| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : HIGGINS -v- GREEN [2002] WADC 165 CORAM : JENKINS DCJ HEARD : 25 JULY 2002 DELIVERED : 2 AUGUST 2002 FILE NO/S : CIV 2355 of 2001 BETWEEN : SIMON ANTHONY HIGGINS Plaintiff
AND
DAVID GEORGE GREEN
Defendant
Catchwords: Negligence - Road accident cases - Standard of care - Motor cycle colliding with rear of vehicle stopped on road verge - Contributory negligence
Legislation: Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947
Road Traffic Code
Result: Judgment for the plaintiff - Plaintiff's damages reduced by 50 per cent to take account of his contributory negligence
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Representation:
Counsel:
Plaintiff : Mr M T Posa
Defendant : Mr T R D Mason
Solicitors:
Plaintiff : Hoffmans
Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
March v E & MH Stramare Pty Limited & Anor (1991) 171 CLR 506
Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25
Case(s) also cited:
Nil
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1 JENKINS DCJ: The plaintiff in this action claims damages for personal injuries suffered in a motor vehicle accident on 23 October 1998. The accident occurred on the verge of Regan Street, Rockingham, when the motor cycle ridden by the plaintiff collided with the rear of the stationary motor vehicle being driven by the defendant. The trial has been limited to the issue of liability, damages having been previously agreed between the parties.
Pleadings 2 The plaintiff claims that the defendant was negligent in that he: (i) drove without due care and attention; (ii) failed to indicate a right hand turn in breach of the Road Traffic Code; (iii) drove onto the wrong side of the road; (iv) drove in a reckless manner; (v) drove onto the grass verge without warning when it was unnecessary to do so; (vi) failed to keep any or any proper lookout for the plaintiff; (vii) failed to steer or control his vehicle so as to avoid the collision; (viii) failed to stop or slow down before coming into the path of the plaintiff's motor bike; (ix) drove into the path of the motor bike when it was too late for the plaintiff to take adequate "avoidance" action. 3 The plaintiff's statement of claim includes a further six particulars of negligence based on various breaches of the Road Traffic Code. At trial the plaintiff's counsel abandoned reliance upon these alleged breaches. 4 The defendant denies that he was negligent and alleges that the accident was caused, or substantially contributed to, by the negligence of the plaintiff. The defence pleads that the plaintiff was negligent in that he: (i) failed to keep any or any proper lookout;
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(ii) rode the motor bike at a speed that was excessive in the circumstances; (iii) rode the motor bike whilst intoxicated; and (iv) failed to stop, slow down or steer clear of the vehicle -– which was then stationary.
Facts 5 The facts as I find them are that some time in the afternoon of 23 October 1998 the plaintiff went to his friend's house in Regan Street, Rockingham. He knew that another acquaintance had recently purchased a 250CC off road trial bike ("the motor bike") and one of his purposes in going to the premises in Regan Street was to have a ride on the motor bike. The plaintiff was an experienced motor bike rider. However he did not have and had never had an appropriate licence for such a motor bike. 6 When it was his turn to have a ride, the plaintiff put on boots and a helmet and rode initially in a north easterly direction along Regan Street for approximately 50 m. He then rode across Regan Street onto the southern side of the road and drove approximately 150-200 m in a south westerly direction. 7 The plaintiff said that at all times he was driving on the grass verge adjacent to the bitumen road. The defendant disputes this and says that for at least some of the time the plaintiff was riding on the bitumen roadway. I have had the advantage of viewing photographs of Regan Street. These photographs show that Regan Street is a long flat stretch of bitumen with a grass verge on the southern side of the roadway that extends up to the edge of the bitumen. There appears to be little, if any, difference between the level of the bitumen and the level of the grass verge. The grass verge itself is some 5 m wide. The grass verge on the southern side of the road has a line of substantial trees and shrubs about 5 m in from the southern edge of the bitumen road. Between the road and that line of shrubs and trees the grass verge is flat and unobstructed. There are no houses on the southern side of Regan Street and thus there are no driveways or paths dissecting the grass verge. Regan Street, it seems, is a quiet suburban street with only a line of houses on its northern side. 8 The plaintiff and his witness, another friend who was at the same house, Mr Brett Johnson said that at all times the plaintiff was riding on
