not be able to move from the parking spot easily;
· he activated his right hand indicator and made several manoeuvres moving his car backwards and forward to bring the nose of the vehicle clear in order to enter the roadway;
· each time he edged backwards and forward he checked his right rear vision mirror to ensure that it was clear to enter the roadway;
· when he considered it safe to do so he commenced to move his vehicle onto the roadway;
· at no time did he see Mr Page’s vehicle prior to impact;
· at the time of the impact he had moved approximately 1 ½ car lengths from the curb; and
· from the time he left the curb until the point of the collision his vehicle was travelling at approximately 2 to 3 km per hour.
9 Mr Page gave evidence that he was driving his vehicle in an easterly direction along High Street and that he had been proceeding in that direction since entering High street from Kooyong Road.
10 Mr Page said that:
(i) he was travelling at 50 to 55 km/h in an easterly direction along High Street and was concentrating and keeping a proper lookout;
(ii) he suddenly saw the plaintiff’s light coloured vehicle ahead of him;
(iii) he first observed the plaintiff’s vehicle when it was approximately a metre or two away; and
(iv) he was so close to the vehicle at the time he first observed it that he barely had time to react, commenting that he barely had time to brake and that as he braked he contacted the car “that’s how quick it was”.
11 Whilst it is the plaintiff’s evidence that immediately before the collision he was parked in the vicinity of 1197 High Street I am satisfied that the evidence establishes that he was parked further to the west in High Street, in the vicinity of 1169 High Street.
12 In making that finding I accept the photographic evidence as being definitive on that issue.
13 The photographic evidence of the point of the collision:
(i) reveals the carriageway for eastbound vehicles along High Street at the point of the collision to consist of two lanes, namely the northernmost lane containing parallel parking spaces and an adjacent lane for the movement of vehicles in an easterly direction requiring those vehicles to take a position on the roadway predominantly upon the tram tracks; and
(ii) establishes that:
· the offside of Mr Page’s vehicle was at the time of the collision some three or four feet from the centreline of High Street which divides the East bound and West bound carriageways; and
· the front bumper bar of the plaintiff’s vehicle was located virtually on that centreline his vehicle being at an approximate angle of a 60° to the centreline. For the purpose of making this description clear I will append to these reasons a copy of the relevant photograph.
14 High Street in the area of the collision is a straight road and as Mr Page proceeded in an easterly direction towards the point of collision there is no evidence to suggest that there were obstacles which prevented his ability to see the plaintiff’s vehicle, or vice versa.
15 Whilst it was put to the plaintiff that the position of his vehicle was consistent with an intention on his part to undertake a U-turn, the plaintiff adamantly maintained that at all times it was his intention to proceed in an easterly direction down High Street and it was because of the tightness of the car park from which he was exiting that his vehicle had adopted the position as demonstrated in the police photographs at the point of the collision.
16 There is no issue that in undertaking the manoeuvre in question, whether it be:
(i) a U-turn; or
(ii) a movement from a parked position to proceed east,
the plaintiff had an obligation to ensure that it was safe to move out of his car park having regard to the presence of oncoming traffic, and to give way to oncoming traffic including the Mr Page’s vehicle.
17 I am satisfied there is no issue that the plaintiff failed to comply with each of these obligations.
18 It is clear that my finding as to the point of the collision makes the plaintiff an unreliable witness as to where his vehicle was parked immediately prior to the collision, namely that the vehicle must have been parked a significant distance west of the position about which the plaintiff gave evidence.
19 It is put that this demonstrated unreliability should move me to make a finding to the effect that the plaintiff is also unreliable as to the speed of his vehicle from the time he moved from a stationary position to the point of the collision.
20 Given the plaintiff’s evidence:
· that he was moving from a confined parking space which he had difficulty exiting from; and
· that to exit that parking space he had to move his vehicle backwards and forwards on a number of occasions (about which evidence no real issue is taken),
I am satisfied that it is likely that in those circumstances the plaintiff would have exited the parking space at slow rather than fast speed.
21 For that reason, but also by reason of the fact his evidence as to the speed of his vehicle was not challenged, I am satisfied:
· that the plaintiff’s evidence as to the approximate speed at which he was travelling as he moved onto and across the roadway is most probably reliable; and
· that even making due allowance for the fact that the speed was only an estimate, the plaintiff’s vehicle was travelling at a very slow speed from the time it commenced to move out of its parked position and reached the point of the collision.
22 It is put that some weight should be accorded to the fact that the plaintiff, on having been required to re-sit his driver’s license following the collision, failed on the first occasion to obtain that license. As I understand the submission on behalf of the defendant, it is suggested that this in some way should reflect upon the plaintiff’s reliability as a witness or for that matter his competence as a driver as at the time of the collision.
23 I am not satisfied that I should accord any weight to that fact.
24 In my opinion that evidence has no more relevance than the opposite contention may have, namely that the fact that the plaintiff was subsequently issued with a licence which allows him to drive, all be it in restricted areas, should be the basis for a finding in favour of the competence of the plaintiff as a driver as at the time of his accident.
25 It is the plaintiff’s evidence that he looked to check for the presence of approaching vehicles on a number of occasions as he manoeuvred his vehicle and exited his car parking space and that on no occasion did he see Mr Page’s vehicle.
