Hinsley (Now Robson) v Snashall

[1990] TASSC 99

Serial No B22/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Hinsley (now Robson) v Snashall [1990] TASSC 99; B22/1990

PARTIES:  HINSLEY (now ROBSON)
  v
  SNASHALL

FILE NO/S:  640/1985
DELIVERED ON:  22 May 1990
JUDGMENT OF:  Wright J

Judgment Number:  B22/1990
Number of paragraphs:  28

Serial No B22./1990
List "B"
File No 640/1985

HINSLEY (now ROBSON) v SNASHALL

REASONS FOR JUDGMENT  WRIGHT J

22 May 1990

1. This is an action for damages arising out of a motor accident on Main Road, New Town at about 7pm on 21 December 1984.

1. The plaintiff, driving her 1977 Citroen motor car, had parked it adjacent to the kerb approximately 85 metres south of the light controlled junction at Creek Road. At the junction, there are two traffic bays for south bound traffic but there are no traffic lanes for south bound traffic beyond that point, although there are intermittent double white lines separating south bound and north bound traffic which commence on the far side of the junction. Beyond the junction there are black and white "no parking" markings on the kerb. Beyond those markings there is a bus stop and beyond the bus stop, there is a private entrance way. A short distance beyond the private entrance way is a small shop, known as "Peter's Fish Shop". The plaintiff, who was 5½ months pregnant at the time, parked her vehicle in close proximity to this shop. Accompanied by a friend and flat mate, Miss Tanya Morris, she had been Christmas shopping in the Moonah/Glenorchy area that afternoon, and they were on their way home when it was realized that they were out of milk. Accordingly she drove past Florence Street where their flat was situated intending to purchase milk at the fish shop.

1. By reason of the fact that there are two traffic bays marked at the northern and stop line of the Creek Road junction, it is obvious that vehicles travelling towards the city will frequently start off abreast of each other before merging into one stream as they travel further down the road. The road is sufficiently wide between the junction and the shop to allow two south bound vehicles to travel abreast of each other if there are no vehicles parked at the left hand kerb. With a vehicle parked close to the gutter, it may be possible for three vehicles to stand abreast between the kerb and the centre lines, but I doubt that there would be sufficient space for two moving vehicles to pass abreast of a stationary car in this position. The plaintiff estimated Main Road as being about 20 feet wide in this area but I prefer the defendant's assessment that it is approximately 12 to 13 metres across. The plaintiff said that her vehicle was the only vehicle parked at the kerb in the vicinity of the shop. She said that there were no other parked vehicles either behind her or ahead of her parked beside the kerb. She said that after leaving the shop she intended to turn across the roadway into the entrance of the New Town Velodrome which is on the opposite side of the road, almost directly opposite the shop. She denied that she intended to make a "U" turn although she said the road would have been wide enough for her to do so had she wished. She agreed that a "U" turn would have been a dangerous manoeuvre for her to attempt.

1. She said, "I considered it a pretty dangerous practice to make a 'U' turn on Main Road ...". She said she felt safer turning into the Velodrome entrance "doing the turn there and then re–entering the stream of traffic." It seems to me that the way she claimed she intended to execute the turn was not significantly safer than a "U" turn.

1. As she entered her motor vehicle she noticed that the traffic lights at Creek Road were red against traffic travelling south, but after seating herself behind the wheel and starting the engine preparatory to pulling out across the road, she saw that the lights had turned green. She waited for traffic approaching from the rear to pass her and pulled about one foot out from the kerb, but the first vehicle, which had been stationary at the traffic lights in the left hand lane, came up behind her car with its left hand indicator light operating, manifesting to her an intention to take her parking space when she left it. She said that this vehicle did not come up immediately behind her car although there was no impediment at the kerb to prevent it so doing, but rather that it took up a stationary position to the right of her vehicle and behind it so that it was occupying a substantial part of the travelled portion of the roadway.