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the grass verge. The defendant did not see the plaintiff prior to the accident. However, his de facto partner, Ms Eileen Coe and, his next door neighbour, Ms Lisa Taylor were in the front yards of their respective homes which are on the northern side of Regan Street, virtually opposite where the point of impact was between the defendant's vehicle and the motor bike. They saw the plaintiff for a very short period of time prior to the accident and both of them say that the plaintiff was riding his motor bike on the road. 9 I have also had the advantage of seeing photographs that the defendant took of the edge of the bitumen and the grass verge at the point of impact. These indicate gauge marks in the grass on the verge about 1½ m in from the roadway. 10 I find that the plaintiff immediately prior to the accident was riding at least partially on the bitumen roadway but that it is likely that for most of the length of Regan Street he had been riding on the grass verge. 11 The plaintiff said that he was riding at 45-50 km/h. Mr Johnson said that he was travelling at approximately 50 km/h. Ms Coe said that she had been driving for 40 years and had experience in driving motor bikes. She said that the motor bike when she saw it was definitely speeding. Ms Taylor said that her initial reaction when seeing the motor bike was that it was speeding. Both Ms Taylor and Ms Coe emphasised the sound that the motor of the motor bike was making as an indication of its speed. They denied that the sound could have been the usual sound of an off road trail bike. As I will subsequently explain, in my opinion the plaintiff's recollection of his actions immediately prior to and after the accident are not reliable. Ms Coe and Ms Taylor were closer to the plaintiff and the motor bike than Mr Johnson. I accept their evidence that the plaintiff was speeding. 12 In making this finding I also rely on the fact that the plaintiff was trying out the motor bike for the first time on a piece of long flat apparently deserted verge and roadway. In my opinion there would have been a significant temptation for him to speed. 13 It is difficult to know to what extent the plaintiff was speeding as neither Ms Coe nor Ms Taylor gave estimates of his speed. I also accept that given the noise of the motor bike engine, the lack of any other vehicles on the road and the size of the motor bike it is likely that to Ms Coe and Ms Taylor the bike appeared to be going faster than it
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actually was. In my opinion the bike was doing more than 60 km/h. I cannot say to what extent it was going faster than this. 14 As the plaintiff rode in a south westerly direction along Regan Street, the defendant was travelling in the opposite direction to his home at 44 Regan Street. He had been at work. After he finished work at about 4.00 pm he went to the TAB, placed a bet and then drove to his home via Alexandra Street. Thus he was travelling in a north easterly direction along Regan Street. As is his usual practice, his intention was to turn off Regan Street onto the grass verge on the southern side of the street, put his car into reverse and then reverse across Regan Street into a driveway down the side of his house. Prior to commencing this procedure he saw Ms Coe and Ms Taylor outside their respective houses. He also checked to see whether there were any children on that side of the road as Ms Taylor had children who sometimes played outside. He said he looked down Regan Street but did not see the plaintiff riding towards him. He then put on his right hand indicator and turned onto the grass verge as I have described. 15 There is a dispute between the parties as to whether the defendant did indicate. The plaintiff says that he did not see the defendant indicating. Mr Johnson did not notice the defendant's car until it turned off the road and thus he did not see whether the defendant had put on its indicator. Ms Coe and Ms Taylor both gave evidence that the defendant indicated. I accept that the defendant did indicate for a short period of time prior to commencing the turn. 16 Prior to the turn the defendant was driving on the left hand side of the road but more towards the middle of the road. The bitumen carriageway of Regan Street is only 5 m wide and apart from the plaintiff, who the defendant did not see, there was no other traffic in the vicinity. The defendant was driving slowly prior to making his turn and he continued at a slow speed to turn off Regan Street onto the grass verge so that his vehicle was at right angles to the bitumen carriageway and wholly on the grass verge. He then put on his brakes, stopped and prepared to put his car into reverse. Throughout this manoeuvre he had not seen the plaintiff. I acknowledge that he had looked up the roadway to make sure there was no other traffic coming but despite this he did not see the plaintiff. He felt the impact of the motor bike with his car and felt his car lift up slightly as a consequence before coming back down to rest. 17 Meanwhile the plaintiff says that he saw the defendant's vehicle when he was about 150 m away. He did not see the defendant's indicator.
