Gage v Van Der Veen - [2009] WADC 95

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GAGE -v- VAN DER VEEN [2009] WADC 95

CORAM: MARTINO DCJ

HEARD: 16 JUNE 2009

DELIVERED : 8 JULY 2009

FILE NO/S: CIV 1071 of 2008

BETWEEN: MATTHEW JOHN MCLEAN GAGE
Plaintiff
AND
TOM VAN DER VEEN
Defendant

Catchwords:

Torts - Negligence - Car accident - Duty of care owed by drivers of vehicles - Apportionment of liability

Legislation:

Nil

Result:

Judgment for plaintiff for 25 per cent of damages to be assessed

Representation:

Counsel:

Plaintiff: Mr R R Cywicki
Defendant: Ms P A Moore

Solicitors:

Plaintiff: Simon Walters
Defendant: Lavan Legal

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

Alexander v Manley (2004) 29 WAR 194
Manley v Alexander (2005) 80 ALJR 413
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Pennington v Norris (1956) 96 CLR 10

MARTINO DCJ: On Wednesday 7 February 2007 at approximately 9.30 am a utility being driven by the plaintiff, Mr Gage, was involved in a collision at the intersection of Oceanic Drive and West Coast Highway, City Beach with a car being driven by the defendant, Mr Van Der Veen. Mr Gage alleges that the accident was caused by Mr Van Der Veen's negligent driving and claims damages for personal injuries he alleges he suffered in the accident. Mr Van Der Veen denies that he was negligent and alleges that the accident was caused by Mr Gage's negligent driving. On 25 March 2009 Deputy Registrar Hewitt ordered that there be a trial of the issue of liability.
Prior to entering the intersection both Mr Gage and Mr Van Der Veen were travelling west on Oceanic Drive. The weather was fine and visibility good.
As it approaches the intersection Oceanic Drive has four lanes. The lane on the left side of the road is for traffic turning left into West Coast Highway. That lane was called lane one in the pleadings and at the trial. The next two lanes (lane two and lane three) are for traffic continuing along Oceanic Drive. The final lane (lane four) is for traffic turning right into West Coast Highway. The intersection is controlled by traffic lights. The speed limit on Oceanic Drive is 70 kilometres an hour.
For a vehicle travelling west on Oceanic Drive there are pedestrian islands to the left of lane one and to the right of lane four, past the white line on Oceanic Drive that marks the commencement of the intersection. A vehicle turning right or left onto West Coast Highway must pass these islands, which end approximately one to two car lengths past the white line, before turning into West Coast Highway.
At the time of the accident Mr Gage was employed as a pest control technician. He normally commenced work at 7.00 am and finished at 12.00 noon or 1.00 pm. His duties on the day of the accident were to carry out inspections of houses for termite activity. He was driving his employer's white Holden Rodeo utility. On the tray of the utility there were a generator, a pump, two hoses, two tanks and a toolbox. Mr Gage's evidence was that this equipment made the vehicle heavy, but that it did not make it difficult to see behind the vehicle using the mirrors fitted on it.
Mr Van Der Veen was driving his wife's Holden Vectra sedan. His evidence was that it was a car with which he was familiar and that he used it daily.
As he approached the intersection Mr Gage was in lane three. Mr Van Der Veen was travelling behind Mr Gage in lane two.
Mr Gage's evidence was that prior to the accident he had completed the inspection of a house in City Beach. He had another house inspection to do in that suburb. He intended to have his lunch before doing that job. It was his practise to have his lunch early as he did not eat breakfast. After leaving the house in City Beach at which he had carried out the inspection he turned right into Oceanic Drive and drove in a westerly direction, intending to drive to a car park at the beach at the end of that street. In Oceanic Drive he travelled in lane three.
He was familiar with the intersection of Oceanic Drive and West Coast Highway. He used to spend time at the beach and was familiar with all the car parks along the beach. As he approached West Coast Highway the traffic lights facing him were green. There were a couple of cars stationary at the lights in West Coast Highway to Mr Gage's right. Mr Gage was travelling at 60 kilometres an hour as he approached the intersection and he maintained that speed as he entered the intersection. He did not notice any vehicles behind him. He did not look to see whether there were any vehicles behind him. He felt he had no need to do so because he was travelling straight as he approached the intersection and as he entered the intersection. After he had entered the intersection he felt a car on the rear left side of his car. Mr Gage's evidence was:
"Now, can you describe what happened after you entered the intersection of Oceanic Drive and West Coast Highway---Yes, I was travelling straight, just going straight - straight through the lights and I felt - I felt a car on the side of my car, like, it was just stuck to my car.
Which side---On my left-hand side, the back left-hand side of my car. And it wasn't like an impact, it was just like the cars were touching and like they were stuck together and then my wheels started to slide and my car flipped over." (T14)
In cross-examination Mr Gage's evidence was that when the car made contact with his car he did not really feel it as an impact, he heard a sort of crunching sound. He was trying to turn the wheel and it was stuck. His car was on the white line at the commencement of the intersection when he heard the crunching sound.
