Harris v Robertson - [2002] WADC 31

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HARRIS -v- ROBERTSON [2002] WADC 31

CORAM: LA JACKSON DCJ

HEARD: 29-31 JANUARY 2002

DELIVERED : 21 FEBRUARY 2002

FILE NO/S: CIV 3231 of 2000

BETWEEN: ROBERT PAUL HARRIS
Plaintiff
AND
ANDREW CHARLES ROBERTSON
Defendant

Catchwords:

Negligence - Speeding motorcyclist colliding with a car U turning - Trial of liability - Turns on own facts

Legislation:

Nil

Result:

Liability apportioned 80% against the defendant (motorcyclist) and 20% against the plaintiff (car driver)

Representation:

Counsel:

Plaintiff: Mr K S Pratt
Defendant: Mr R R Cywicki

Solicitors:

Plaintiff: Arns & Associates
Defendant: Godfrey Virtue & Co

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

Nil

Case(s) also cited:

Allan v Fletcher, unreported; DCt of SA; CIV 98-1364 of 2000; 18 May 2000
Black v Gough (1997) 26 MVR 191
Del Simone v Powell (1994) 21 MVR 85
Henrick v Kubale [2001] WASCA 274
Pennington v Norris (1956) 96 CLR 10
Vasailes v Robertson (1995) 22 MVR 149