1. The plaintiff said that two or three other vehicles stopped behind the first car. She looked carefully to ensure that there was no moving traffic coming from either direction and she commenced to execute the turn into the entrance way opposite. As she did so, she was alerted to an impending collision by her passenger calling out, "look out" or "watch out". She looked and saw the defendant's vehicle approximately one car's length away from her. She said that at this time her car had crossed into the north bound lane and the collision occurred entirely in the north bound lane. She said that she saw debris and skid marks in that lane after the accident. She said that immediately before the collision, the defendant had swerved slightly to the right. The police were summoned to attend the scene but were substantially delayed and did not arrive before the defendant's vehicle had been towed away by a tow truck some appreciable time later.

1. Under cross–examination the plaintiff agreed that she had heard a car horn, presumably the defendant's, sound a few seconds before the accident, after her passenger had cried out in warning to her. She also heard the screech of heavily applied brakes. She said that approximately five minutes after the accident she accused the defendant of being at fault because the accident had occurred on his wrong side of the double white centre lines. The plaintiff denied that she had offered to assist the defendant in having his repairs done by a panel beater known to her.

1. The plaintiff was inclined to be argumentative under cross–examination and what she said was inconsistent in some respects with Miss Morris' evidence. It was also at complete variance with much of what was said by the two defence witnesses. She was also inclined to rationalise and I think much of her account of the accident is based upon reconstruction rather than a clear recollection of events – not altogether surprising perhaps when one recalls that it is some 5½ years since the accident occurred.

1. Miss Tanya Morris was the only other witness called on behalf of the plaintiff. Whilst her evidence was broadly consistent with that of the plaintiff, there were a number of significant discrepancies. Miss Morris said that there were two or more cars parked ahead of the plaintiff's vehicle outside Peter's Fish Shop. This is significant in two respects. In the first place it tends to confirm the defendant's claim that the plaintiff's car drove out from between several parked vehicles but on the other hand, it appears to me more likely that the car waiting to take the plaintiff's parking space would pull up in the way described by Miss Morris and, indeed, the plaintiff herself, if the parking area at the kerb was already substantially occupied by other vehicles. Thus, there is confirmation of the plaintiff's claim that the driver of the vehicle behind was waiting for her space. From the plaintiff's evidence alone I had difficulty in understanding why the following driver did not simply park in front of the plaintiff's car, but if there were cars parked ahead of her vehicle this is readily understandable. The plaintiff said that she thought that she and Miss Morris went into the shop together and took about two minutes to make their purchase, but Miss Morris claimed that she waited in the plaintiff's car while the plaintiff alone entered the shop. In fact, she claimed that she was unable to get out of the car because of the presence of a steel and cement telegraph pole which was immediately adjacent to the passenger side front door. She claimed to have a clear recollection of this and adhered to this claim even when she was shown photographs of the scene, from which it was plain that she must have been in error because although there are indeed steel and concrete telegraph poles along this general section of roadway, there is only a wooden pole near where the plaintiff and other witnesses say her car was parked before the accident. This in itself would not have been significant, except for the fact that it indicated that Miss Morris was prepared to make and adhere to assertions of fact which were demonstrably incorrect, and accordingly, I tend to regard her evidence with some doubt. Miss Morris also supported the plaintiff's claim that the vehicles which had started off from the traffic lights at Creek Road came up behind the plaintiff's vehicle and waited in line in that position. However, by demonstration with model cars and by oral description, she indicated that the first car behind the plaintiff's vehicle was not as far across the road towards the centre lines as the plaintiff described, but rather, was straddling an imaginary line projected from the rear of the driving side of the plaintiff's vehicle parallel with the kerb. Miss Morris also said that the defendant's vehicle was only partially on its incorrect side of the road when she first saw it. She did not recall hearing the defendant blow the horn of his vehicle but perhaps this is not surprising in the circumstances. I have already referred to the plaintiff's evidence on these matters and see no reason to repeat it.

