| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : INNES -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2004] WADC 252 CORAM : DEANE DCJ HEARD : 15 NOVEMBER 2004 DELIVERED : 14 DECEMBER 2004 FILE NO/S : CIV 2353 of 2002 BETWEEN : ROBERT INNES Plaintiff
AND
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Defendant
Catchwords: Personal injury - Motor vehicle accident - Plaintiff pedestrian struck on hand by unknown driver of van - Whether unknown driver negligent - If so whether any contributory negligence - Whether plaintiff made due search and enquiry to ascertain identity of the vehicle
Legislation: Motor Vehicle (Third Party Insurance) Act 1943
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Result:
Liability not established - Plaintiff's claim dismissed Representation:
Counsel:
Plaintiff : Mr K S Pratt
Defendant : Mr B J H Goetze
Solicitors:
Plaintiff : Stephen Browne
Defendant : Minter Ellison
Case(s) referred to in judgment(s):
Nominal Defendant v Genn [2004] NSWCA 306
Case(s) also cited:
Cavanagh v Nominal Defendant (1958) 100 CLR 375
Holloway v McFeeters (1956) 94 CLR 470
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1 DEANE DCJ: This matter concerns a determination as to liability only. The plaintiff, Mr Innes, is a 48 year old man who was born on 28 May 1954. He claims on 26 February 1999 he was walking in a northerly direction along the westbound carriageway of Cambridge Street in Floreat Park when he was struck by a white van which was travelling east in the centre lane of the westbound carriageway. It is alleged that the accident was caused by the negligence of the unknown driver of the white van who failed to keep any proper lookout and who was travelling east along the westbound carriageway of the street.
2 Issues to be determined are whether the plaintiff was struck by that unknown vehicle as alleged and if so whether the driver of that vehicle was negligent. In the event that the driver of the vehicle is found to be negligent there then arises the question of whether there was any contributory negligence on the part of the plaintiff. Finally, the plaintiff pleads that despite all search and enquiry he has been unable to identify the driver of the motor vehicle which he alleged struck him. 3 The defendant disputes that the plaintiff in the circumstances has complied with s 7(3) of the Motor Vehicle (Third Party Insurance) Act 1943 ("the Act") which states: 4 At the time of the alleged accident the plaintiff was working as an estimator for a roofing company. He said he had been attending a job in Lesmurdie which he commenced just before midday and did not complete until about 3.30 pm. In his evidence he said that he was making his way back to his work base in Balcatta intending to deposit $4,000 cash which
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he had on him at the office, when he received a call, apparently on his mobile phone, from his manager. The manager informed the plaintiff that he had to attend another job in the Floreat Park/Wembley area before close of business that day. 5 The prospective client, with whom the plaintiff had dealt the day before, was apparently quite agitated and waiting for the plaintiff to arrive to attend to some work at her premises. According to the plaintiff the manager advised him that as the client was anxious the plaintiff should telephone her in order to let her know that he was on his way to attend the job. The plaintiff was told not to worry about the $4,000 cash which he had in his possession but to go to the job. According to the plaintiff this conversation occurred whilst he was on the Tonkin Highway and as a result he made his way via a number of backstreets to the Wembley area and from there he proceeded to Floreat Park. 6 It was the plaintiff's intention to use a public telephone box in Birkdale Street which intersects Cambridge Street in order to telephone the client and advise her of his intended arrival. Although the plaintiff had access to a mobile telephone it was a private phone and he told the Court he did not use it in order to call his office or customers because it was more expensive than using a public telephone box. He used his own vehicle, a Commodore, for business and claimed its running costs and related expenses on his taxation return. 7 By reference to Exhibits 1 and 2, being two photographs, it can be seen that Cambridge Street at the relevant point is a four lane carriageway running in an east/west direction. The two lanes for westbound traffic culminate in a rise or hill and these two lanes are separated from the two lanes for eastbound traffic by continuous double white lines. There are various shops bordering both the kerbside lanes for westbound and eastbound traffic and the kerbside lane in each instance has provision for car parking. A video of the scene, Exhibit 7, apparently taken in October or late 1999 shows Birkdale Street intersecting Cambridge Street in a north/south direction and immediately prior to the intersection in the middle of Cambridge Street both on the western side and eastern side of the intersection are concrete traffic islands. 8 The plaintiff marked on Exhibit 1 approximately where he parked his motor vehicle in the kerbside lane for westbound traffic. He intended to cross the road in a northerly direction and make his way east down Cambridge Street in order to turn into Birkdale Street and make his telephone call from the call box. By this time it was about 5.40 pm and