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By the time he realised the defendant was going to turn into his path, he thought of going left to avoid the defendant, swerved right and did a hard turn in an attempt to avoid the rear of the defendant's vehicle. He also braked but there was no time to avoid a collision. The plaintiff said that the plaintiff's back tyre with which he collided was just on the road and that the defendant's vehicle was still moving at the time he collided with it. 18 Mr Johnson said that the defendant's vehicle's turn and the impact was pretty simultaneous. He said that the car was on the grass verge and the back left wheel was also on the verge but that that car had not stopped even momentarily prior to impact. 19 Ms Coe said that after seeing the defendant indicate she heard an enormous roar from her left. She looked and saw the motor bike which she said was definitely on the bitumen. She said that she stood up and swore and said that she was going to take the motor bike's registration number because it was speeding. She said that she didn't have time to do this because the plaintiff looked at her, got into a wobble, went up onto the grass verge and collided with the defendant's motor vehicle. She said that the rider got thrown off onto the road and the front wheel of the motor bike was under the back wheel near the petrol tank of the defendant's vehicle. 20 Ms Taylor said that she saw the defendant's car slowing down and his indicator go on. She said that then she heard the motor bike and the motor sounded like it was screaming. She said that the motor bike was on the left hand side of the road and she saw the motor bike lean to the right, skid onto the grass verge and its back wheel spun out and hit the back wheel of the defendant's car. 21 I find that the defendant's vehicle had stopped only moments prior to the point of impact. In this respect I accept the evidence of the defendant, Ms Coe and Ms Taylor in preference to that of the plaintiff and Mr Johnson. Mr Johnson was too far away for me to rely upon his perception of whether the defendant's vehicle stopped. The plaintiff's recollection of events immediately prior to and after the accident is in my opinion unreliable. This is borne out by the differing descriptions that Ms Coe, Ms Taylor and the defendant gave as to the assistance they rendered the plaintiff and the plaintiff's recollection of the same events immediately following the accident. The plaintiff does not recall any assistance being rendered to him. Whereas the defendant's three witnesses gave clear and, in my opinion, honest evidence about the assistance given.
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The three defence witnesses in my assessment were decent, caring people. I simply do not accept that they would have stood back and not rendered any assistance to a severely injured young man. I do not believe that the plaintiff is lying about what occurred before or after the accident, merely that the injuries he received in the accident and the shock that it would have given him has rendered his memory of these events unreliable. 22 I therefore also accept the defendant's case that the defendant's vehicle was entirely off the road when it stopped. Thus the collision occurred on the grass verge. I find the motor bike ended up on the grass verge, as Ms Taylor described. Her description of the accident accorded with common sense and the logical movement of a motor bike when its driver was attempting to avoid an accident. In this respect Mr Johnson agrees with the defendant's witnesses. It also appears to me to be consistent with the gauge marks on the grass verge as shown in the photographs taken the same day.