1. The plaintiff said that although she was willing to pay $20 towards the cost of towage of the defendant's vehicle she did not in fact pay anything to the defendant for this purpose. She said that he somehow managed to produce an extra $20 to enable him to pay the whole of the towage fee himself when she suggested that the police would soon be coming to the scene. In short, the plaintiff clearly implied that the defendant chose to leave the scene rather than have anything to do with a police investigation.

1. Miss Morris' evidence was not entirely consistent with this claim. She said that she returned to their shared flat in Florence Street and obtained money, the exact amount of which she could not recall, but that some part of this money was paid over to the defendant to enable him to have his car towed away. It appeared in re–examination that she actually handed over the money to the plaintiff rather than to the defendant, and it may therefore be suggested that the apparent contradiction between the plaintiff and Miss Morris was not significant. The defendant however, claimed that money was paid to him by the plaintiff to enable him to have the car towed away and it can therefore be seen that Miss Morris' testimony provides a certain amount of circumstantial confirmation of his evidence.

1. As I have already mentioned, during the course of her evidence the plaintiff agreed that she knew it was dangerous to perform a "U" turn on that stretch of road. However, as also already mentioned, she said that she intended to drive into the entrance of the Velodrome and to then reverse out onto the north bound section of Main Road and then head back towards Florence Street. Miss Morris claimed that she was told by the plaintiff that she was going to drive into the Velodrome entrance before the plaintiff left the kerb. On the face of it, this seemed improbable at first. The plaintiff was an experienced driver and it seemed to me unlikely that she would explain in advance her proposed manoeuvres to her flat mate. However, the improbability of this evidence is lessened if one considers the following evidence by Miss Morris.

1. Miss Morris said that she was asked by the plaintiff to keep watch for north bound vehicles before the plaintiff pulled away from the kerb. Miss Morris said that she complied with this request and looked to see if there was any traffic coming from that direction. She said there was no such traffic within view. She looked back, she said, to tell the plaintiff this and it was at this stage that she saw the defendant's vehicle coming from behind. This was her evidence–in–chief:

"QAfter Mrs Robson asked you was your seat belt on what then happened?

AWell, we then indicated to pull out.

QWhat were you doing at that time when Mrs Robson was attempting to do that?

AJust looking to see if it was clear both ways.

QAnd what did you observe when looking in that manner?

ABehind us there were cars that were stationary that were waiting to – obviously the car behind Miriam was waiting to pull in behind her and there was no traffic coming from the other direction.

QHad Mrs Robson asked you to look to the south for her to check?

AThe south that being towards Hobart, yes I was keeping an eye that way for her.

QAnd you didn't observe any traffic?

ANo.

QWell, when looking to the south and seeing whether there was any approaching traffic are you able to see from where you were sitting in the car fifty metres or a hundred or more?

AYou can see to the crest of the hill.

QRight, and how far do you think that may be?

AOh, over a hundred metres.

QDid you observe at or about that time any parked cars in the vicinity?

AThere were in front of us but not behind because you could not park behind, it was not allowed.

QAnd then what happened after having indicated and you observing those cars what happened then?

AWell, the road was clear both ways, Miriam started to pull out.

QWhat then next happened, in your recollection?

AWell, she went to pull out and I happened to be looking back towards Moonah and that's when I saw a car coming for us and you know, said to her 'watch out'."

In cross–examination she was asked:

"QCan you recall whether you were talking to Mrs Robson shortly before the accident occurred?

AYes.

QSo, from the time that she pulled out from the parked position you were talking to her?

AAs in, she was asking me about you know, whether there were cars coming in the other direction.

QWell, did she specifically ask you to look for oncoming cars travelling north on Main Road?

AYes, she north? As in away from Hobart? Yes ...

QAnd you continued to look in that direction (towards Hobart) for those vehicles as she commenced to cross Main Road?

ANo, as the road was clear that's when I looked back to tell her it was clear and saw the other car coming ...

QAre you able to say approximately where Mrs Robson's vehicle was on the road when you looked for other vehicles that were travelling in any other direction but north on the main road?