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the sun was setting on what was, according to the plaintiff, a very hot day. On the backseat of his motor vehicle the plaintiff had a briefcase, clipboard, $4,000 in cash as well as sundry paperwork some of which related to the contract for the job to which he was intending to go that afternoon. That paperwork contained the relevant details of the client including contact numbers. 9 He alighted from his vehicle and then proceeded to open the rear passenger door in order to take out the items he needed to contact the client. He said he did this with his left hand scooping up what he needed and tucking it under his arm. According to the plaintiff in his evidence-in-chief he opened the rear passenger door for a second time to double check and make sure the contract and the $4,000 were still there as it was a large sum of money. He was adamant in cross-examination that he did not lock the vehicle as the locking system was faulty and did not work. He had not had the opportunity to have it fixed in the previous month despite the fact that he usually had Fridays off work. He also said that he was in the habit of regularly carrying large sums of cash in his motor vehicle as a result of the work that he did. 10 The plaintiff then proceeded to cross the road in a north/westerly direction as marked on Exhibit 1 and said he took one or two steps but no more than five steps into the roadway when he remembered being hit by the back end of a truck. 11 In examination-in-chief the plaintiff said he was first aware of the presence of this vehicle by virtue of the airflow and heat it generated and also the fact that it brushed his clothing. He said he first saw the truck as it went by and as soon as it hit him on the back of his right hand. The plaintiff demonstrated that the point of impact was from the base of the right thumb where it met the wrist. Initially he felt a sting followed by pain and his whole hand swelled up. He noted a large bubble of blood in the area of impact. He said when he was hit he fell to the ground because he was protecting himself and did not want to get sucked alongside of the vehicle which hit him. 12 The plaintiff also said that when he was hit he was 3 to 3½ feet on the southern side of the double white line in the middle of the road. After being struck and falling to the ground the plaintiff felt stunned and shocked but got up quickly because cars were coming in the lefthand lane and he did not want to be hit again. His right hand was bleeding profusely so he removed his shirt and tied a tourniquet around it and proceeded to
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drive to the emergency section of the nearby Sir Charles Gairdner Hospital where he received treatment. 13 Although the plaintiff denied attending or attempting to obtain assistance from a nearby chemist shop, later in the course of cross-examination when he was reminded of certain matters he conceded that he had approached the shop but due to the fact that his hand was bleeding heavily apparently he was prevented from entering the premises or advised not to do so. 14 The plaintiff said he was unable to identify the type of van or truck which struck him or obtain its registration number as the incident happened extremely quickly. He said when he last saw the vehicle it was 45-60 metres away from him travelling east and he said that at that point the vehicle was across the intersection starting to get pretty much on the double white line and that it went back. From this I understood the plaintiff to be saying quite clearly that the van had been on the incorrect side of the road travelling in the westbound lane when it struck him and when he last saw it, the vehicle was righting itself and going back on to its correct side of the road being the eastbound traffic lane closest to the centre of the road. 15 As to his efforts to carry out a search and make enquiries to ascertain the identity of the vehicle the plaintiff said when he awoke in hospital after receiving medical treatment he rang what he believed was the central police station and explained the situation to them. Further, when he returned home a couple of days later he contacted that same number and attempted to speak to the same person as previously but was unable to do so. 16 In cross-examination he agreed that he did not at the time of the incident or subsequently make enquiries of any persons, for example, local shopkeepers or pedestrians who may have seen something of the accident. The plaintiff claimed that when he was struck and fell down on to the roadway no passing motorists or pedestrians stopped or came to his assistance. 17 The plaintiff denied that he sustained an injury to his hand by accidentally slamming or shutting the rear passenger door on his hand when he closed it after taking items off the back seat and in fact said that he shut the door with his right hand. Before proceeding to cross the road he looked to his right, to his left and to his right again and noted that there were cars travelling west on his righthand side but there was a slight break
