Holloway v Dobie
[2006] WADC 58
•11 APRIL 2006
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: HOLLOWAY -v- DOBIE [2006] WADC 58
CORAM: GROVES DCJ
HEARD: 3 APRIL 2006
DELIVERED : 11 APRIL 2006
FILE NO/S: CIV 2707 of 2003
BETWEEN: PHILIP WILLIAM HOLLOWAY
Plaintiff
AND
MATTHEW DOBIE
Defendant
Catchwords:
Torts - Negligence - Motor vehicle collision - Liability - Turns on own facts
Legislation:
Nil
Result:
Accident caused wholly by plaintiff's negligence
Representation:
Counsel:
Plaintiff: Mr B Bradley
Defendant: Mr D Clyne
Solicitors:
Plaintiff: Bradford & Co
Defendant: Brian Bennett
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
GROVES DCJ: This action arises from a motor vehicle collision on High Road, Riverton on Friday 15 November 2002.
Liability only is in issue.
At the point where the accident happened High Road runs in an east west direction. It has four lanes, two lanes for traffic proceeding in each direction which are divided by a median strip running down the middle. On the southern side of High Road and set back from the road is the Riverton TAB. Between the TAB and High Road is a vehicular parking area. There is an entry/exit to the carpark off High Road. That entry/exit is immediately opposite Adroit Street which enters High Road on the northern side.
It is not in issue that at about 9.30 pm on the evening in question the plaintiff was driving his Volvo motor vehicle departing the TAB carpark. It was his intention to cross over the west bound lanes of High Road and execute a right turn onto High Road to proceed in an easterly direction. As his vehicle was crossing the west bound lanes of High Road a Hyundai vehicle being driven by the defendant in a westerly direction in the lane nearest the median strip came into collision with the plaintiff's vehicle. Both the plaintiff and the defendant suffered injury as a consequence of the accident.
On the one hand the plaintiff alleges that the accident occurred as a result of the negligent driving of the defendant. It is alleged that the defendant:
"(a)drove whilst in a state of alcohol intoxication so as to be unable to properly manage and control his vehicle;
(b)drove whilst under the influence of a combination of alcohol and other drugs so as to render the defendant unable to manage or control his vehicle;
(c)drove his vehicle at an excessive speed;
(d)failed to keep a proper lookout;
(e)failed to apply his brakes timeously or at all."
On the other hand the defendant denies that he was negligent as alleged and says that the collision was solely caused by or contributed to by the plaintiff's negligence. It is alleged that the plaintiff was negligent in that he:
"(a)travelled at an excessive speed in the circumstances;
(b)failed to give way to the defendant when he was under an obligation to do so;
(c)failed to keep any or any proper lookout;
(d)failed to apply his brakes sufficiently so as to avoid a collision or at all; and
(d)failed to control, swerve or steer his motor vehicle so as to avoid a collision or at all."
The defendant counterclaims in respect to the loss and damages suffered by him alleging that the accident was caused by the negligence of the plaintiff in that the plaintiff –
"(a)drove the Volvo motor vehicle into the path of the vehicle driven by the defendant;
(b)failed to keep a proper lookout;
(c)drove too fast in the circumstances."
The plaintiff's evidence
The plaintiff was born on 19 November 1952 and was self‑employed as a buyer and transporter. It was his regular practice of many years standing to attend at the Riverton TAB on a Friday evening. He recalled the occasion in question as being one where he went to collect his winnings on the Melbourne Cup. He arrived at the TAB at about 8.30‑8.45 pm and parked his vehicle in front of the front door of the TAB. When he left the TAB he got into his car and recalls that he had trouble with his seat belt which had somehow jammed. He fixed that before moving off from his parking spot. That was his last recollection of the evening. His next recollection was of waking up in Fremantle Hospital the next morning.
He was driving a 1978 Volvo automatic sedan which he had purchased some five or six weeks previously. He had driven it four or five times prior to this evening. He was familiar with the Volvo motor vehicle having previously owned a manual model.
The plaintiff was familiar with the area. The exit from the TAB carpark crosses the roadside verge before the kerb line on the southern side of High Road. To the right as one exits there is a line of trees on the verge between the footpath and the kerb. The plaintiff was aware that these trees obscure a driver's view as one looks to the right to see if there is any traffic coming towards him and proceeding in a westerly direction. It was always his practice to stop before entering onto High Road, whether proceeding to the left or the right, to see if any traffic was coming towards him. He said that by edging the front of his vehicle up to the kerb line enabled him to see about 150 metres to his right (looking to the east) down High Road. He had no recollection of doing this or observing any oncoming traffic on this occasion.
Two days later whilst still in Fremantle Hospital he made a statement to police wherein he said "I remember pulling my Volvo sedan out of the carpark at the TAB and having to stop to redo my seat belt as it was twisted." (Exhibit 2). He was not able to comment on what he meant by this statement as he did not have any recollection about the accident. However it was not his policy to drive without first having fastened his seat belt. In the end result nothing turns on this apparent inconsistency.