LA JACKSON DCJ: The plaintiff and the defendant were involved in a traffic accident. Both were injured. There is a claim and a counterclaim for damages. On 30 and 31 January 2002 the issue of liability was tried by me.
There are some matters not in dispute.
The accident happened at about 6.30 pm on Thursday 1 July 1999. It happened in Scarborough Beach Road, Mt Hawthorn just east of the intersection with Flinders Street. The intersection is controlled by traffic lights. The plaintiff had parked his Mazda 929 sedan registration number 1ADC 472 on the south side of Scarborough Beach Road opposite a shopping centre where he had been for half an hour or so. The car was parked about 50 metres east of the intersection with Flinders Street. The plaintiff intended to do a U turn in Scarborough Beach Road so as to proceed in an easterly direction to go home. He proceeded to perform that manoeuvre. As he was completing the U turn his car was struck by a motor cycle driven by the defendant.
The defendant was the rider of a 250CC two stroke Suzuki motorcycle registration number 1AC488. The motorcycle had been at a repairers in Main Street only a few kilometres away. He was proceeding in an easterly direction along Scarborough Beach Road on his way home. He was familiar with the area having worked as a courier driver in that area for a period of six months or so and said that during that period he had travelled along that section of the road at least twice every day.
The plaintiff claims the defendant rode his motorcycle negligently thus causing the collision. The particulars of negligence ultimately relied upon at trial were that he rode at an excessive speed, that he failed to keep any proper lookout, and that he failed to take appropriate action to avoid the collision. The defendant counterclaims that the plaintiff caused or contributed to the accident by his negligence. The negligence relied upon at trial was that he failed to keep a proper lookout, that he performed a U turn when it was unsafe to do so, that he performed the U turn in an unsafe manner, that he failed to indicate his intention to perform the U turn and that he performed the U turn in a position when due to the proximity of the lights it was unsafe.
There were a number of witnesses to the accident. As is not unusual in cases of this kind there were variations in the observations of the witnesses.
The plaintiff's account of the accident was that he got into his car and started the engine and turned the headlights on and then looked for traffic in Scarborough Beach Road. He said a car travelling south along Flinders Street had turned into Scarborough Beach Road and proceeded in an easterly direction past him. He said he observed the traffic lights at Flinders Street to be red and observed cars stationary in Flinders Street facing in an easterly direction. He considered it safe to proceed so he put his right hand trafficators on and proceeded to do a U turn in Scarborough Beach Road. He says when he had completed his turn so he was facing east along Scarborough Beach Road he observed in his internal rear vision mirror that the traffic lights had turned to green. He said he observed the headlights of a car in the centre lane apparently just beginning to leave the stop line associated with the traffic lights. He says he saw a single light apparently from a motorcycle in the kerbside lane. He did not consider there was any danger from either of those vehicles and continued to proceed in an easterly direction along Scarborough Beach Road. His evidence was that a split second later the defendant's motorcycle ran into the back of his car. His car ended up facing east along Scarborough Beach Road at a slight angle to its left where it had impacted on a parking sign on the north side of Scarborough Beach Road.
The defendant's evidence was that he was proceeding at a normal speed in an easterly direction along Scarborough Beach Road approaching the intersection with Flinders Street. He said the lights were red and there were cars stationary in the centre lane waiting to proceed east. He says he slowed down using his gears and moved into the kerbside lane. He says his speed reduced down to 5‑10 km/h in first gear and he had his foot out ready to stop when the lights changed to green. He says he accelerated forward passing the cars in the centre lane.
The alignment of Scarborough Beach Road east of Flinders Street is a little unusual. For traffic travelling east there are two marked lanes just before the stop line associated with the traffic lights. On the eastern side the road narrows quickly to a single lane.
The defendant said after passing the cars in the centre lane he moved his motorcycle to the right so as to be in the east bound lane. He said that required a swerve to the right and then to the left to straighten up. He said his speed as he went through the intersection was 30‑40 km/h and he got to about 60 km/h shortly after he had crossed the intersection. He says he then observed the plaintiff heading west on Scarborough Beach Road at an angle of about 45 degrees to the right. It was apparent to him that the plaintiff was doing a U turn. He said he applied emergency braking but was unable to stop before colliding with the plaintiff's vehicle which by then was facing in an easterly direction at an angle of about 45 degrees to the left. He says he observed no lights on the plaintiff's vehicle.
The most important issues to be determined are firstly the time at which the plaintiff commenced his U turn and secondly the speed at which the defendant was travelling.
There were, as I have said, a number of witnesses. Robert Colangelo and his wife Donna Kathleen Colangelo were in the first car stationary at the traffic lights at the intersection facing in an easterly direction along Scarborough Beach Rod. Valia Taylor and her son Nathan John Taylor were in the second car behind Colangelos' car. Yvonne Ann Marshall and David Marshall were in a car parked on the north side of Scarborough Beach Road facing east about 50 metres west of Flinders Street. Benjamin Robert Ballantyne was a pedestrian on the footpath on the north east corner of Scarborough Beach Road and Flinders Street. Jason Paul Anstey was a pedestrian on the north side of Scarborough Beach Road about 85 metres east of the intersection of Flinders Street. Sarah Louise Jackson was driving her motor car in a westerly direction along Scarborough Beach Road and was also about 85 metres east of the intersection with Flinders Street at the time the accident occurred.
On the issue of the driving by the plaintiff of his car the Colangelos were in far and away the best position to make observations. Mr Colangelo who was the driver of the car was a particularly good witness whose observations I have no hesitation in accepting. He was waiting at the intersection for the lights to change. He therefore had a good reason to observe the lights and I accept he was watching them. He says he observed the plaintiff's car commenced to do its U turn. He says he noticed it because he saw the lights of the plaintiff's car swing out across the roadway. Although the light in the area was reasonable it was no more than that and the plaintiff's headlights caught his attention. He was unable to say if the plaintiff's trafficator signal was on. Mrs Colangelo said the plaintiff had more or less finished the U turn when the defendant passed them.
Of the other witnesses only Anstey said he saw the plaintiff commence to move out to do the U turn. He said he only saw it incidentally. I think by that he meant it was only a casual observation. The plaintiff's car was not likely to affect Anstey's crossing of Scarborough Beach Road so he had no particular reason to notice it. His impression was that the plaintiff commenced his U turn at a time when Anstey could see the motorcycle. That would put the two vehicles relatively close together.
I do not consider Anstey to be a good witness. He gave his evidence in a hesitating and apparently uncertain manner. On many occasions there were lengthy pauses in his evidence whilst he appeared to be trying to reconstruct what had occurred. Where his evidence conflicts with that of the Colangelos I prefer the evidence of the latter.
Accordingly I find that the plaintiff commenced to do his U turn at a time when the traffic lights facing east bound traffic were red. The plaintiff had his headlights on and gave a signal of his intention to turn.
I now turn to the evidence of the speed of the defendant's motorcycle. None of the witnesses has any expertise in estimating speeds. To that extent I do not accept estimates of speed as being a true opinion based upon any qualification to give such opinion. However ordinary motorists and pedestrians in this community are able to give intelligible evidence which courts can accept. Mr and Mrs Marshall both heard the defendant's motorcycle approaching. They described its engine as being very noisy. The defendant's motorcycle was a two stroke 250CC motorcycle. The evidence is, and I accept, that such machines are notoriously noisy and accordingly the noise of itself would not be a reliable indicator of speed. Mr and Mrs Marshall both said that a motorcycle passed them at high speed but they were unable to give any estimation of speed. Mrs Marshall's words it "just screamed past" were a graphic picture of high speed. Ms Taylor also described the speed of the motorcycle as possibly 70 km/h as it passed her, but acknowledged she was not a good judge of speed. Nathan Taylor was able to be more precise. He is a young man obviously interested in motorcycles and says he had some knowledge of them. He described the motorcycle as travelling at speed estimating it to be between 70 and 80 km/h. He said he based that estimation upon both the impression of speed but also the noise of the engine as it went past. I think some weight can be given to his estimation in view of his knowledge of motorcycles of this kind.