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in that line of traffic giving him an opportunity to begin to cross the road. He was then facing traffic travelling east coming over the crest of the hill and it was at that point he noticed there were vehicles waiting to get into a 15 minute parking zone in the kerbside lane of the eastbound carriageway. Those cars were going slowly as they approached that parking area with the exception of the van or truck which the plaintiff said was travelling much faster than those other vehicles. The plaintiff said that the truck or van actually crossed the double white lines in the middle of the road and struck him therefore plainly suggesting in his evidence that the vehicle was on the wrong side of the road at the point of impact. The plaintiff conceded, however, that he did not see the vehicle coming and could only say it was travelling faster than the line of traffic that was slowing down in order to pass the cars parked in the 15 minutes parking zone because he felt the vehicle breeze by his body and he felt its heat. At this point he said he had taken no more than five steps into the roadway and the crest of the hill was some 60 metres to his left. It was plain from the evidence that the truck or van must have come over the crest of the hill prior to the point of collision. 18 Initially the plaintiff denied that there were concrete median strips in Cambridge Street on either side of the intersection with Birkdale Street. It is clear, however, from Exhibit 2 and Exhibit 7 that such concrete median strips were present. Clearly it would be extremely difficult, if not impossible, for the truck when travelling across the intersection both immediately prior to and after the intersection to travel back over the double white lines on to its correct side of the road as the median strips would have provided a significant obstruction. 19 The plaintiff then conceded that the median strips were present at the relevant time and further that he did not see the vehicle actually cross the intersection, although it continued travelling east after the collision. This was in contrast to the plaintiff's earlier evidence that in effect the truck had crossed over into incorrect side of the road when it struck him. He then resiled from this to a degree and said he believed that the vehicle entered into the double white lines when it hit him and after the collision all he could recall was the truck travelling east and then conceded that with respect of this aspect of the evidence he was not relying on his memory or recollection but in effect was reconstructing what he believed had happened from looking at Exhibits 1 and 2. 20 At another point in cross-examination the plaintiff demonstrated how he was holding his right hand up across his eyes shading them from the sun immediately prior to the point of impact. Although he demonstrated
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at one stage his palm facing forwards he denied that that was the case and demonstrated rather that his hand was flattened slightly downwards with his fingers and thumb pointing in a westerly direction. 21 Exhibit 3 is a workers' compensation claim form relevant to the alleged accident which was filled out on behalf of the plaintiff by a solicitor, Mr Klein, dated 8 March 1999. The plaintiff explained that he accompanied his partner when she had an appointment with Mr Klein on an unrelated matter and at her suggestion Mr Klein filled out the form based on information provided to him by the plaintiff who co-signed the document. There are a number of inconsistencies and discrepancies in that document regarding the circumstances of the alleged accident which the plaintiff attempted to explain by saying that he believed at the time there was trouble with his dialect and accent, albeit that his accent was the same then as at the time of giving evidence in Court. 22 The plaintiff was born in Orkney, an island off Scotland and does have an identifiable accent but in my view his speech is readily understandable and there were only a few occasions during the course of his evidence when he was required to repeat a word or words for the Court. 23 On Exhibit 3 the time of the accident is noted as 5.00 pm but the plaintiff explained that he believed he told Mr Klein he had a 5.00 pm appointment as his earlier evidence clearly suggested the incident occurred about 5.40 pm. He remembered giving Mr Klein answers to his questions but not the actual answers he gave. The plaintiff said he did not read the completed form and was unsure that he signed it because his right arm was in plaster at the time. He later conceded that his signature did appear on the document. The document then states that the incident occurred on Cambridge Street whilst the plaintiff was getting into his car as he was visiting a client and went into his car to get his diary. 24 In response to this the plaintiff said he did not know why he said that nor did he know why Mr Klein wrote it down on the document. This is despite the fact that the document was completed some 10 days or so after the alleged accident. Whilst the document indicates that at the time of the incident the plaintiff was on duty, the box relevant to being on duty and in a road traffic accident is not ticked. The plaintiff could not explain why this was so. 25 In response to the question what action was involved in the incident the response noted is "I had left my car to visit a client, need to get back