Mr Gage's car rolled over and landed on the roof. He was not able to say where on the road that it landed. He suffered injuries to his neck, his back and his internal organs.
In cross‑examination Mr Gage gave evidence as to a conversation he had with a woman at the accident scene who told him she had seen the accident. It was not submitted by either counsel that this evidence was evidence as to the truth of what Mr Gage was told and I do not regard it as evidence of the truth of what he was told.
Mr Gage's evidence was that he spoke to only one person at the accident scene after the accident because he was on the ground unconscious. He was taken from the accident scene by ambulance.
At some time after the accident Mr Gage completed a crash report form for the Insurance Commission. In that form he wrote:
"I was driving to my next job down Oceanic Drive and my car got flipped. I don't remember what happened."
The document is dated 6 February 2007, which is obviously incorrect. Mr Gage's evidence was that he was very hazy for a while after the accident and he does not remember when he completed the form. It is likely to have been completed shortly after the accident, in or around February 2007.
Mr Gage was taken by ambulance to Sir Charles Gairdner Hospital. In a report dated 16 February 2009 Dr D Oldham, Deputy Executive Director of the Hospital, has written that the hospital's records show:
"Mr Gage presented to the Emergency Department at 10:58 hours on 7 February 2007 after been (sic) brought in by ambulance from City Beach. This (sic) history given is that he was the restrained driver of a car which rolled. He had no recall for actual events although he had good recall either side of the accident."
Mr Gage agreed that the report is likely to contain an accurate record of what he said on his admission to the hospital.
On 13 June 2007 Mr Gage attended upon Dr Chris Hammersley, consultant occupational physician. In a report dated 9 July 2007 Dr Hammersley wrote:
"Mr Gage told me that he has no direct knowledge of the way the accident happened. He believed his vehicle was clipped at the right rear corner, as it suddenly deviated left. He says that he went to correct the vehicle and the car then rolled to the left side, probably at 40 km/h."
Mr Gage denied telling Dr Hammersley that he had no direct knowledge of the way the accident happened or that he believed that his vehicle was clipped at the right rear corner as it suddenly deviated left. Mr Gage's evidence was that he could not really remember what he told Dr Hammersley, but he did recall that he tried to tell Dr Hammersley his story, but that Dr Hammersley was not interested in what he was saying.
His evidence was that he would have said to Dr Hammersley that he was not too sure about the accident. His evidence in cross‑examination was:
"So would you then deny that you told Dr Hammersley that you had no direct knowledge of the way the accident happened---I - I know I would have been saying, 'I'm not too sure'. I was very hazy about the accident for a long time after, so I used to say, 'I'm not too sure, I'm not too sure'.
Okay---Until I was - I was absolutely clear, that's when I say what happened.
Okay. And you became clear, did you, at some point---Well, I knew what happened. Just after the accident, you know, it just - it's hard to put it into words when you're just so hazy. I mean---
So when did you - when did you become more aware of - of what happened in the accident---I was always aware of what happened. It's just when you're being questioned and you're not quite right, you just - all you say is, 'Not sure. I'm not sure. I'm not too sure,' and I remember that's what I used to say, so---
But today you're sure, are you---I'm - I'm quite - I know exactly what happened. And yes, I'm sure. And what I'm saying to you is exactly what happened.
So when did you become sure---I've always been sure, just - it just comes clear over time, you know.
So despite the passage of time, it's become clearer to you what happened in the accident---It did, yeah."
Dr Hammersley was not called as a witness. Counsel for Mr Van Der Veen tendered his report dated 13 June 2007 in evidence under s 79C(2a) of the Evidence Act 1906.
Mr Gage saw Dr Andrew Harper in September 2008. He was asked in cross-examination about what he told Dr Harper about the accident. There was no significant difference between Mr Gage's evidence and what he told Dr Harper.
Mr Van Der Veen lived in Birkdale Street, Floreat. On the day of the accident he was travelling to City Beach on Oceanic Drive from his home, a journey he took four or five times a week in summer. His evidence was that prior to the accident he had been travelling in lane two. He did not change lanes at any time before the accident. He was travelling at approximately 60 kilometres an hour. He first saw Mr Gage's utility approximately 2 kilometres before the intersection of Oceanic Drive and West Coast Highway. Mr Gage's utility was travelling in lane three approximately 30 to 40 metres in front of Mr Van Der Veen. The two vehicles were travelling at a similar speed.
