Geva v Buscombe - [2000] WADC 275

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GEVA -v- BUSCOMBE [2000] WADC 275

CORAM: NISBET DCJ

HEARD: 20 OCTOBER 2000

DELIVERED : 3 NOVEMBER 2000

FILE NO/S: CIV 57 of 1997

BETWEEN: SIGAL GEVA
Plaintiff
AND
MARK WILLIAM BUSCOMBE
Defendant

Catchwords:

Motor vehicle accident - Motor cycle collides with rear of station wagon - Negligence - Claim for damages for personal injuries - Trial of liability only - Turns on own facts

Legislation:

Nil

Result:

Claim allowed

Representation:

Counsel:

Plaintiff: Mr B G Bradley
Defendant: Mr E J Meyers

Solicitors:

Plaintiff: Moss Bradley
Defendant: Edward John Meyers

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

Nil

Case(s) also cited:

Nil

NISBET DCJ: In February 1996, the plaintiff then aged a little over 24 years, left her native Israel for a motorcycle tour of New Zealand and Australia. By the time she left Albany on 6 January 1997 she had travelled many thousands of kilometres around Australia, without incident. She was an experienced motorcycle rider having owned motorcycles in Israel for many years prior to her departure. On the morning of 6 January 1997 she set off from Albany heading towards Esperance along the South Coastal Highway which is known to most people in the area as the Hassell Highway. Her motorcycle was laden with her camping gear. It was a Yamaha 350 cc road and trail motorcycle. Heading east, she was travelling at between 70 and 80 kilometres per hour, not travelling any faster because of the comparatively small engine size of the motorcycle and the fact that it was laden with all of her travelling gear. She described travelling in the centre of the left-hand lane for about 40 or 50 kilometres without incident when she noticed a car in her rear view mirror. At this point she was faced with a curve to the left at the top of a small rise and as the curve flattened out the road became straight for about another 400 metres when there was another curve up a small rise to the left. Within the first 100 metres or so of this straight the vehicle which she had seen behind her began to overtake her. Whilst she described it as travelling faster than her she did not think its speed excessive. Having passed her the vehicle came back in to the left-hand lane and then immediately began to brake. The plaintiff said she saw the red tail‑lights come on almost immediately. Braking and veering her motorcycle to the left-hand side of the vehicle she found she could not avoid it and her right leg was crushed between her motorcycle and the car. She fell to the road, slid across the road and came to a stop on the road verge. She was in great pain. Vehicles stopped and the occupants rendered assistance. She noticed that two cars, which had been coming around the curve ahead, had pulled over to render assistance. She also noticed that the driver of the vehicle which had overtaken her and stopped immediately in front of her came to speak to her. The plaintiff asked the driver of this vehicle what had happened and said that he replied that he wanted to take the turn off but two cars had come in front of him so he had to come back into the left hand lane and brake.
The "turn off" referred to is the turn off to the right known as Cheyne Beach Road. The driver of the other vehicle is the defendant in this action from whom the plaintiff claims damages for negligence. The trial was as to liability only. The plaintiff claims that the defendant was negligent in overtaking her motorcycle when it was unsafe to do so, overtaking her vehicle with the intention of turning right into Cheyne Beach Road when he was too close to the turn off to effect a safe overtaking and turning manoeuvre, and, with the intention of turning right into Cheyne Beach Road, overtook in a situation where he failed to take heed of the approach of vehicles coming from the opposite direction.
Cross-examined about her version of the events the plaintiff denied that she was riding her motorcycle with her head down into a strong easterly wind and quite clearly from her demeanour whilst giving this evidence she thought the suggestion somewhat peculiar. Likewise the plaintiff denied that the defendant's vehicle had been stopped for 15 seconds, had given way to one of the approaching vehicles and then given way to the second approaching vehicle before just setting off to effect a right hand turn into Cheyne Beach Road when she collided with the rear of his vehicle.
Further cross-examined, the plaintiff agreed that she had given a statement to the police when they interviewed her whilst she was still in the recovery room following an operation to her leg. In fact, she said, the nurse had to wake her to speak to the police. It was put to her that her statement to the police was inconsistent with the version of events she had given in court, which she denied. She told the police that the defendant had come to a sudden stop in front of her and in all of the circumstances I am unable to see any inconsistency with what she told the police after having been awoken from what I gather was a general anaesthetic in the recovery room outside an operating theatre, and what she said in evidence.
