Hammer v Rusha

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HAMMER -v- RUSHA [2006] WADC 134

CORAM: EATON DCJ

HEARD: 10-11 AUGUST 2006

DELIVERED : 4 SEPTEMBER 2006

FILE NO/S: CIV 420 of 2005

BETWEEN: WESLEY BRIAN HAMMER
Plaintiff
AND
JACQUELINE LEE RUSHA
Defendant

Catchwords:

Torts - Negligence - Road accident - Quantum agreed - Turns on own facts

Legislation:

Road Traffic Code

Result:

Judgment for the plaintiff

Representation:

Counsel:

Plaintiff: Mr G T Stubbs
Defendant: Mr J P T Olivier

Solicitors:

Plaintiff: Dwyer Durack
Defendant: Talbot & Olivier

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

Nil

Case(s) also cited:

Nil

EATON DCJ: At the time of trial the plaintiff was aged 37 years having been born on 19 January 1969. On 15 November 2003 he had spent the afternoon at a friend's place working on his Harley Davidson motorcycle which he had, at that stage, owned for about six months. After leaving the friend's place he went home where he showered and changed.
He had extensive experience with motorcycles having been a rider from the age of about 5 years and from the age of about 7 years competing in speedway and motocross in motorcycle events at both state and national levels winning, from time to time, both state and national titles. He ceased competitive motorcycle riding in 1999.
On the evening of 15 November 2003 he was to collect a female friend, one Penelope Jane Marsh, and take her to dinner. They had met socially but had never been out together before. She lived at West Road in Bassendean. He was to collect her on his motorcycle at about 7.45 pm. They were going to ride to Scarborough, have a meal and then return home to watch a film on television.
Having collected her as planned the two set off on his motorcycle eventually turning left into Guildford Road and riding in the direction of the City of Perth. It was a fine, dry night. Traffic on Guildford Road was light.
The plaintiff said that he travelled along Guildford Road with the motorcycle headlights on. As he approached the Tonkin Highway overpass he was in the right of the two lanes carrying traffic south west towards Perth.
Immediately prior to the overpass there is a set of traffic lights controlling traffic entering upon and exiting from Guildford Road to the left being the on‑ramp for the Tonkin Highway south and access to Perth Airport. As the plaintiff approached those lights and passed through they were green for city bound traffic on Guildford Road. He then passed under the Tonkin Highway overpass approaching a second intersection controlled by traffic lights dealing with traffic entering and exiting Guildford Road from the ramp servicing Tonkin Highway north. That ramp was to the plaintiff's left as he travelled along Guildford Road. He said that, as he approached those lights there was a green signal for city bound traffic on Guildford Road. His intention was to continue through the intersection in that direction.
The defendant was, at the time of trial, 20 years old, she having been born on 3 October 1985. She was, on 15 November 2003, living at Maylands. She left home driving her Hyundai Excel hatchback motor vehicle with her friend Jacqueline Eve Thomas as her passenger. They were going to a fancy dress party in Morley. With that intent the defendant drove along Guildford Road towards Midland with the intention of turning right onto the Tonkin Highway north ramp. It follows that she was travelling in the opposite direction to the plaintiff. She reached that intersection shortly after 8 pm. As she approached the intersection and the lights immediately to the south of the Tonkin Highway overpass she said that the lights facing her displayed the green signal for Midland bound traffic and a green right turn arrow for the Tonkin Highway north ramp. For approximately 120 metres before those lights there is a third lane on Guildford Road dedicated to traffic intending to turn right off Guildford Road onto the Tonkin Highway north ramp.
The defendant said that she slowed down to make the right turn. When she was halfway through the turn her vehicle was struck with considerable force causing it to turn through 180 degrees.
The plaintiff said that, having passed under the underpass, he approached the same lights. There were, he said, vehicles waiting to enter Guildford Road having exited the Tonkin Highway on his left. There was, facing him, a car at the lights in the dedicated right turn lane for Midland bound traffic which was stationary at the intersection. As he approached the lights facing him turned from green to amber. With no time to stop he proceeded on through the intersection. As the lights turned amber the vehicle which had been stationary facing him in the right hand turn lane, that driven by the defendant, moved to make a turn to the right and in doing so drove into his path. He applied the brakes and put the motorcycle down, skidding into the rear of the defendant's vehicle with he and his pillion passenger, upon impact, being catapulted over the back of that vehicle and landing some 10 to 15 metres further down Guildford Road. The bike followed them on its side. Neither he nor Ms Marsh lost consciousness. In due course police and ambulance attended and the plaintiff, who was injured, was conveyed to Royal Perth Hospital.