The traffic lights facing Mr Van Der Veen at the intersection were green. He intended to travel straight through and he did not slow down as he approached the intersection. Mr Gage's utility moved into lane four and slowed down. Mr Van Der Veen's evidence‑in‑chief was that he believed that the utility's right hand indicator was on. In cross-examination his evidence was that he did not know with certainty that the utility's right hand indicator was on. In re-examination Mr Van Der Veen was asked about a statement he provided to Senior Constable McAllister, a police officer who attended at the accident scene on the day of the accident, in which Mr Van Der Veen said that the utility had his indicator on to turn right. The fact that Mr Van Der Veen made that statement shows that his evidence that the utility's right hand indicator was on is not a recent invention, it is not evidence of the truth of what Mr Van Der Veen said in the statement.
Mr Van Der Veen's evidence was that when he was approximately 20 to 30 metres from the utility it changed its indicator to indicate that it was turning left and started crossing lanes two and three to travel south on West Coast Highway. The utility had not entered the intersection when it changed its indicator. Mr Van Der Veen tried to brake as hard as possible. He could not swerve left as the utility came from the left and he could not swerve right as if he did so he would hit a traffic light pole. He was unable to stop his car in time to avoid colliding with Mr Gage's car. The time between the utility indicating to turn left and moving across his path was very small, perhaps 2 or 3 seconds or less.
The front right side of Mr Van Der Veen's car collided with the left back of the utility. The utility rolled over and landed on its roof.
Mr Van Der Veen marked on Exhibit 2 where his car and Mr Gage's utility stopped. It shows Mr Van Der Veen's car stopping with the front of the car in the intersection but the rear not having entered the intersection. Mr Gage's utility is shown on in the western side of the south travelling lanes on West Coast Highway.
In cross-examination Mr Van Der Veen's evidence was that when he saw the utility indicating that it was going to turn left he sounded his horn to alert the driver of the utility of his presence. At the time that the utility changed its indicator it was travelling slowly, possibly at approximately 5 kilometres an hour. It had not entered the intersection.
The damage to Mr Van Der Veen's car was to the front of the car on the right side and to the right side of the car at the front, as shown on Exhibit 5, a motor vehicle assessment form completed by an assessor in Mr Van Der Veen's presence.
Paragraph 2.6 of Mr Van Der Veen's defence provides:
"[Mr Van Der Veen] denies that whilst driving through the intersection, [his] vehicle collided with the left rear side of [Mr Gage's] vehicle and says that [Mr Gage's] vehicle and [Mr Van Der Veen's] vehicle were involved in a collision in the intersection."
Mr Van Der Veen's evidence was that he had not seen the defence before trial and that par 2.6 does not accurately state what he says as to how the accident occurred.
In the statement that he provided to Senior Constable McAllister on the day of the accident Mr Van Der Veen said that prior to the accident he saw the utility in the far right lane waiting to turn right onto West Coast Highway. He did not say in that statement that the utility had indicated to turn left or that he had sounded his horn before the accident. Mr Van Der Veen's evidence in cross-examination was that his evidence‑in‑chief that he saw the utility indicate to turn left was possibly mistaken. Mr Van Der Veen denied that his evidence of braking heavily, seeing indicators and sounding his horn were matters that he had concocted after the accident.
In re-examination Mr Van Der Veen was asked about an Insurance Commission crash report form that he completed on 27 February 2007. In that form Mr Van Der Veen wrote that the when Mr Van Der Veen's vehicle was approaching the intersection the utility indicated to go south and started to cross two lanes. The fact that Mr Van Der Veen completed that form shows that his evidence that the utility indicated to turn left is not a recent invention, it is not evidence of the truth of what Mr Van Der Veen wrote in the form.
Senior Constable David McAllister attended the accident scene at approximately 10.00 am. By that time Mr Van Der Veen's car had been moved. Mr Gage's utility was still on the road. Senior Constable McAllister could recall that it was not in an upright position, but could not recall if it was on its right hand side or its roof. Senior Constable McAllister marked on Exhibit 7 where Mr Gage's utility was when he arrived. It shows the utility in the straddling the first road mark separating the two south travelling lanes on West Coast Highway, close to where Mr Van Der Veen had marked the utility as having come to rest, but Mr Van Der Veen had marked the utility as being on the western side of the south bound lanes whereas Senior Constable McAllister had marked it as being close to the middle of those lanes.
Senior Constable McAllister could not recall whether he spoke to witnesses at the accident scene other than Mr Van Der Veen. The Report of Road Traffic Crash that Senior Constable McAllister completed shows that Zoot Ngui was an independent witness, but Senior Constable McAllister could not recall speaking to that witness.
In that report Senior Constable McAllister described the accident as having occurred in the way described by Mr Van Der Veen and drew a sketch to the same effect. His evidence was that the description and the sketch were based on what people told him at the accident scene and on his observation of where Mr Gage's utility ended and his experience as a police officer who has spent the majority of his eight years as a traffic officer.