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into car to get my diary. As I was about to be into my car a heavy vehicle drove past a (sic) it struck my hand". The plaintiff claimed that this information was what he recalled at the time. It is clearly significantly different from what the plaintiff told the Court in his evidence and he attempted to explain this inconsistency by saying at the time the form was completed he had just been discharged from hospital where he had been under anaesthetic and had been administered morphine and other pain killers and so he was in a vague state. 26 As has been pointed out the form was completed some 10 days after the incident so it is unlikely that the plaintiff would still have been suffering the ill effects of anaesthetic and pain killers at that time. Further another portion of the evidence clearly suggested that the plaintiff had been discharged from hospital the day following the accident on 27 February 1999 so it is unlikely that on 8 March 1999 he would have been in a dazed and confused state. 27 Although the plaintiff advised the Court that it was some months after the incident that he made a claim with respect to it, by letter dated 23 March 1999 Stephen Browne & Co, Exhibit 4 (for whom Mr Klein apparently worked) advised the defendant that they acted for the plaintiff in relation to the alleged accident (albeit that the date of the incident is incorrectly noted as 22 February 1999). That document, which was written on the plaintiff's instructions states that at the time the plaintiff was in Cambridge Street and his vehicle was parked on the lefthand side of the road. He was in the course of his employment and visiting a client. He returned to his vehicle in order to get his diary and as he was getting back into his car a heavy vehicle drove past and part of that vehicle struck the plaintiff on his right hand. Clearly whilst this is inconsistent with the plaintiff's sworn testimony it reflects the information contained in Exhibit 3. The plaintiff denied he gave instructions for Exhibit 4 to be written. 28 He was, however, advised by Mr Klein that a person from the defendant's organisation would be coming to see the plaintiff in order for a statement to be prepared. That statement was not to be signed by the plaintiff until reviewed by Mr Klein and no doubt its contents discussed with the plaintiff. The plaintiff initially recalled signing the document in front of Mr Klein but then said he was unsure about that and it may have been forwarded to him to sign. Mr Klein subsequently informed the plaintiff the statement had been forwarded to the defendant. In that regard a letter date 2 August 1999, Exhibit 5, from the plaintiff's solicitors to the defendant encloses a copy of the signed statement noting that the plaintiff
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required some amendments to be made to the document and further that in the solicitor's view the statement addressed the issues earlier raised by the defendant which required clarification. 29 In part the statement, Exhibit 6, says on the day in question the plaintiff parked his car and in order to retrieve some paperwork he required to make the phone call to the client he opened the rear right door and having obtained the paperwork he locked and closed both doors. He then crossed the north side of Cambridge Street to access the telephone after locking both doors and checking traffic to his right. Clearly the assertion in Exhibit 6 that the plaintiff locked both doors is inconsistent with his sworn testimony that the locking system was faulty and therefore did not work. Paragraph 16 of Exhibit 6 states that the plaintiff took approximately one step from his vehicle before being hit on his right hand by a truck travelling east on Cambridge Street in the westbound lane. 30 In par 17 of the document the plaintiff states that he believes the truck may have been overtaking a vehicle when it hit him. The document makes no reference to the plaintiff having to make a detour to Floreat Park to see a client whilst travelling from Lesmurdie to his office in Balcatta. The plaintiff considered that this piece of information was irrelevant and therefore did not include it in the document. He conceded the document was wrong in that it stated both doors were locked as one door did not lock. The statement also makes no mention of the plaintiff, as he claimed in his evidence, returning to the vehicle on a second occasion to check for certain items. His explanation for this inconsistency was that the statement was signed on 28 July 1999 some five months after the accident. He conceded that the document was incorrect in that he believed he took more than one step into the roadway before he was struck by the truck but nonetheless persisted in maintaining that he did not reach the double white lines before being hit. He was unable to explain, however, how it was he could be sure of this and said he would have been standing in the middle of the road waiting to cross at the time of being hit by the truck. 31 He denied he was standing on the double white lines but rather said he was standing towards the centre of the road the suggestion being that he was still on the southern side of the road in the lane for westbound traffic. He then said he could have been on the double white lines when he was struck but denied that he was over the line at the time in the sense of being in a lane for eastbound traffic.