The only other witness called by the plaintiff was Mr John Anthony Ciprian, an Albany jeweller who has owned a beach house at Cheyne Beach for the last five years. Mr Ciprian was a regular traveller over the section of road in which the accident occurred and recalled the road at the time of the collision. He testified that there was no material difference between the road in January 1997 and this year when he took some photographs of the scene. He said that the Cheyne Beach Road turn off was very poorly sign posted. There were no signs warning of the approaching turn off and the only sign to the turn off was at the intersection itself. In the vicinity of the straight section of track leading to the turn off as described by the plaintiff, Mr Ciprian said that it was difficult to pass because there were too many bends and as I understood his evidence the combination of the configuration of the road before the turn off and the fact that there is no signage makes the turn off to Cheyne Beach very easy to miss. Mr Ciprian said that he had missed it himself.
The defendant and his wife both gave evidence. The defendant said that he was a prison officer living in Albany at the time of the collision and on the day of the collision he was taking his wife and his three daughters to Cheyne Beach for a family outing. He was driving a green Holden Commodore station wagon and his wife was seated directly behind him in the rear seat taking care of their youngest daughter. He had only been to Cheyne Beach once before but he calculated the distance and said that he had set his odometer for the journey so that he knew when the turn off would be approaching. He testified that he approached the plaintiff's motorcycle just before a bend going up a hill. He said there was no opportunity to overtake so he slowed down because the motorcycle was "going so slow – about 40 kilometres per hour." Turning into the bend he said he saw nothing coming, and, indicating his intention to over take, he over took the plaintiff and as he drew alongside her said that he could recall remarking to his wife "look how piled up that motorcycle is" before pulling back in front of the motorcycle. He said that he was not in any hurry and he did not cut in on the plaintiff's motorcycle. Approaching the intersection for the Cheyne Beach Road turn off he saw a car coming over the hill towards him so he slowed down and came to a standstill. He was about to go he said when another car came from around the bend ahead of him and he waited for that to pass too. He said he was stationary, maybe just about to go when he was struck from behind by the plaintiff. He completed his right hand turn into Cheyne Beach Road, parked his vehicle and came to speak with the plaintiff. He said that he had a conversation with her and agreed that she had asked him what had happened. He said she was obviously hurt and he said that he told her that he looked and saw that there were two cars coming and that he had to stop. He testified that he made a conscious decision not to get involved in conversation with the plaintiff about the cause of the collision because the plaintiff was obviously injured and in pain. He said that he thought that his vehicle was stationary for about 15 seconds before the collision.
Before he was cross-examined I thought that the defendant had given his evidence in fairly straightforward uncomplicated sort of fashion however I observed a marked change during the course of his cross-examination. Asked about the circumstances which led him to set his odometer I thought the defendant a defensive witness who occasionally avoided the question he was being asked.
Cross-examined about when he first saw the sign to the turn off to Cheyne Beach Road and asked to mark it on photograph 4 in exhibit P1 he marked a relatively small sign on the left hand side of the roadway facing the intersection, barely visible in the photograph, when there is a much more visible photograph on the right hand side of the road which is depicted. I thought this quite peculiar, when one examines the photographs the explanation for this I think is that the larger sign is partially obscured by a dip in the road and some roadside vegetation until one is closer to it and I formed the impression that the defendant was reluctant to say that he had seen the sign on the right because it would then be demonstrated that he had been much closer to the intersection when he came upon it than might otherwise be the case if he picked out the much smaller barely visible sign on the left hand side of the road.
Additionally, in cross-examination the defendant said that he made the comment to his wife about the heavily laden motorcycle of the plaintiff whilst still behind it "or perhaps as I was overtaking" and, when pressed on this because of its obvious ramifications for the evidence of his wife, the plaintiff withdrew it and said that he made the remark as he was passing. Interestingly the defendant was not asked when he was examined by his counsel as to whether or not the plaintiff was bent over leaning in to a strong easterly wind such that she was not looking at the road.