Ms Marsh, the plaintiff's pillion passenger, gave evidence as follows:
"We went towards Guildford Road from my place. We turned left onto Guildford Road and were heading towards town and then we went through one set of lights. As we were approaching the second set of lights, which is the Tonkin Highway north on‑ramp, a car pulled up to the lights. A car heading towards us pulled up to the lights with their indicator on to turn right. They crept forward a bit into the intersection and then decided to actually turn right and cut us off. We ran into the car."
Ms Marsh said that as they approached the lights in question the signal for city bound traffic in Guildford Road was green. She was unable to say when they entered the intersection whether the lights were amber or green. She said that the plaintiff had right of way. She was not injured.
Jacqueline Eve Thomas was the defendant's passenger seated in the left hand front passenger seat of the Hyundai motor vehicle. She confirmed that as the defendant approached the intersection with the intention of turning right onto the Tonkin Highway north ramp their vehicle had slowed from about 60 to 65 kilometres an hour and that the traffic signals displayed green for Midland bound traffic and a green arrow for traffic in the right hand turn lane. Those signals did not change as they made their turn. She said that there was a sudden impact and that she had no idea what had happened.
On the evidence of the plaintiff and his pillion passenger the lights facing them as they approached the intersection were green, indicating that they could safely pass through. As they entered the intersection the lights turned from green to amber still indicating safe passage through the intersection albeit that the lights were about to change to red. On the evidence of the defendant and her passenger the lights as they approached the intersection from the opposite direction were green both for Midland bound traffic and for traffic intending to turn right into the Tonkin Highway north ramp and did not change.
The plaintiff called Christian Paris who gave his occupation as being traffic assistance manager at Downer Engineering Pty Ltd. He said that he was responsible for programming and maintaining traffic signal operations in Western Australia pursuant to a 10 year contract between Downer Engineering Pty Ltd and the Main Roads Department of Western Australia. He said that he had 25 years experience in traffic signal programming, coordination and network maintenance. He produced a technical drawing under the banner of "Main Roads Western Australia" marked LM498A which became exhibit 4. It depicted, in technical drawing form, the intersection at which the accident involving the plaintiff and the defendant occurred on 15 November 2003. The detail of the drawing was current as at that date. Mr Paris described the operation of the traffic lights at that intersection, indicating that there were three different phases described pictorially in the bottom left hand corner of LM498A as being phases A, B and C. Each of those phases could be triggered by motor vehicle traffic movement. There was a fourth phase described as A‑PED being a special phase triggered by a pedestrian pushing a button to activate walk lights so that he or she might cross the Tonkin Highway ramp.
Phase A is, as Mr Paris described it, always demanded. In that phase both city bound and Midland bound traffic have a green light with no light indication for traffic in the Midland bound right hand turn lane. He explained that the lights, in the absence of any motor vehicle demand for phase B or C or pedestrian demand for phase A‑PED, would revert to phase A automatically from any of the other three phases. Pedestrian demand involves the pushing of a button by a pedestrian. Motor vehicle demand involves the presence of a motor vehicle over a sensor in each lane at the lights within the road surface.
Mr Paris explained that in phase A, there being no light indication for traffic in the right hand turn lane, traffic movement is permitted to enable a vehicle to turn right from Guildford Road into the Tonkin Highway north ramp but in doing so the driver of such a vehicle must give right of way to city bound traffic coming in the opposite direction. That is because in phase A both Midland bound and city bound lanes have a green light.
Mr Paris explained that phase C can be activated by a vehicle remaining stationary over the sensor in the right hand turn lane for at least three seconds. That phase could also be demanded by the arrival of vehicles over sensors in the left hand turn lanes for vehicles on the Tonkin Highway ramp wishing to enter Guildford Road to the left.