The Colangelos also described the motorcycle as travelling fast. Mr Colangelo said as the motorcycle passed him he was concerned because of its speed and hesitated in proceeding forward himself. Both Mr and Mrs Colangelo described the way in which the defendant manoeuvred from the left hand side of Scarborough Beach Road into the centre of the road to proceed east. Mr Colangelo described the plaintiff as leaning heavily to the right and then to the left in order to make the manoeuvre. Mrs Colangelo said that he almost left the motorcycle whilst performing that manoeuvre.
It is well known and I can take judicial notice of the fact that the turning of a motorcycle is achieved by leaning in the direction in which the motorcycle is to turn. It is not simply a matter of sitting straight up and turning the handle bars. The graphic descriptions by the Colangelos of the way in which the defendant had to lean dramatically to achieve the line travelling east down Scarborough Beach Road is strong evidence that he was at the time travelling at excessive speed. If he had been travelling at a moderate speed then the lean to the right and then back to the left would not have needed to have been so dramatic.
The evidence of Ballantyne was tendered under s 79C of the Evidence Act because he was unavailable. There was no objection to the tender of his statement and a transcript of evidence given by him at the prosecution of the defendant.
I interpolate to say that the fact that the defendant was prosecuted is not relevant to these proceedings. I do not know with what he was charged or what the outcome of such prosecution was. On the same subject the defendant was at the time disqualified from driving. I do not know why and the fact that he was disqualified has no impact upon my findings. It was suggested by counsel for the plaintiff in cross‑examination of the defendant that it should have an effect upon his credibility but I do not consider that to be so.
Accepting the reservations of the weight I should give to the evidence of Ballantyne I note from his deposition a number of matters. His occupation is described as a motor mechanic which presumably means he has some knowledge of motor vehicles. Relevant paragraphs of his deposition read as follows:
"I heard a motor cycle coming and stopped to look, it was a RGV two stroke motor cycle and it was very loud. I probably saw it about 50 metres before the lights near the Gull Service Station. It was on Scarborough Beach Road and heading towards Charles Street.
I watched the bike come up the road, I was going to cross the road but saw the bike was coming very fast. The lights would have been red for him because I was going to cross but he was coming so fast I had decided to wait.
As the bike got near the lights I saw him crouch down and he opened it up, he accelerated through the lights and past me. I would describe his speed as excessive, he was going flat out. The bike was also very loud it was revving high. As he was coming up the road he went to the left and overtook a car at the lights."
The collision occurred when the motorcycle slid under the plaintiff's car. The damage was entirely to the rear of the car. Of note was the evidence of Constable Dijkmans who said the tow bar assembly was bent to the right. Whilst again courts must be cautious when drawing conclusions from damage caused to motor vehicles in a collision, such damage is consistent with a substantial degree of speed by the defendant.
In the circumstances I find the defendant was travelling at an excessive speed. I consider a reasonable finding would be a speed of not less than 70 km/h at its maximum.
Evidence was given by the Marshalls and Ms Taylor that when the defendant passed them the traffic lights were green. That evidence is inconsistent with the evidence of Mr Colangelo. For the reasons I have stated, where there is a conflict between the evidence of Mr Colangelo and others I prefer the evidence of Mr Colangelo. In particular, there was no reason why the Marshalls would have any particular interest in the colour of the traffic lights. The evidence of Ballantyne suggests that the lights may have been red against the defendant when he went through, but again to the extent that is inconsistent with the evidence of the Colangelos, I prefer the latter. In any event the plaintiff does not allege the defendant rode his motor cycle through a red light.
Negligence is a breach of a duty of care. All motorists have a duty of care. That duty arises when if it is breached it is reasonably foreseeable that an accident would occur. A person in the plaintiff's position of doing a U turn has such a duty. The duty is encapsulated in some of the traffic regulations:
Regulation 603(b) provides:
"A driver making a U turn shall give way to all other vehicles and to all pedestrians."
To that should be added reg 601 which provides:
"Where any of these regulations require a driver to give way to a person or vehicle, the requirement takes effect when there is a reasonable possibility that, if he proceeded, his vehicle would collide or come into contact with, or create any other dangerous situation with regard to, that person or vehicle; and, in that event, he is obliged to slow down to such an extent, or, as the circumstances may require, stop and remain stationary for such time, as may be necessary to allow that person or vehicle to continue on his or its course."
Regulation 803 requires a driver about to make a U turn to give a trafficator signal continuously before making the turn. Regulation 805 provides:
"A driver shall not drive his vehicle so as to make the U turn –
(a)unless the turn can be made with safety or without interfering with the movement of other traffic; or
(b)within 30 metres of a traffic control signal."
There is a duty on the defendant to travel at a speed which was appropriate to the circumstances. Both had a duty to keep a reasonable lookout.
The plaintiff when proposing to perform a U turn had a high duty of care. That duty arises because of the possibility of coming into contact with traffic coming in either direction. In the circumstances where the plaintiff was about 50 metres away from the traffic lights, there was obviously a risk that even if he commenced his U turn on a red light it could change to green and a motor vehicle, particularly a motorcycle, capable of high acceleration could move from the lights quickly creating a dangerous situation. There was no need for the plaintiff to do a U turn in the sense he could have proceeded forward and turned at a safer and more convenient location. For example, there was a parking area behind the shops on the north side of Scarborough Beach Road so had the plaintiff gone forward and turned into Flinders Street he would have been able to re‑trace his path without risk. He could have travelled further west along Scarborough Beach Road to find a more convenient location to turn, for example, by going into the Gull Service Station mentioned by Ballantyne. The plaintiff did not take such a course. In my view to fail to do so shows a want of care to those road users who might come into conflict with him.
When the plaintiff commenced the U turn there was no risk of collision. The lights were red against the oncoming traffic. The traffic stopped some 75 metres away on the other side of Flinders Street. To turn as he did would not in my opinion show any lack of care on his part. There was no failure to give way as defined in reg 601 as there was no vehicle he was likely to collide with or come into conflict with or create any dangerous situation.
Having decided to turn, it was suggested by counsel for the defendant that because of the proximity of the traffic lights he ought to have performed the U turn as quickly as he could so as to be away from the area promptly. In his evidence the plaintiff said he performed the U turn in a normal manner being neither particularly fast or particularly slow. Counsel for the defendant attempted to show by means of mathematical calculations that the plaintiff's speed was excessively slow. I think reliance upon such calculations is somewhat hazardous. I prefer the evidence of the plaintiff that his turn was of a normal speed although he was unable to say what speed he had achieved at the time of the collision. What is important, however, is that he did not attempt to perform the U turn any more quickly when by reason of the proximity of the traffic lights he ought to have done so. In my opinion such a failure is a failure to take proper care and accordingly is negligent.
It was suggested by counsel for the defendant that when the plaintiff observed the defendant behind him he ought to have taken evasive action. I think by then it was too late. The position in which the plaintiff found himself was by then ordained and I do not consider in the very short time available there was anything practical that could be done and accordingly a failure to take further evasive action would not in my opinion constitute negligence.

