Henrick v Kubale - [2000] WADC 222

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HENRICK -v- KUBALE [2000] WADC 222

CORAM: WILLIAMS DCJ

HEARD: 27 - 28 JULY 2000

DELIVERED : 31 AUGUST 2000

FILE NO/S: CIV 2510 of 1997

BETWEEN: MICHAEL RALPH HENRICK
Plaintiff
AND
GLEN HOWARD KUBALE
Defendant

Catchwords:

Torts - Negligence - Road accident cases - Plaintiff alleging defendant negligent in turning across his path at controlled intersection

Legislation:

Evidence Act 1906

Result:

Plaintiff's action dismissed

Representation:

Counsel:

Plaintiff: Mr K Pratt
Defendant: Mr J Brooksby

Solicitors:

Plaintiff: D'Angelo & Partners
Defendant: Greenland Brooksby

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

Nil

Case(s) also cited:

Arthur v Cooke (1988) 6 MVR 466
Cross v Reilly (1979) 21 SASR 553

WILLIAMS DCJ: On 6 June 1996 at about 1.15 pm the plaintiff was the rider of a Honda motorcycle being driven in an easterly direction along Scarborough Beach Road, Osborne Park. At the same time the defendant was driving a white Mazda utility in a westerly direction along Scarborough Beach Road and in attempting to execute a right hand turn into Hutton Street the motorcycle and the Mazda utility collided.
The plaintiff alleges the accident was caused by the negligence of the defendant in that he:
(a)turned in front of or attempted to turn across the path of the plaintiff where there was neither sufficient time nor space to do so safely.
(b)failed to keep any or any proper lookout.
(c)failed to give way to the plaintiff.
(d)failed to ensure that it was safe to turn right.
The plaintiff was injured in the accident and he brings this action for damages. I am required to determine the issue of liability only.
At the point of collision, Scarborough Beach Road runs in a generally east west direction. For vehicles travelling in each direction there are two lanes being a kerbside lane and a centre lane. Approximately 60 metres prior to its intersection with Hutton Street there is a slip lane for vehicles travelling west and wishing to turn north into Hutton Street. Hutton Street forms a t-junction with Scarborough Beach Road thus intersecting it on the northern side but not on the southern side. The intersection is controlled by traffic lights but those traffic lights do not include green arrows for traffic turning right into Hutton Street.
The plaintiff was born on 25 June 1972 and is a university student and had held a motorcycle licence for some five to six years. On the day in question he was travelling in an easterly direction along Scarborough Beach Road.
The plaintiff's motorcycle is a dark blue 750cc four cylinder motorcycle with a V configuration. He did not know the horsepower of the engine but he accepted that it was a fairly powerful motorcycle which could out accelerate any car on the road.
According to the plaintiff's evidence he was travelling in the centre lane at a speed of 60 to 65 kilometres per hour. He was aware of the intersection with Hutton Street and of the fact that it was controlled by traffic lights. When he last recalled seeing the lights facing him they were green. At that stage he was some 50 to 100 metres back from the intersection. He did not see the lights turn amber or red.
He described the vehicle he collided with as a white utility. When he first saw the utility it was in the slip lane and he thought it was stationary. He described the vehicle as turning in front of him. He has no recollection of the collision.
He accepted on the day in question that visibility was good, the road was flat and there was not much traffic.
In cross-examination in relation to this matter the plaintiff stated that there were no other vehicles in front of him in the centre lane. There were four to five cars in the kerbside lane which were slowing down. He was further back than those four to five vehicles, nearer to 100 yards back when he saw the lights were green. As he passed those cars they were slowing down. Prior to passing the four to five cars he was in the kerbside lane and he wanted to pass and he moved out to the centre lane.
The defendant is a plumber and on the day in question was driving the Mazda utility in a westerly direction in Scarborough Beach Road. He had entered into the slip lane intending to turn right into Hutton Street. As he approached the lights they were green and changed to orange when he entered the intersection. There were two cars following in Indian style in the kerbside lane travelling in an easterly direction and when they stopped at the stop line he turned into the intersection. The lights were red at that stage. Just as he commenced to turn into the lane he saw the motorcycle. When he first saw the motorcycle it was in the centre lane and some 30 to 40 metres back from the intersection. He watched the motorcycle until he knew that there was going to be an impact and then lay down on the seat. He described the motorcycle as going 80 to 90 kilometres per hour. The rider of the motorcycle had his head down and did not look up. He was looking at the top of the motorcycle rider's helmet.
He described his vehicle as being four to five feet into the centre lane for east bound traffic and stationary at the time of impact.
The motorcycle hit the left front of the plaintiff's Mazda utility. It was the defendant's evidence that if the plaintiff had looked up there would have been plenty of room to go around his vehicle.
The motorcycle was in the centre lane when he first saw it. There had been nothing in that lane when he had looked previously.
There were a number of independent witnesses who observed different aspects of the accident. Mr Dennis Polley runs a fabricating business. Shortly prior to the accident he was driving a Holden utility in a southerly direction in Hutton Street towards the intersection with Scarborough Beach Road with the intention to make a right hand turn into Scarborough Beach Road to travel west. As he approached the lights he was travelling in the centre lane in Hutton Street and as the lights facing him were red he stopped at the stop line. He noticed the defendant's