When the lights are in phase A both city bound and Midland bound lanes on Guildford Road have green lights with no green arrow for the right turn from Guildford Road onto the Tonkin Highway north ramp. If either phase B or C is demanded by the arrival of another vehicle in either of the exit lanes of the Tonkin Highway ramp or in the right turn lane of Guildford Road the lights for city bound traffic will change from green to amber and remain amber for four seconds before changing to red. All lights then remain red then for 1.5 seconds before the opposing green light is released. Mr Paris explained that the times for amber and red are set and fixed, unlike the time for green, which is flexible. The amber light in any phase will be displayed for four seconds followed by 1.5 seconds during which there will be a red light in all directions, that latter period being allocated to enable a vehicle that might cross very late into the amber time to clear the intersection at 60 kilometres per hour and in doing so be out of the conflict zone by the time the opposing green is released.
Mr Paris said that there was no possibility of variation to the system described by him and on LM498A. In the event of a fault in any one part of the system at that intersection a default setting would be triggered within a fraction of a second resulting in there being amber flashing lights in all directions which would continue until repair was effected. Mr Paris said that he had checked the system fault log for 15 November 2003 for the intersection in question and gave evidence that there was no fault recorded. Neither was there any report from the public to the effect that there was a malfunction at the lights in question. I conclude, on the balance of probabilities, that on the evening in question, at the time of the motor vehicle accident giving rise to this action, the lights at the intersection were operating in the way that they were designed to operate, there being no fault.
In the light of the evidence of Mr Paris and my finding based on the operation of the lights in question the evidence of the plaintiff and his passenger is in direct conflict with the evidence of the defendant and her passenger. If the evidence of the defendant and her passenger is accepted there was displayed both a green right hand arrow and green lights for Midland bound traffic in Guildford Road. That situation occurs only in phase C. If phase C was operating then city bound traffic in Guildford Road had a red light. If I accept the evidence of the plaintiff and his passenger that as they approached the intersection the lights were green changing to amber then the intersection lights must have been in phase A moving to either phase B or phase C. If the lights were amber as the plaintiff entered the intersection then the defendant could not have had a green light in the right hand turn lane. She must, in that circumstance, have turned into the path of the plaintiff and in doing so failed to give way to him.
Besides the plaintiff and his passenger and the defendant and her passenger there were witnesses to the accident. The plaintiff called Kate Elizabeth McMillan‑Breed and Matthew James Hunt who were, on the night in question, travelling along Guildford Road to their home in Northbridge. They had been in Midland for the opening of an exhibition for the Midland City Council. They were travelling in an S‑series Valiant sedan being driven by Mr Hunt. Ms McMillan‑Breed recalls being overtaken by a motorcycle when they were approximately 300 metres from the intersection of Guildford Road and the Tonkin Highway north ramp. She thought that their vehicle was travelling at the speed limit or perhaps five kilometres over the limit. The motorcycle might have been travelling perhaps 10 kilometres per hour faster when it passed. There was the motorcycle rider and a pillion passenger. She said:
"I remember watching the motorcyclist in front of us heading through the intersection and I have a very clear picture of the car turning in front of the motorcyclist and thinking in my mind, you know, 'Oh my God, what are they doing?' It was as if they hadn't seen the motorcyclist."
She said that at that point their vehicle was approximately 150 to 200 metres from the intersection. She remembered that the vehicle which turned into the path of the motorcycle was a four‑door small to medium size sedan and that the motorcycle hit that vehicle on the back panel. She recalled that, at the time of the accident, the lights which they were approaching were green. She recalled also that the motorcycle, immediately prior to the accident, was in the right city bound lane. She and her partner had been travelling in their vehicle in the right lane. She said that they pulled into the left lane and then onto the verge to stop to assist those possibly injured in the accident.
In cross‑examination Ms McMillan‑Breed said that her recollection was that there was no traffic in between the vehicle in which she was travelling and the motorcycle. When asked in cross‑examination what the defendant's vehicle was doing when she first saw it she replied, "Sitting in the traffic lights". She conceded that it may have been moving very slowly. When asked whether she saw any vehicle stationary on the off‑ramp waiting to enter onto Guildford Road she replied that she did not.