The defendant's wife, Mrs Elizabeth Jane Buscombe testified that she was in the rear seat of the station wagon when she noticed the vehicle slow down because there was a motorcycle in front driving very slowly. She said that as her vehicle passed the motorcycle she looked at the motorcyclist and she thought it was unusual that it was going so slowly. She said she went back to feeding her baby. Her recollection was that she and her husband would have passed the motorcyclist just as they went over the hill. After the overtaking manoeuvre she looked around and saw the motorcyclist perhaps two car lengths behind. She did not think that her husband had cut in on the motorcyclist and then she said her vehicle travelled 300 or 400 metres to the turn off when it stopped at the intersection – it was a normal stop, not sudden, claiming she would have noticed a sudden stop. She went on to testify that she did not know why her husband stopped the vehicle but thought that it was stopped somewhere between 20 and 30 seconds. Then she said, just as her husband was taking off to effect a right hand turn into the Cheyne Beach Road the motorcycle hit the rear of the car and she heard a bang. Cross‑examined about her recollection of events Mrs Buscombe confirmed that she was concentrating on feeding her baby at the time all of this was happening but that even so she thought that the time that her vehicle was stationary before starting to make a turn to the right was not five seconds but more like 20 seconds because "we had to wait for a car from the other direction". Later I asked her how she knew this and she advised that she had learned this because of what her husband had told her and not from her own observations. (ie the cause of the delay in making the turn).
Interestingly, Mrs Buscombe was not asked whether the plaintiff was leaning forward on her motorcycle or had her head down as if she was riding into a strong head wind.
In their closing submissions each of counsel for the plaintiff and defendant agreed that the outcome of this case depended almost entirely on my view of the credibility of the witnesses. They agreed that there was little in the way of extrinsic evidence to assist the resolution of the issues.
I have little difficulty in accepting that on the balance of probabilities the plaintiff's version of events is to be preferred to that of the defendant. My reasons for coming to this conclusion are firstly I found plaintiff to be an open, honest and frank witness. She gave her evidence unhesitatingly in a manner which impressed me with its clarity and honesty. I formed a less favourable opinion of the defendant as a witness. He seemed to me to be defensive and a little prevaricating. The defendant's wife was not reliable because her attention was diverted by her primary interest at the time namely feeding and looking after her young baby. Additionally, the surrounding circumstances of the collision lend themselves in aid of the plaintiff's version of events. Firstly I think it is quite improbable that the defendant was stationary in his vehicle for 15 to 20 seconds before the plaintiff collided into the rear of his vehicle, as both he and his wife testified. The speed limit on that road is 110 kilometres per hour. The plaintiff testified, and I have no reason to doubt her, that she was travelling between 70 and 80 kilometres per hour. I reject the defendant's estimate of her speed at 40 kilometres per hour. I further reject the suggestion implicit in the cross-examination of the plaintiff, but not the subject of any direct evidence by either the defendant or his wife, that there was a very strong head wind into which the plaintiff was riding with her head bent down and not paying attention to the road ahead which might otherwise of thought to have been suggestive of a much lower speed than between 70 and 80 kilometres per hour. Assuming that she was travelling at the lowest of these speeds, 70 kilometres per hour or slightly over, she would travel roughly 20 metres per second and, for 20 seconds that is a distance of 400 metres. In other words she would have travelled the entire straight distance of this roadway as given in evidence from the crest of the hill and the exit from the bend to the west, to the turn off to Cheyne Beach, to the east in this time and that clearly did not happen. The overtaking manoeuvre took 100 metres or more, on the evidence. The defendant was travelling along a road he had only travelled once previously, looking for a turn off to his right which was poorly marked, overtaking the slower moving plaintiff with the sign to the turn off coming into view, and it is I think more probable than not that he then jammed on his brakes for fear of missing the turn, giving the plaintiff no room to escape collision. Next there is the conversation that took place after the accident. The defendant said that he made a conscious decision not to get involved with the plaintiff and admitted that he told the plaintiff that there were two cars coming towards him which obliged him to stop. This is more consistent with the plaintiff's version of events than his. His explanation to the plaintiff is, in all of the circumstances, an excuse for his conduct and not the result of an innocent person seeking to disengage from a conversation with a person lying injured at the side of the road in consequence of a collision with the vehicle he was driving. It is, in context, an excuse for having overtaken the plaintiff and then, realising that the turn off was fast approaching and that he was not able to effect the turn because of oncoming traffic, an admission that he was required to brake suddenly. I did not believe the defendant when he said that he made a conscious decision not to engage the plaintiff in conversation about the cause of the collision and put the blame on to her because she was obviously in pain and lying injured at the side of the road. I think that this is an after the fact invention to distance himself from his admission.
Accordingly I find for the plaintiff on the issue of liability, the only issue before me, and order that judgment on the issue should be entered in favour of the plaintiff.