four-wheel drive tray utility in the slip lane moving at a slow pace. He described that as about walking pace. The utility continued along the slip lane and across the stop line and proceeded to cross the intersection and that is when the accident occurred. At that time the lights facing him were still red. He had a quick glimpse of the motorcycle colliding with the utility. He described the motorcycle as coming through the intersection "at quite a fast pace, at least 80 kilometres per hour".
Mr Lloyd Smith was a salesman with Jason Mazda at the time of the accident. Jason Mazda is situated on the north west corner of the relevant intersection. At the time of the accident he was at work and on the showroom floor. He described the showroom as having an elevated view of the intersection. He saw a motorcycle travelling east go past the showroom and into the intersection. He described the motorcycle as travelling at 80 to 90 kilometres per hour with the rider having his head down and accelerating.
When he first saw the motorcycle it was 15 to 20 metres from the intersection and it appeared to be in the centre lane. The Mazda utility was positioned partially turning to the right in Hutton Street and the motorcyclist rode straight into the utility. There was no attempt on the part of the motorcyclist to slow up or to stop. The utility was in the process of turning and there was ample room for the motorcycle to pass inside the utility. The motorcyclist just rode straight into the utility. There was an enormous impact. The motorcycle rider hit the bull-bar and the windscreen.
It was the motorcyclist going past that directed his eye to it. He was not able to say anything about the traffic lights. He described other cars as being at the intersection but was unable to say if they were stationary. It was the speed of the motorcycle that attracted his attention.
Mr Bradley Sigler is a technician. At the time of the collision he was driving a Toyota Town Ace van which was high enough to enable him to see over the top of other vehicles. He was travelling in an easterly direction in Scarborough Beach Road in the kerbside lane and approaching the t-junction with Hutton Street. As he approached the lights turned amber and the vehicle in front of him stopped at the stop line. He stopped behind that vehicle. He heard a motorcycle on his right hand side. It was accelerating and caught his attention. He then saw the motorcycle. He was stationary when he first heard it. It went past him in the centre lane and into the utility. He described the motorcycle as travelling at a quick speed. At that time the utility was into the centre lane. He was watching the motorcycle to see whether it would brake or not. He noticed that the motorcycle moved a little bit to its left and then collided with the utility. He was unable to say what the lights were at that time. The utility was stationary when the crash occurred.
Mrs Laurel Jones did not give evidence. However her statement was admitted under s 79C of the Evidence Act 1906. At the time of making her statement she was a part time receptionist.
At the time of the accident she was driving a Ford Falcon sedan in an easterly direction on Scarborough Beach Road and travelling in the kerbside lane. As she approached Hutton Street she slowed down as the vehicles in front of her had slowed. She had come to a stop or almost to a stop. She was four or five cars back from the intersection with Hutton Street. The right hand lane was clear. (I take that to mean the centre lane). She then saw a motorbike pass her on her right travelling east. The motorcycle sped up after it passed her. She did not know whether the motorcycle was travelling above or below the speed limit. As it entered the intersection it collided with a four-wheel drive utility. The utility appeared to have been turning right into Hutton Street from Scarborough Beach Road. The motorcycle did not slow down prior to colliding with the utility. At the time of impact she looked at the traffic lights facing her and they were red. She was unable to say what colour the lights were facing her as the motorcycle crossed the white line associated with the intersection. The motorcycle did speed up before it entered the intersection. She heard it speed up. The transcript of Mrs Jones evidence given in proceedings in the Court of Petty Sessions on 26 August 1997 at p 24 indicates that the motorcycle that was in the accident caught her attention because it revved up just as it was passing her. That caused her to look over to see that the motorcycle had picked up speed and was going down the right hand lane.