Mr Hunt said that he was driving the Valiant sedan with Ms McMillan‑Breed as his passenger. He said that the motorcycle overtook them on Guildford Road. He wasn't aware of any traffic in front of them at the point of overtaking. When the accident occurred he was approximately 150 metres from it in the right hand city bound lane. He said:
"The motorcyclist was also in the right‑hand lane. A car cut in front of the motorcyclist. He hit the back quarter panel of the car and I saw a figure, which I now know is two figures, flying through the air over the top of the vehicle and landing."
He had no recollection of seeing the motor vehicle which cut across the path of the motorcycle before it did so. So far as he could recall there was no other city bound traffic in Guildford Road.
In cross‑examination Mr Hunt was unable to say whether the lights were green, amber or red immediately prior to the accident.
The defendant called Kristy Kaye Lawson who said that she witnessed the motor vehicle accident at approximately 8.30 pm on Guildford Road on the night in question. She was driving a motor vehicle which was on the Tonkin Highway north ramp waiting to turn right on Guildford Road towards Midland. She was in the right of two lanes with one car stationary at the lights in front of her and another vehicle stationary at the lights in the lane to her left. Both lanes can only turn right into Guildford Road.
Her evidence was that while she was stationary there were two motor vehicles to her right travelling in the city bound lanes of Guildford Road. One was in the right hand lane and the other in the left hand lane with the one in the right lane being ahead of the one in the left lane. There was also a motorcycle which was travelling faster than the two motor vehicles. She observed a motor vehicle turning right onto the Tonkin Highway north ramp from Guildford Road. The motorcycle she observed passed between the two vehicles in the city bound lanes. The lights facing her were red.
In cross‑examination, Ms Lawson said that the motorcycle she observed came from behind the vehicle in the left lane and overtook that vehicle while still a couple of car lengths from the lights. The driver of the motorcycle did not return to the left lane when passing the car in the right lane. The lights facing her were red until after the motor vehicle accident. She only saw the other vehicle involved in the accident as the motorcycle was going through the intersection. She admitted that her recollection of the accident was "somewhat vague" but said that she could not be wrong about the description given. The vehicles passed by the motorcycle in the city bound lanes and Guildford Road were, she said, definitely there. They stopped at the lights when the light facing her was still red.
The remaining independent witness was Peter Rodgers, a police officer, called by the plaintiff. He gave evidence that he attended the scene of the motor vehicle accident on the evening of 15 November 2003. He said:
"When I arrived I saw a motorbike on the south‑bound lanes of Guildford Road. I saw a male person next to the motorbike and I also saw a vehicle that was on like the on‑ramp to Tonkin Highway."
He observed skid marks which appeared to be fresh and to have been left by the motorcycle. On exhibit 3, an aerial photograph of the intersection, he marked with an X and the letters "M/C" the position of the motorcycle, with an X with the initials "VEH" the position in which he found the defendant's vehicle and the skid mark indicated by a line with the word "skid". The line marked by him is a single line indicating a skid from several metres before the traffic lights to a point perhaps two or three metres into the intersection past the lights.
I have no reason to disbelieve the evidence of Ms Lawson to the effect that at the time of the accident she and the other vehicles on the Tonkin Highway ramp waiting to turn right into Guildford Road were facing a red light. If that was so then the lights at the intersection were either in phase A or C. Her evidence was to the effect that when the two vehicles passed by the motorcycle stopped at the lights in Guildford Road the lights facing her were still red. If the defendant's evidence were to be accepted to the effect that she turned on a green arrow then the lights must have been in phase C when she did so with there being a red light facing both the traffic on the Tonkin Highway north ramp waiting to turn into Guildford Road and facing the city bound traffic on Guildford Road. Ms Lawson's evidence is consistent with the plaintiff's evidence to the extent that the lights facing the city bound traffic on Guildford Road were changing from green to amber because the vehicles she saw travelling in the city bound lanes stopped, she said, while there was still a red light facing her.