Findings of fact

I am satisfied from the evidence of both Mr Gage and Mr Van Der Veen that the right front of Mr Van Der Veen's car came into contact with the rear left of Mr Gage's utility, causing Mr Gage to lose control of his utility and resulting in the utility rolling over and landing on its roof. I find that the utility had not been moved before Senior Constable McAllister arrived and that after the collision the utility came to rest on West Coast Highway, in the south travelling lanes, approximately in the centre of the lanes.
On the critical issue of whether Mr Gage's vehicle changed direction before the collision certain matters of evidence do not assist me. As Mr Gage had lost control of his vehicle and it then rolled over it is not possible to make any conclusion as to how the initial contact occurred from the final location of the utility or from the areas of Mr Van Der Veen's car which were damaged in the accident.
Although Senior Constable McAllister's Report of Road Traffic Crash was admissible under s 79C of the Evidence Act 1906 the weight to be given to the views expressed in the report is to be determined in accordance with s 79D. Senior Constable McAllister could not recall to whom he spoke, other than Mr Van Der Veen, and how his experience as a police officer led him to reach his conclusions was not stated in evidence. I do not attach any weight to the views expressed in the report.
The presence of the pedestrian islands to the left of lane one and to the right of lane four, past the white line on Oceanic Drive that marks the commencement of the intersection does not make either version of how the accident occurred more likely. The presence of the islands is equally consistent with both versions.
The decision as to how the accident occurred turns on the evidence of Mr Gage and the evidence of Mr Van Der Veen.
Paragraph 2.6 of his defence is not consistent with Mr Van Der Veen's evidence. I accept Mr Van Der Veen's evidence that he had not seen the defence before the trial. There is no evidence as to how the document came to be drawn and I do not conclude from the difference between the paragraph and his evidence that his evidence should not be accepted.
In his evidence‑in‑chief Mr Van Der Veen gave evidence that he believed that the utility's right indicator was on. His evidence in cross‑examination was that he did not know with certainty that the utility's right indicator was on.
In the statement that he provided to Senior Constable McAllister on the day of the accident Mr Van Der Veen did not say that the utility had indicated to turn left or that Mr Van Der Veen had sounded his horn before the accident. Mr Van Der Veen did not say in his evidence‑in‑chief that he had sounded his horn before the accident and counsel for Mr Van Der Veen did not ask Mr Gage in cross‑examination whether he heard a vehicle's horn before the accident. I conclude that Mr Van Der Veen did not say to his counsel or solicitors before the trial that he sounded his horn before the accident. Mr Van Der Veen's evidence in cross‑examination was that his evidence‑in‑chief that he saw the utility indicate to turn left was possibly mistaken.