Witness – Timothy Donald Philp
At about 9.30 pm Mr Philp was driving his Datsun Stanza and entered onto High Road from Metcalfe Road. He was proceeding in the kerbside lane in a westerly direction sitting on 70 kilometres per hour being the speed limit in the area. He observed a Hyundai vehicle to come up behind him, moving into the centre lane and overtake him at speed. As it pulled back into the kerbside lane he observed significant body roll of the car which pulled away from him fairly quickly. He then observed that vehicle to overtake another vehicle travelling ahead of him in the kerbside lane. The Hyundai remained in the centre lane. Mr Philp observed the Hyundai to break immediately before colliding into the Volvo. He initially estimated that he was 300‑400 metres behind when he saw the collision. He reassessed to 200‑300 metres and in the end stood by a final estimate of 200 metres from the point of impact. From where he was he saw the Volvo pulling out onto High Road when the Hyundai was about 50 metres from it. The vehicle in the kerbside lane in front of him was about 70 metres in front of him and thus about 130 metres from the Volvo. He was able to confirm that the Hyundai and the vehicle in the kerbside lane in front of him and he all had their vehicle headlights on.
Senior Constable Robert Stanley Read
S/C Read attended at the accident scene. He took a number of photographs of the Hyundai and Volvo in situ and also photographs of the area in daylight. (Exhibit 3). From the photographs it is apparent that the Volvo was hit amidships on the driver's side, ie the front of the Hyundai impacted with the area of the driver and rear passenger's side doors of the Volvo. The Hyundai sustained heavy damage to the front. He measured skid marks attributed to the Hyundai, as shown in the photographs, to be 15.05 metres pre‑impact and that the Hyundai had come to rest 17 metres further on. S/C Read in referring to the trees on the verge considered them to be a "significant detriment to the view of a person (exiting the TAB) looking east". From the point where a driver would pull up a vehicle before entering onto High Road he measured the view which a driver would have looking east down High Road. He measured the distance of the view down the kerbside lane as 130 metres and down the centre lane 143 metres. Beyond that the view was obscured by the trees.
The defendant's evidence
The defendant works as a mechanical fitter. On the day in question he had knocked off at 4.20 pm, went to visit a friend, watched some television and drank about a six pack of full strength beers. He left his friend's place at about 9.15 pm driving his Hyundai motor vehicle. He entered onto High Road from Metcalfe Road and travelled at about or slightly above 70 kilometres per hour. He travelled in the kerbside lane but changed lanes to overtake two other vehicles before the accident. He said that he did not see the Volvo until it was straight in front of him crossing his path about 20 metres away. He braked heavily but realised that an impact was imminent. In cross‑examination he said that he had passed the other two vehicles not long after turning onto High Road and had backed off his speed having passed them. He had checked his speedometer at about 800 metres or less before the accident and was adamant that he was not speeding. He denied that he was travelling much quicker than 70 kilometres per hour or up to 100 kilometres per hour.
The admission was made by the defendant that at about 11.35 pm he was breathalysed by police and gave a blood alcohol reading of 0.147 per cent which calculated back to the time of the accident (9.30 pm) gave a reading of 0.116 per cent.
Report of Dr David A Joyce
Dr Joyce is a physician in the area of clinical pharmacology and toxicology and an Associate Professor of Pharmacology. His report dated 23 December 2004 was tendered by the plaintiff by consent (Exhibit 4). So far as is relevant his report stated:
"Blood Alcohol Level
Measured and deemed levels
The measured blood alcohol concentration was 0.14%. The concentration at the time of the crash was deemed to be 0.116%, calculated using the method described in Section 71 of the Road Traffic Act. The calculation assumes that the time of the last drink was immediately before the accident. If the last drink was earlier, the deemed blood alcohol level at the time of the crash would have been higher.
Effects of Alcohol on Driving
Alcohol impairs driving ability through impairment of judgment, false confidence (Cohen et al., 1958) impaired visual tracking and delayed reaction time (Levet et al., 1975), sleepiness, inattention, incoordination and aggression (Ellenhorn & Barceloux, 1988). The relationship between blood alcohol concentration and the incidence of motor vehicle accidents underlies current drink‑driving legislation. Compared with drivers who have no alcohol in their blood, drivers with a blood alcohol concentration of 0.06% are twice as likely to be responsible for causing an accident; at 0.10%, seven times more likely and at 0.15%, 25 times as likely. At 0.11%, the probability of causing an accident is increased by around 15 fold, compared with drivers who have no alcohol in blood (Borkenstein et al, 1974: The Grand Rapids Study).