The defendant had travelled through this area many times before this night. He must have been well aware of the nature of the roadway and the truncation to a single lane in Scarborough Beach Road east of Flinders Street. He would have been aware of the fact that there was a shopping centre there. This was Thursday night. Everybody would know that Thursday night is a late trading night. Accordingly the plaintiff should have been aware of the likelihood of traffic and pedestrians in the vicinity of Scarborough Beach Road just east of Flinders Street. Far from riding his motorcycle cautiously or even sensibly the defendant has accelerated away from the lights as fast as he can. He has behaved in a totally reckless manner without regard to the safety of himself or anybody else on the roadway. The defendant's negligence was gross and was the substantial cause of the accident.
Both counsel referred me to a number of authorities. I have read them, but none seems to me to warrant reference in this judgment. The principles of negligence are simple enough. Most of these cases turn on their own facts. This is such a case.
There is a high duty of care upon a motorist doing a U turn and a failure to take care even to the extent he has failed to do so renders him liable. But the plaintiff's U turn relatively close to the intersection instead of using some safer way to reverse his path, and his failure to turn as quickly as possible are minor transgressions compared to the defendant's recklessness. The proportion of culpability is substantially on the defendant. I consider an appropriate apportionment of liability to be 80 per cent against the defendant and 20 per cent against the plaintiff.