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32 After he was struck the plaintiff said he landed on the southern side of Cambridge Street on his backside either as a result of being pushed back there after the collision or in a protective motion to avoid further being struck.
33 Relevant to par 17 of his statement where the plaintiff asserts that the truck was travelling east in the westbound lanes he conceded in fact he could not say that with any certainty as he did not see the truck at all prior to being struck by it. Further he made no mention in his statement of stationary vehicles in the kerbside lane for eastbound traffic which caused other traffic travelling in that direction to slow down in order to pass them. He explained this omission by saying that he was having questions thrown at him from all directions and in any event it was an incident that took a fraction of a second to occur. 34 The plaintiff conceded that par 20 of his statement which asserts that the impact would have happened approximately one metre from his vehicle was incorrect and according to his sworn testimony the impact point was further away from the vehicle. Paragraph 21 of his statement asserts that the plaintiff was hit on his right hand and the impact knocked his right arm against his vehicle and he fell to the ground. In response to that in his evidence he said he thought he staggered back and fell against his car but he made no mention in his statement as he did in his sworn testimony that he fell back and landed on his backside on the road. 35 When asked if he appreciated that it was important that the detail of the statement he gave be correct the plaintiff responded "I didn't even think it would get this far". In par 36 of the statement the plaintiff says he rang the Warwick police station the day after the alleged accident after he left hospital but he was informed there was not a great deal that could be done and it was possible the driver of the truck may not have been aware that the accident had happened. He explained that in his view, although he lived in Padbury at the time of the accident, he had previously lived in Two Rocks and considered Warwick police station at that time to be the central police station. He further stated that the statement did not canvas the fact that he also rang the police from hospital prior to his discharge. 36 Although a proposition was put to the plaintiff that he sustained the injury to his right hand when it was jammed or caught in the door of his motor vehicle I do not find that there is any evidence which supports such a proposition. As a result I do find that the injury to the plaintiff's right hand was sustained when he was struck by the truck or van. The issue then of course is whether the unknown driver of that vehicle was
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negligent, and if so, whether there was any contributory negligence on the part of the plaintiff. 37 The plaintiff's evidence contained a considerable number of inconsistencies, which have been referred to in the course of canvassing the evidence. Some of these inconsistencies might well be explained by the fact that the incident clearly happened very quickly and no doubt the plaintiff was in a considerable degree of shock and distress following it. For that reason I do not consider, for example, that his initial denial that he went to the chemist shop or attempted to enter it for assistance is of significance. In those circumstances I would accept that the plaintiff in a distressed condition may well have forgotten that he had done so. 38 It is the case that courts will address circumstances of the nature illustrated in this case by applying commonsense and taking the view that if the cause of an accident is otherwise identified and its occurrence tends not to occur without carelessness the Court will tend to favour finding for the plaintiff, Nominal Defendant v Genn [2004] NSWCA 306. That, however, is not an absolute rule and is tempered by the circumstances of the particular case which of course are a matter for the finder of fact. 39 In this case I am not persuaded on the balance of probabilities that the accident occurred in the manner alleged by the plaintiff in his sworn testimony, which suggested that the unknown driver of the truck was negligent in failing to keep a proper lookout and failing to see the plaintiff before the vehicle struck the plaintiff. I am not persuaded that as the plaintiff appears to assert in his testimony that at the time of the collision the truck was on the incorrect side of the road in that it was either in or strayed into the middle lane for eastbound traffic. I further consider it most unlikely and indeed improbable that the truck was travelling in an incorrect lane and then straightened itself up and moved to the correct lane after it collided with the plaintiff because of the existence and position of the concrete median strips in the vicinity of the collision. 