AShe would have been just coming over the centre line."

1. If this account of events is correct (and there appears no major inconsistency between it and the plaintiff's testimony) whilst it tends to lessen the improbability that Miss Morris was told of the plaintiff's intention to turn into the Velodrome, it suggests very strongly to me that the plaintiff had, to a significant extent, abdicated her responsibility for keeping a lookout before she executed the manoeuvre of turning across the road. Even with Miss Morris undertaking the responsibility of looking out for traffic in the north bound lane, she (Miss Morris) was nonetheless able to see the defendant's vehicle approaching from the opposite direction before the plaintiff observed it. Furthermore, both the plaintiff and Miss Morris failed to observe the approach of Mr Simon Reardon's vehicle in the north bound traffic lane. I will deal with Mr Reardon's evidence in detail later, but it is plain from his evidence, which I substantially accept, that his car must have been visible on the road in the north bound lane approaching the point at which the collision occurred at the time that Mrs Robson moved out from the kerb. Both she and Miss Morris should have observed that vehicle if they were keeping a proper lookout.

1. It is also indicative that the plaintiff was not keeping a proper lookout for traffic approaching from the rear, that she failed to see the defendant's vehicle until it was about a car's length away from her own car. In my judgment, it is no answer to this criticism to say that she could disregard the possibility of traffic coming from that direction simply because of the three or four cars which had banked up behind her. At any moment, any one of those vehicles may have pulled out to overtake the car which appeared to be waiting for her parking space. It was also entirely possible that a vehicle such as the defendant's would attempt to pass that line of traffic, rather than pulling in behind it as the plaintiff seems to suggest he should.

1. The defendant gave evidence that he drove through the junction, across the left hand bay (this was referred to as a traffic lane by all witnesses but I prefer to call it a bay to distinguish it from a lane of the kind delineated by broken lines upon the road surface). The defendant said that he was familiar with this stretch of roadway and he agreed with the plaintiff's evidence that the right hand bay at the junction was normally used by traffic executing a right hand turn from Main Road into Creek Road. The defendant said that his speed through the junction was approximately 60 kilometres per hour. He saw what he thought was a line of cars parked adjacent to the left hand kerb and steered around and passed them. There was considerable controversy between the defendant and the plaintiff, both that evening and on the occasion of a later discussion between them, as to whether the vehicles of which he was speaking were parked at the kerb or were merely a stationary line of traffic. In this respect I think that the plaintiff and Miss Morris were correct. I think that what the defendant saw was a line of traffic which had preceded him across the junction, perhaps a significant time before he drove through the junction himself, and I think that rather than being parked, the vehicles were merely stationary waiting for the first vehicle to take the plaintiff's parking space when she pulled out of it. However, notwithstanding the defendant's misjudgment of the true position, I see no reason to be critical of him for taking the course which he did. I am satisfied that the stationary vehicles were probably within a foot or two of the kerb and that the defendant was afforded an ample width of road to pass by those vehicles without intruding onto his incorrect side. I am satisfied that he did not go onto his incorrect side of the road until he deliberately swerved to the right in an attempt to avoid the plaintiff's car which at that time was turning directly across the road in front of him. This conclusion is supported, not only by the defendant's own evidence, but also by the evidence of Mr Reardon who saw, and took note of, skid marks left on the road by the defendant's vehicle. The plaintiff also noticed skid marks on the road following the accident, but as already mentioned, she said they were wholly on the defendant's incorrect side. I prefer the evidence of Mr Reardon who said that the skid marks commenced on the defendant's correct side of the road and swerved across the centre line prior to the point of collision.

1. The defendant said that he saw the plaintiff's vehicle pull out in front of him and continue to cross the road without pausing. He said, "it was just a straight line of cars and then all of a sudden the vehicle came out from amongst them in a curve in front of me". He said the plaintiff's speed was approximately five kilometres per hour. Asked how far his vehicle was from the turning vehicle when it commenced to move out from the position described, he said, "roughly three cars lengths, two or three car lengths back when I first noticed it pull out".