People are affected differently by the same blood alcohol concentration. Those who are accustomed to a lot of alcohol are less impaired than those who drink little. Hardened drinkers may appear unimpaired at quite high blood alcohol concentrations. However, deterioration occurs rapidly, even in the case of hardened drinkers and experienced drivers as blood alcohol levels rise above 0.10%. It is accepted that driving impairment is present in everyone with a blood alcohol concentration of 0.10% or above, regardless of drinking experience (Law Reform Commission Report No 4; Cooper, Schwaar & Smith, 1979).
Mr Dobie's blood alcohol concentration alone is sufficient for a conclusion that he was not capable of controlling a motor vehicle under normal driving conditions, at the time of the crash.
Conclusion
Mr Dobie was incapable of the proper control of a motor vehicle because of alcohol intoxication. The other drugs detected in the analysis probably made no contribution to his state of intoxication."
Conclusions from the evidence
It goes without saying that the defendant was affected by alcohol whilst driving prior to the accident. However, defence counsel contends that alcohol was not a causative factor and nor was the defendant's speed. Rather, the situation was that the defendant pulled out to cross the west bound lanes of High Road into the path of the defendant's vehicle and the defendant was left with no opportunity to avoid the collision.
Each of the witnesses gave a credible account of their actions and what was observed. The only wavering was in Mr Philp's evidence when his initial estimate of 300‑400 metres from the impact was reassessed to about 200 metres in front of him. I do not consider that he can be criticised for that or that his credibility is at all impacted.
Mr Philp's evidence was that the Hyundai passed him at about the point where Cerebus Street intersects with High Road on its southern side. S/C Read estimated the distance from the TAB exit to Cerebus Street was 500‑800 metres. On Mr Philp's evidence he saw the Volvo pulling out about 200 metres in front of him at which point the Hyundai was about 50 metres from the Volvo. That puts the Hyundai about 150 metres in front of Mr Philp. That then suggests that over a distance of 500‑800 metres the Hyundai had pulled some 150 metres ahead of Mr Philip. No assistance was provided in converting this information into any estimate as to the speed at which the defendant might have been travelling to achieve that margin over that distance. As much as can be drawn from the evidence, accepting that Mr Philp was travelling at 70 kilometres per hour is that the defendant was travelling at above the speed limit but by how much and whether or not his speed was overly excessive in the circumstances I am not able to draw any conclusion.
On Mr Philp's evidence the vehicle in the kerbside lane in front of him was about 130 metres from the Volvo. It had its headlights on. On the plaintiff's evidence he would have been able to see about 150 metres to his right. On the police officer's evidence it can be accepted that a driver stationary at the kerbside before entering onto High Road could observe the lights of that vehicle in the kerbside lane coming towards him. That is, the view was not obstructed by the verge trees. The defendant's vehicle was much closer. The Volvo pulled out when the Hyundai was about 50 metres from it. The headlights of the Hyundai and its proximity should clearly have been observed by the plaintiff before pulling out from the kerb.
Assuming, albeit that there was no evidence to this effect, that the Volvo was stationary before entering onto High Road it can be accepted that it was not proceeding quickly as it crossed the kerbside lane. It was square across the centre lane at the point of impact. It was not the defendant's evidence that he observed the Volvo pulling out onto High Road but rather that it was straight in front of him about 20 metres away when he first saw it. His skid marks before impact measured 15.05 metres. The Volvo would have travelled forward some little distance between first being observed and impact. In my view even had the defendant seen the Volvo earlier, eg when he was 50 metres distant when on Mr Philp's evidence the Volvo pulled out, that still did not leave him time to avoid the collision. Counsel informed me that a vehicle travelling at 70 kilometres per hour travels 19.44 metres per second. Therefore a distance of 50 metres will be covered in 2.572 seconds. A vehicle travelling faster than that will of course arrive sooner. I conclude that in those circumstances the plaintiff attempted to cross over the westbound lanes of High Road when, by reason of the presence of the defendant's oncoming vehicle, it was not safe for him to do so. Consequently the defendant had no opportunity to avoid colliding into the plaintiff's vehicle.
That leaves the question of the defendant's impaired driving ability by reason of alcohol. I am not able to conclude that in the circumstances that alcohol was a causative factor. There was no evidence from which I could conclude that the defendant's reaction time was so affected that he could have brought his vehicle to a stop or otherwise taken evasive action to avoid the collision. Given the distance of the Hyundai from the Volvo when the Volvo pulled out onto High Road and the speeds of the respective vehicles, whether the Hyundai was travelling at or greater than 70 kilometres per hour a collision was in my opinion inevitable. Accordingly, I find that alcohol was not a causative factor.
At the exit from the carpark there was no stop of give way sign erected facing traffic about to enter onto High Road. It is the duty of a driver, in this case the plaintiff, to give way to vehicles on the right travelling in a westerly direction along High Road. The plaintiff did not do this. His vehicle entered onto High Road when it was not safe for him to do so. He failed to keep a proper lookout and failed to give way.
In the circumstances I find that the accident was caused wholly by reason of the negligence of the plaintiff. I do not attribute negligence or find that the defendant was contributorily negligent at all.
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