26 Whilst it is put by the plaintiff that his failure to see Mr Page’s vehicle must lead to a finding that the vehicle was not on the roadway to be seen when he looked, I accept Mr Page’s evidence that he was at all material times driving in an easterly direction along High Street and that he had been so proceeding since entering High Street from Kooyong Road.
27 It follows that I am satisfied that the plaintiff should have been able to see Mr Page’s vehicle approaching the location in which he was parked, at some time during the period between commencing to move out onto the roadway and taking up a position in which his vehicle had effectively blocked the passage of Mr Page’s vehicle as it proceeded in the eastbound right-hand lane of High Street.
28 Accordingly I am satisfied that the plaintiff either failed to look, or failed to observe Mr Page’s approaching vehicle when he did look.
29 For the reasons set out above I am satisfied that the plaintiff was in breach of the duty he owed to other road users by failing to observe Mr Page’s vehicle approach his vehicle and failing to give way to that vehicle.
30 It is Mr Page’s position that his failure to observe the plaintiff must have been caused by the plaintiff executing his manoeuvre across the roadway at a significant speed.
31 I do not find that position to be persuasive for the reasons that I have previously expressed.
32 In my opinion even if that position were to be accepted it would be unlikely that a driver keeping a proper lookout would not have been in a position to see the plaintiff’s vehicle:
(i) until it was immediately in front of him: and
(ii) was only one or two meters away
given that the vehicle had moved from a parked position on the side of the road to a position in which the front of the vehicle had reached the centreline of the road.
33 There is no evidence one way or the other as to the presence of any obstructions to Mr Page’s ability to see the plaintiff’s vehicle exiting from his parking space with its indicator on by reason of vehicles parked behind the plaintiff as he approached the point of the collision.
34 Even in the presence of such vehicles, however, given:
(i) the angle of the plaintiff’s vehicle on the roadway at the time of the collision, which satisfies me that it moved out of its car park to its right at a fairly severe angle and in so doing moved across the two eastbound traffic lanes so that it occupied a position at an angle of approximately 60° across the roadway with his bumper bar located immediately over the white centre lane;
(ii) the speed at which that manoeuvre took place which, whilst only being estimated by the plaintiff I am nonetheless satisfied was a very slow speed; and
(iii) the speed of Mr Page’s vehicle as he approached the plaintiff’s vehicle, namely at 50 to 55 km/h (between 14 - 15 meters per second),
I am satisfied that Mr Page had the opportunity to see the plaintiff’s vehicle when Mr Page’s vehicle was further away from the point of collision than one or two meters and that in failing to observe the movement of the plaintiff’s vehicle towards the point of the collision at any time other than immediately prior to the impact, Mr Page failed to keep a proper lookout.
35 For this reason I am satisfied that Mr Page was not keeping a proper lookout as he drove his vehicle in an easterly direction along High Street immediately prior to the collision and for that reason failed to see the vehicle being driven by the plaintiff as it moved out onto the roadway and into the position it occupied at the time of the collision.
36 It is the defendant’s position that any failure to keep a proper lookout on the part of Mr Page was not a cause of the plaintiff’s injury.
37 It is put on behalf of the defendant that in the absence of expert evidence as to the influence of Mr Page’s failure to keep a proper lookout upon his ability to avoid the collision it is unsafe to make any finding upon the issue of causation, namely the relevance of Mr Page’s failure to keep a proper lookout being a cause of the collision.
38 I am not satisfied that expert evidence is necessary to make such a finding in the circumstances in the present case which involves an everyday event in the movement of vehicles at speeds well appreciated by members of the community in general. In this instance I am satisfied that an application of both common life experience and common sense allows me to make a finding on this question.
39 Given the:
(i) combination of the speed of Mr Page’s vehicle as it approached the point of the collision (which was at least five times greater or more than the speed of the plaintiff’s vehicle as it moved onto the roadway), and the slow speed of the plaintiff’s vehicle as it moved across the two eastbound lanes of High Street, which in turn must have accorded Mr Page with a view of the movement of the plaintiff’s vehicle over a significant distance as Mr Page approached the point of the collision;
(ii) the point of the collision between the two vehicles which demonstrates a very substantial impact between the front of Mr Page’s vehicle and the driver’s side of the plaintiff’s vehicle with the primary point of impact involving the driver’s side door of that vehicle in the vicinity of the door handle;
(iii) The point of the collision which was a metre or so to the left of the centreline dividing the eastbound lanes from the westbound lanes;
(iv) Mr Page’s evidence which establishes that at the time of the impact there had been little if any reduction in the speed of his vehicle;
I am satisfied that the failure by Mr Page to keep a proper lookout involved negligence on his part which was a cause of injury to the plaintiff in this instance.
40 In my opinion for the reasons set out above I am satisfied that I should find both the defendant and the plaintiff responsible for the happening of the collision:
(i) the plaintiff’s responsibility arising by reason of his failure to keep a proper lookout in failing to give way to Mr Page’s vehicle;
(ii) Mr Page’s responsibility arising by reason of his failure to keep a proper lookout and to manage the speed and direction of his vehicle so as to avoid the collision;
and to apportion responsibility 85% against the plaintiff and 15% against the defendant.
---
APPENDIX 1
Photograph of accident scene. For access to this image please contact the County Court - [email protected]
0
1
0