1. The plaintiff gave evidence that she had the right hand traffic signal operating on her vehicle before she commenced her turn and I have no reason to disbelieve her as to this. However, if there was an overlap of the kind described by Miss Morris or even a lesser overlap between the position of the plaintiff's vehicle and the car immediately behind her, one can readily understand that this signal would probably have been obscured from the defendant's view until he was almost abreast of the plaintiff. By failing to see that signal, I do not think he can be said to have failed to keep a proper lookout and in any event, the mere giving of a signal of this kind does not entitle a parked vehicle to pull out from the kerb, regardless of traffic approaching from the rear.

1. The defendant was asked if he could offer any explanation for his failure to see the right hand traffic indicator and he said, "it could have been due to the curve in the road sort of swinging around and obstructed by the cars behind her possibly". This suggestion seems to me to be not unreasonable. The defendant said that at the time of impact the plaintiff's vehicle had just commenced to cross over the double white lines, but it continued to scrape across the front of his car and thus put itself in the position in which it was when it came to rest after the accident.

1. The defendant's version of the conversation which took place between himself and the plaintiff immediately after the accident, differed substantially from the plaintiff's version. He said:

"Right from the start she said that the accident, well said that the accident was her fault, that she didn't see me. She admitted that she had done the wrong thing. It was only about half an hour later after the actual accident that she started to change her initial opinion. ... She started to change her tune a bit, but initially she admitted that she didn't see me and implied that the accident was her fault. ... I think we were discussing the accident and I mentioned the parked cars and she was asserting that the cars were stationary, that they pulled up behind her, that there wouldn't have been enough room for me to have passed the cars without going on the wrong side of the road, and I, you know, was denying that, saying I wasn't travelling on the wrong side of the road. But those sort of comments came out a bit later, about half an hour later. At the time they didn't."

1. The defendant said that there was also a discussion about the plaintiff's husband being a police officer and that, although she was separated from her husband, she made mention of asking him to come out and appraise the situation. The plaintiff, in cross–examination had conceded that her estranged husband was a police officer, and that she may have mentioned this to the defendant, but she denied saying she may call him in to assist her.

1. The defendant also said:

"Mrs Hinsley seemed to be assuming the responsibility for the accident. She was going to pay the tow truck fee which was $40. Now she didn't have $40 on her, so her friend who was with her in the car, went off somewhere to get some money and she came back a little later with $20 and at that point I volunteered to put $20 towards the tow truck cost and Mrs Hinsley asserted that I would get that money back later."

He also said:

"Because she was assuming the responsibility for the accident, she said that she had a friend who was a panel beater that she would ring up or contact that would come around the following day and assess the car and then she suggested that I get a quote and that I give her the cheaper one."

1. This latter assertion was strenuously denied by the plaintiff in her evidence and it is plain that there is a serious discrepancy between the two versions. It is not easy to reconcile these discrepancies, but I must say that, after careful thought, I prefer the evidence of the defendant. His claim to have received $20 from the plaintiff towards the tow truck costs is supported to some extent by Miss Morris' evidence as I have already mentioned.

1. His claim that the plaintiff initially conceded responsibility and "changed her tune" at a later stage, seems highly probable. The parties were at the scene of the accident for an appreciable time before the defendant left with the tow truck. I should say that I do not regard his leaving the scene in these circumstances as an implied admission of responsibility on his part. I think that the plaintiff's claim that the defendant was responsible for the accident because he was on his wrong side of the road at the time, is something that came to her only gradually as she contemplated the accident over the half hour or so after its occurrence and I think it likely that she formulated this proposition and perhaps even convinced herself of its validity, by considering the respective positions of the vehicles in their stationary positions after the collision.