40 On the whole of the evidence I am of the view that the plaintiff simply cannot say where he was at the point of collision or where indeed the truck was, given that in particular he said he did not see the truck prior to the impact. In addition the plaintiff has given a number of different versions as to how the accident happened and where he was at the point of impact. There is a very significant difference between the description of the incident which I find the plaintiff gave to Mr Klein for the purposes of preparing Exhibit 3 some 10 days after the accident and what he said at least in part in his evidence in Court.
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41 Despite the plaintiff's attempt at explaining the variation and reason for it, as a matter of commonsense one would have thought that his recollection some 10 days after the incident would be considerably more reliable than some five years after the incident at time of trial. One cannot discount, except in one version of the plaintiff's evidence, that he was on or even over the continuous dividing lines in the middle of the road and in the middle lane for eastbound traffic but was stationary waiting for cars to pass him and believed it was safe to go when he was hit by the truck, the driver of which may well have anticipated that the plaintiff in waiting for the cars to pass would also wait for the truck to pass. This is particularly so as after the impact the driver of the truck did not stop his vehicle. In that case, on the evidence available one could not find that the driver had been negligent.
42 In relation to Exhibit 3 the information provided by the plaintiff clearly suggests that the unknown driver of the truck was travelling so close to the plaintiff's car as he was about to get back into it that the only logical conclusion is that at least part of the truck must have been extremely close to the plaintiff as he took one step from his car which was parked in the kerbside lane for westbound traffic. 43 Whilst it is correct that the plaintiff did not present as a highly sophisticated individual in giving his evidence, he was in my view relatively articulate and very clear in making various points during the course of his evidence. On occasion, however, when confronted with conflicting material such as inconsistencies between information contained in Exhibit 3 and his sworn testimony, the plaintiff behaved in an obviously evasive fashion and did not provide in some instances explanations for the inconsistencies which were plausible or credible. As was conceded by counsel on behalf of the plaintiff, assessment of the plaintiff's credibility and reliability is a crucial factor in these proceedings. 44 As I am not persuaded to the required standard that there was any negligence on the part of the unknown driver of the truck relevant to the cause of this accident it is unnecessary to proceed to consider and determine the issue as to whether or not there was any contributory negligence on the part of the plaintiff. 45 In relation to the outstanding issue I find that in all of the circumstances the plaintiff, insofar as it was possible, did satisfy the provisions of s 7(3)(a) of the Act in that he made due search and enquiry to ascertain the identity of the vehicle. In the particular situation there was little else that the plaintiff could do other than alert the police to the
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incident, although it is unclear whether he did this by way of one or two telephone calls or whether he made the report whilst still in hospital as distinct from the day after he was discharged. Whilst it may have been prudent and indeed helpful for the plaintiff to return to the scene after his discharge from hospital in order to ascertain whether any local shopkeepers or business persons may have seen or noted anything regarding the accident, I do not consider that there is an onus on a person in the position of the plaintiff to investigate the accident in that manner. 46 As the plaintiff has failed to establish liability in this action the claim is dismissed.
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