There is clearly a disparity between the evidence given by Ms Lawson and that given by Mr Hunt and Ms McMillan‑Breed. On the evidence of those in the Valiant sedan there was no traffic, other than the motorcycle in front of them. Ms McMillan‑Breed was adamant that when the motorcycle entered the intersection the lights were green.
There was no evidence that any of the witnesses had consumed alcohol on the night in question. There was evidence to the effect that the plaintiff was a very experienced motorcyclist. There was evidence to the effect that the defendant had obtained her motor driver's licence in July 2003, some four months before the accident. She and her passenger were in fancy dress and travelling to a fancy dress party. The plaintiff had collected Ms Marsh who was, at the time of the accident, 31 years old and was taking her on their first social outing. They had met not long before.
On the balance of probabilities, having regard to all of the evidence, I find as a matter of fact that the plaintiff did not enter the intersection contrary to a red light and collide with the defendant's vehicle as she was lawfully making a right hand turn, having a green right arrow indicating that she could do so safely. I find, on the balance of probabilities, that the lights at the intersection immediately prior to the accident were in phase A being the phase which is always in demand and the default phase after either phases B or C have been triggered. That being so, the defendant did not have a green arrow indicating that it was safe to turn right. In fact there was no right hand turn display which meant that she could turn right but only if it was safe to do so bearing in mind her obligation to give way to traffic travelling in the opposite direction. If either phase B or C were demanded that would have been demanded by either the defendant's vehicle being over the sensor in the right hand turn lane for at least three seconds or by the vehicles arriving over the sensors at the lights in the right hand turn lane on the Tonkin Highway north ramp. On either scenario the lights facing traffic in the city bound lanes of Guildford Road would turn amber and remain so for four seconds before turning red. All lights would then remain red for 1.5 seconds before indicating a green light to the traffic on the ramp in phase B or a green light and green arrow to the traffic in the Midland bound lanes of Guildford Road. I accept the plaintiff's evidence that he entered the intersection as the lights facing him turned from green to amber and that he did not have time to stop. That being so, it must be the case that the defendant commenced her right hand turn from Guildford Road having failed to see the plaintiff. She did not have a green arrow. The rules of the road obliged her to ensure that there was no oncoming traffic in Guildford Road before executing the turn. She failed to comply with those rules. Had she done so the accident would not have occurred.
In his statement of claim the plaintiff alleges that the accident was caused by the negligence of the defendant in that she:
(a)failed to keep a proper lookout;
(b)drove into the intersection and stopped when it was unsafe to do so;
(c)failed to brake, swerve, steal or otherwise manoeuvre the defendant's vehicle to avoid collision with the plaintiff;
(d)failed to pay any or any adequate attention to the location of the plaintiff's motorcycle.
I do find that she failed to keep a proper lookout and that she drove into the intersection when it was unsafe to do so. I do not find that she stopped having entered the intersection. I do conclude that she failed to avoid collision with the plaintiff's motorcycle because she failed to see it at all. It follows that she failed to pay any or any adequate attention to oncoming traffic.
In her defence the defendant pleads that the accident resulted from the plaintiff's negligence in that he:
(a)rode into an intersection when the traffic control lights facing him were showing red;
(b)entered an intersection in contravention of Reg 40(1)(a) of the Road Traffic Code;
(c)failed to brake, steer or otherwise manoeuvre his motorcycle so as to avoid the collision;
(d)failed to keep any or any proper lookout.
On the pleadings there is no plea that the speed of the plaintiff's motorcycle was a factor which contributed to the accident. There was, in my judgment, no evidence to support that proposition in any event.
I have concluded as a matter of fact that the plaintiff did not ride his motorcycle into the intersection contrary to a red light. It follows that he did not breach Reg 40(1)(a) of the Road Traffic Code. He did brake but was faced with a situation where he could do nothing other than do so and lay the motorcycle down, as his experience suggested that he should, in an attempt to minimise the consequences of the inevitable collision. The plaintiff clearly saw the defendant's vehicle but was faced with a situation about which he could do nothing other than what was done.
This matter was heard by me on the basis that quantum has been agreed. The only question to be determined is that of liability. I give judgment for the plaintiff on his claim against the defendant. I make no finding of contributory negligence against the plaintiff. I will hear counsel as to the precise terms of appropriate orders.

[2006] WADC 134

4 September 2006