1. The defendant also called Mr Simon Reardon, a completely independent witness who was unknown to either party before the accident. He said that he was driving his car from New Town towards Moonah on Main Road in the north bound traffic lane. He said:

"I could see a Citroen parked outside the shop with its indicator going and I seen a Renault coming towards the other way, going towards the city and I seen the Citroen pull out pretty quick to do a 'U', which seemed to be a 'U' turn and the Renault was coming along and hit it in the side."

Mr Reardon said that the Citroen was parked one car space back from the front door of the shop. He was asked:

"Q       Were there any other parked vehicles in that area?

A        Yes there was one parked in front and two or three parked behind.

Q        Behind the Citroen?

A        Yes.

Q        And where were they parked in relation to the kerb?

A        At the kerb."

Mr Reardon also said that he was between 50 and 100 metres from the scene of the accident when it occurred. He said (as did all other witnesses) that it was daylight at the time and visibility was good. He said that the Renault appeared to be travelling at a normal speed. He said:

"I seen him coming down the road and then applying his brakes very hard and then he slid across the median strip, slightly onto the wrong side of the road before – as he hit the lady, hit the other car".

By the median strip he was referring to the intermittent white lines painted on the centre of the road. He also said:

"There was black tyre marks on the road leading from the right side of the road onto the wrong side of the road."

These marks, of which there were two, were six to seven feet in length. Asked if he was able to describe the way in which the Citroen pulled out from the kerb, he said that it did so "rather fast" and "it was a continuous movement". He stopped at the scene of the accident and said that he heard a conversation between the persons involved. He said:

"The lady that was driving the Citroen said to Mr Snashall, 'sorry I didn't see you'".

1. Mr Reardon said, that following a request by the defendant the following day, he made notes of his observations about what occurred in the course of the accident. He was not asked to produce those notes but there is no reason to disbelieve his claim to have made them. I can see no reason whatsoever to disbelieve any of Mr Reardon's evidence and what he said seems to accord with the defendant's case. I accept him as an honest and reliable witness. It is of interest, in particular, to note that Mr Reardon also described the vehicles behind the plaintiff's parked car as having themselves been parked vehicles. Of course, he may have been wrong as to this, bearing in mind the perspective from which he must have viewed the impending collision, but his evidence tends to reinforce the reasonableness of the impression gained by the defendant as he approached the scene that these vehicles were not an impediment to his forward progress.

1. As I have already said, I believe the defendant was wrong in thinking that these cars were parked rather than simply forming part of a stationary line of traffic. But I think this misconception by him is of little consequence. I think the vehicles were close to the kerb, and that the defendant had ample room to pass by them without encroaching upon the wrong side of the road. I am of the opinion that his speed of 60 kilometres per hour was not excessive in the circumstances. His failure to see the plaintiff's indicator light is explicable for the reasons that I have already discussed. The plaintiff drove her car from the kerb in a sudden and continuous motion, and although he does not recall applying the brakes or sounding the horn, clearly the defendant took both of these steps, at the same time swerving to the right in an attempt to avoid a collision. In my assessment he acted reasonably in all the circumstances and I am of the view the accident was caused solely by the negligent driving of the plaintiff who attempted to execute a risky manoeuvre without keeping a proper lookout.

1. It is understandable perhaps that the plaintiff felt that she was under some pressure to move out from the kerb as soon as possible to allow the driver behind her to take the space that she was occupying. I am also conscious of the fact that the presence of that vehicle in the position in which it was stationary upon the road with several other cars behind it, may have constituted something of an obstruction to the plaintiff in observing other traffic coming from that direction. It is also understandable that she would wish to return to Florence Street by the shortest available route, rather than going around the block or driving down to Tower Road and perhaps utilising the mouth of that junction to execute a turn back onto Main Road. However, having an awareness of the plaintiff's situation and, I hope, an understanding of why she acted as she did, I am clearly unable to absolve her from a finding of negligence. In my opinion, her negligent driving was the sole cause of this collision and consequently there must be judgment for the defendant both on the claim and the counter–claim. The judgment on the counter–claim will be for damages to be assessed. The defendant will have his costs of both the claim and counter–claim.