Findings of fact

The plaintiff in this action accepts that as he approached the intersection there were four or five cars in front of him in the kerbside lane slowing down. He wanted to pass those vehicles and he moved to the centre lane. It is clear from the evidence of both Jones and Sigler they were in that kerbside line of traffic. The only reason for the traffic to be slowing down was because the lights had changed to amber. It is my finding that the plaintiff pulled out from behind that line of traffic in order to pass that traffic and attempt to run the lights. At the time of the collision the lights facing the plaintiff were red.
Jones was four to five cars back from Hutton Street. Her evidence was that she heard the motorcycle rev up just as it was passing her and confirmed that it accelerated past her. Smith was standing at a point he described as approximately 30 metres from the intersection. On the basis of his evidence and the evidence of Sigler, Jones and the defendant I am drawn to the conclusion that the motorcycle was travelling at a very fast speed. Estimates of speed vary between 80 and 90 kilometres in a zone which had a limit of 60 kilometres. Smith and the defendant gave evidence that the motorcycle rider had adopted a posture on his motorcycle where his head was down. In answer to a question put to him by counsel for the defendant it was suggested to him that he had not looked at the lights for 100 metres. He stated that it only takes two or three seconds to travel 100 metres. On a mathematical calculation that suggests a speed of between 120 and 180 kilometres per hour.
Both the defendant and Smith say that the plaintiff did not look up. The plaintiff's evidence confirms that when he says that he did not see the lights after he passed a point approximately 100 metres back from the lights.
The fact that the plaintiff pulled out from the line of traffic confirms what the defendant says about this matter. He says that he looked up the centre lane and did not see anything and when the traffic came to a halt in the kerbside lane he went to execute the turn. As he did so he noticed the plaintiff's motorcycle approximately 30 or 40 metres away. He put his brakes on and stopped and there was an impact. It could probably have been avoided if the plaintiff was keeping a lookout.
My finding is that the plaintiff pulled out from a line of traffic of four to five cars at a speed of 80 to 90 kilometres per hour in an attempt to run the lights. On the other hand the defendant had noted that the centre line was clear, waited for the traffic in the kerbside lane to come to a halt and then proceeded to turn. It is not as though he did not keep a lookout because he noted the presence of the motorcycle some 30 to 40 metres away. It was then that he stopped his vehicle and the collision occurred.
In my view the plaintiff has not made out any of the particulars of the defendant's negligence.
Firstly it is said that the defendant was negligent in that he turned in front of or attempted to turn across the path of the plaintiff where there was neither sufficient time nor space to do so safely. In my view at the time that the defendant went to execute his turn it was safe to do so. It was only the fact that the plaintiff had pulled out from behind a line of traffic at great speed in an attempt to run the lights that the collision occurred.
Secondly it is said that the defendant failed to keep any or any proper lookout. In my view he did keep a lookout. He noted that there was no traffic in the centre lane. He did not make his turn until the traffic in the kerbside lane had come to a halt. He was still looking at the centre lane as he saw the plaintiff some 30 to 40 metres away.
It is next said that he failed to give way to the plaintiff. In my view I have covered that in dealing with the first two grounds of negligence.
It is next said that the defendant failed to ensure that it was safe to turn right. In my view he did take the necessary precautions and the accident happened by reason of the plaintiff's manner of riding.
In my view the plaintiff does not succeed on the question of liability and the action should be dismissed.