Findings with respect to particulars of negligence 23 The defendant was clearly under a duty of care to other road users only to make the turn onto the grass verge in a safe manner and in a manner so as to avoid a collision with other road users. This duty of care was owed, not just to road users who were prudent and driving carefully but also to other drivers who were themselves negligent. As Deane J said in March v E & MH Stramare Pty Limited& Anor (1991) 171 CLR 506, 521 in respect of the duty of care owed by one road user to another: "The respondent was guilty of a breach of the duty of care which he owed to other road users. It is true that it is unlikely that a careful and attentive driver would have failed to see the lights of the parked truck and to have taken steps to avoid it. As has been said, however, the duty of care owed by the second respondent was also to the inattentive (and intoxicated) driver whose presence upon the road was obviously foreseeable." 24 By turning across the path of the plaintiff the defendant breached this duty of care. It does not matter whether the plaintiff was on the roadway or the grass verge. The defendant had a duty to give way to any person who was on either the bitumen road or the grass verge, if it was foreseeable that such a person would be present. I do not believe that the presence of the plaintiff on a motor bike was such an unlikely occurrence as to be able to say that it was not foreseeable by a reasonably prudent driver. Further, if it was reasonably foreseeable that there would be a
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motor bike or some other kind of powered vehicle travelling on the grass verge and/or on the bitumen close to the grass verge then it is foreseeable that such a person will be speeding and be inattentive. The duty owed by the plaintiff as I have already said is nonetheless still owed to such a negligent person. 25 The defendant breached his duty of care by turning across the path of the plaintiff and then stopping his vehicle in the plaintiff's path. This was a failure on the part of the defendant to keep any or any proper lookout for the plaintiff and thus to steer or control his vehicle so as to avoid the collision. There is no rational explanation as to why the defendant failed to see the plaintiff coming in the opposite direction. There is no suggestion that there was any problem with visibility and as I have said the road and verge ahead were unobstructed. If the defendant had been keeping a proper lookout as he was under a duty to do then it is inevitable that he would have seen the plaintiff and have been in a position to avoid the accident. The accident was caused by the defendant's failure to keep a proper lookout, observe the plaintiff and steer his vehicle so as to avoid the accident. In this sense it can also be said that the defendant drove without due care and attention. 26 Thus the defendant is liable for the damages caused by the collision.
Findings with respect to contributory negligence 27 In Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25, 29 Hayne J said that apportionment legislation such as the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947: "is predicated upon a finding that a person suffers damage as a result partly of the person's own fault and partly of the fault of any other person or persons. No doubt the making of the apportionment which the legislation requires involves comparison of the culpability of the parties, ie, the degree to which each has departed upon the standard of what is reasonable, but that is not the only element to be considered. Regard must be had to the relative importance of the acts of the parties in causing the damage and it is the whole conduct of each negligent party in relation to the circumstance of the accident which must be subjected to comparative examination." 28 The starting point is to say that I find that the plaintiff has suffered damage as a result partly of his own fault and partly of the fault of the
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defendant. The plaintiff says that he saw the defendant's vehicle from approximately 150 m away. If this is the case then he should have noted that the vehicle was slowing down and he should have noted that it was indicating to turn right. A reasonable and prudent motor bike rider in the plaintiff's circumstances would have foreseen that it was possible that the defendant intended to drive onto the grass verge. He would also foresee that as he was riding a motor bike at a considerable speed, without number plates and at least partly on the grass verge that the defendant may not see him or may underestimate his speed. In these circumstances I find that the plaintiff was negligent in that he failed to keep any or any proper lookout for the defendant's turning vehicle, rode the motor bike at a speed that was excessive in the circumstances and failed to stop, slow down or steer clear of the defendant's vehicle. 29 The second step is for me to make an assessment of the apportionment which the legislation requires by making a comparison of the culpability of the parties. In doing this regard must be had to the relative importance of the acts of the parties in causing the damage. 30 In my opinion both parties should bear equal responsibility for the accident. The defendant for the reasons I have given earlier should have looked ahead not only to the bitumen road but also the grass verge to see if any vehicle or person was travelling on it. However the likelihood of a motor bike travelling at approximately 60 km/h along the grass verge was a relatively unlikely although foreseeable event. I also note in assessing the defendant's culpability that he had in fact managed to complete his turn and bring his vehicle to a stop, albeit momentarily, prior to the accident. 31 The plaintiff was riding the motor bike at least partially on a grass verge that was not intended to be used as a roadway and had no marked path on it. He was travelling at a considerable speed and despite seeing the defendant for some 150 m failed to slow his motor bike to take account of the presence of the defendant's vehicle on the roadway. 32 I regard the plaintiff's conduct as falling short of that which would be expected from him. That failure to take reasonable care for his own safety contributed to his injuries in that but for his negligent acts the accident would not have occurred. Consequently the plaintiff's damages should be reduced to such an extent as I think just in accordance with his degree of negligence. In my opinion a reduction of 50 per cent is just. Such a reduction reflects my view that both parties are equally culpable for the plaintiff's injuries.
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Conclusion
33 I find the first defendant liable in damages to the plaintiff for loss and damage sustained by him as a consequence of the accident. However the plaintiff's damages should be reduced by 50 per cent to take account of his contributory negligence.
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