I conclude that there are details of the accident about which Mr Van Der Veen's recollection are unclear and uncertain. I am not satisfied on the balance of probabilities that he saw Mr Gage's utility indicate to turn left or that Mr Van Der Veen sounded his horn before the accident. I conclude that Mr Van Der Veen's evidence as to these matters is his reconstruction of events rather than his recollection.
I have referred earlier in these reasons to the report of Dr Hammersley dated 9 July 2007 in which Dr Hammersley wrote that Mr Gage told him that he has no direct knowledge of the way the accident happened and that he believed his vehicle was clipped at the right rear corner, as it suddenly deviated left. Mr Gage denied telling Dr Hammersley that he had no direct knowledge of the way the accident happened or that he believed that his vehicle was clipped at the right rear corner as it suddenly deviated left. Dr Hammersley was not called to give evidence about what Mr Gage told him and so the content of the note upon which this part of his report was based is not known. It seems unlikely that Mr Gage would have told Dr Hammersley that his vehicle was clipped as it suddenly deviated to the left. While this is similar to what Mr Van Der Veen says and has said about the accident it is not something that Mr Gage appears to have said on any other occasion. Dr Hammersley wrote his report after having "reviewed the available records, interviewed and examined Mr Gage". It may be that he has confused what he read from the records with what Mr Gage told him. I am not satisfied that Dr Hammersley's report of 9 July 2007 contains an accurate record of what Mr Gage told Dr Hammersley about how the accident occurred.
After the accident, at Sir Charles Gairdner Hospital, Mr Gage gave a history that he had no recall for actual events although he had good recall either side of the accident. In the crash report to the Insurance Commission, which Mr Gage is likely to have completed in the same month as the accident, Mr Gage wrote that he did not remember what happened. Mr Gage's evidence was that he knew exactly how the accident happened in the accident and that he was always sure of what happened. However he acknowledged that he used to say that he was not sure how the accident happened. He also gave evidence that he was very hazy about the accident for a long time and that the accident has become clear over time.
I conclude from Mr Gage's evidence as to the changes in his recollection that while he believes that he has a clear recollection of the accident he does not in fact recall how the accident occurred and that his evidence as to how it occurred is a reconstruction. I reach this conclusion from both the content of the evidence and the way in which he gave the evidence. It seemed to me when he was giving the evidence to which I have referred that Mr Gage was determined to say that he had a clear recollection of the accident and to explain away the fact that he had previously said something different.
While the there are details of the accident about which Mr Van Der Veen's recollection are unclear and uncertain I am satisfied on the balance of probabilities that his recollection of significant details of how the accident occurred are accurate.
I find that Mr Gage and Mr Van Der Veen were both travelling at approximately 60 kilometres an hour as they approached the intersection. Mr Van Der Veen was travelling in lane two. Mr Gage was travelling in lane three, approximately 30 to 40 metres in front of Mr Van Der Veen.
The traffic lights facing them at the intersection were green. As Mr Gage approached the intersection he moved his utility into lane four and slowed down. Mr Van Der Veen continued in lane two and he did not slow down as he approached the intersection.
Mr Van Der Veen continued to approach the intersection at approximately 60 kilometres an hour. He did not continue to observe Mr Gage's utility. As I have noted earlier I am not satisfied that Mr Van Der Veen saw Mr Gage's utility indicate to turn left or that Mr Van Der Veen sounded his horn before the accident.
As Mr Van Der Veen was approached the intersection Mr Gage's utility, which was travelling slowly, moved out of lane four and commenced crossing lanes two and three to travel south on West Coast Highway. At some stage after it had commenced this manoeuvre Mr Van Der Veen noticed that the utility had changed direction. He applied his brakes but was unable to stop his car in time to avoid colliding with Mr Gage's car. The front right side of Mr Van Der Veen's car collided with the left back of the utility. The utility rolled over and landed on its roof.

Negligence

Mr Van Der Veen owed a duty of care to other road users, including Mr Gage. That duty of care is not confined to careful road users, but extends to all foreseeable road users, including bad and inattentive drivers: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506. The reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time take reasonable steps to react to those events: Manley v Alexander (2005) 80 ALJR 413. As he approached the intersection Mr Van Der Veen continued at his speed of approximately 60 kilometres an hour and he did not continue to observe Mr Gage's utility. The duty of care that Mr Van Der Veen owed to Mr Gage required him to continue to take note of Mr Gage's vehicle so that if it did change direction, however unexpectedly, he could react to that change and avoid a collision. In failing to do so Mr Van Der Veen was in breach of the duty of care that he owed to Mr Gage.

Contributory negligence

Mr Gage changed the direction of his utility and moved from lane four and cut across the path of Mr Van Der Veen's car. In doing so he failed to take reasonable care for his own safety and this failure was a cause of the accident.
The apportionment of liability requires the damages recoverable by Mr Gage to be reduced to such extent as is just in accordance with the degree of negligence attributable to Mr Gage. A comparison of the degree of fault between Mr Gage and Mr Van Der Veen requires an examination of the whole conduct of each in relation to the circumstances of the accident: Alexander v Manley (2004) 29 WAR 194, Pennington v Norris (1956) 96 CLR 10.
Mr Gage's conduct in changing the direction of his utility, moving from lane four and cutting across the path of Mr Van Der Veen's car created the danger. Mr Van Der Veen's negligence consisted in failing to keep a proper lookout so as to enable him to react appropriately to that danger and avoid the collision. Mr Gage's responsibility for the accident is greater than that of Mr Van Der Veen. I apportion responsibility for the accident 75 per cent to Mr Gage and 25 per cent to Mr Van Der Veen. Mr Gage is entitled to 25 per cent of his damages to be assessed.