Jones v Farrow

[1991] TASSC 161

Serial No B47/1991
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Jones v Farrow [1991] TASSC 161; B47/1991

PARTIES:  JONES, Ronald L
  v
  FARROW, P

FILE NO/S:  490A/1990
DELIVERED ON:  6 September 1991
JUDGMENT OF:  Slicer J
CATCHWORDS

Negligence.

Judgment Number:  B47/1991
Number of paragraphs:  

Serial No B47/1991
List "B"
File No 490A/1990

RONALD L JONES v P FARROW

REASONS FOR JUDGMENT  SLICER J

6 September 1991

1. On 20 July 1989 towards midday an accident occurred at the intersection of Derwent Park Road with Benders Drive. The intersection is in the form of a T–junction with Benders Drive ending at Derwent Park Road. It was common ground that prior to the accident the plaintiff was travelling west, in a Mercedes sedan, along Derwent Park Road intending to turn left into Benders Drive, and the defendant was driving his Mazda sedan south along Benders Drive intending to turn right. The collision occurred in Benders Drive some little distance from the intersection. There is little or no common ground beyond the above facts.

1. The plaintiff's case was that he turned left into the intersection, remained on his correct side of the road and was struck by the defendant's motor vehicle which was, at least, partly on its incorrect side. The defendant's version was that he was driving on his correct side and was struck by the Mercedes in the course of or following an excessive turn into the intersection. The case is essentially one of credibility of witnesses.

1. The plaintiff gave evidence and called two witnesses, both of whom were passengers in the Mercedes. The defendant gave evidence and also called two witnesses, each claiming to have been in separate vehicles following the defendant and were eye witnesses to the collision.

DESCRIPTION OF INTERSECTION

1. Apart from the differences as to the course of the vehicles, there was conflict as to the condition and dimensions of the roadway. The plaintiff and his witnesses maintained that the road was sealed, and that its dimensions were approximate to those illustrated in photographs taken in 1991 and tendered as P1 and D1. All said that the kerbing to the roadway had not been completed. The defendant and his witnesses all maintained that the roadway was unsealed and was in a gravelled and corrugated condition. The date of the accident coincided with the opening of the International Catamaran project. However the evidence of the defence witnesses was contradictory and lacked coherence. Mr Ellis, for example, was not sure if the roadway was sealed at the time of the opening of International Catamarans and believed that the kerbing had been completed before the road was sealed. He also was of the belief that the roadworks were commenced some 200 metres from the intersection and then worked back towards the junction. Mr Purcell believed that there was guttering from outside the Trident factory to the freezer works. In other words, both witnesses seemed to be contending that the construction of the concrete guttering commenced in the middle section of the Drive and then proceeded in two directions, towards and away from the intersection. Given my other findings as to credibility, I do not accept their memory as to the condition of the roadway at the time of the accident. I much prefer the evidence of Mr Christopher Gourlay. He had been involved in the Catamaran project as well as other developments in the area. He had been accustomed to regular visits to the area and gave clear, precise and considered evidence. I accept his memory as being accurate. He was certain that the road was sealed, but that the western kerbing, as shown in the exhibit photographs, was not then in place. The width of the roadway at the intersection was approximately the same as shown in the photographs.

1. I do not accept that there were road markings at the time of the accident. Mr Peter Cleary, a witness for the plaintiff, made reference to a painted centre line in Benders Drive. He was either mistaken in memory or attempted to reconstruct the road markings because of their presence in the photographs shown to him at the trial.

FINDING AS TO CONDITION OF INTERSECTION

1. I find that the roadway was sealed but that the western kerbing was not then in place. The intersection was wide with a gradual narrowing as the road extended north. There was a pothole near the junction some 2 – 3 feet wide and 15 feet in length, adjacent to the verge of the roadway. The two streets met at an angle slightly in excess of 90⁰ . The road surface was damp.

CIRCUMSTANCES OF ACCIDENT

1. The plaintiff's case was that the Mercedes turned left, but stayed within its correct portion of the road, when it was hit by the Mazda at a slight angle to its direction of travel. It had completed its turn and was travelling in a straight line. The plaintiff deposed to seeing the Mazda just before impact with its driver's attention diverted. That observation was corroborated by Mr Cleary, the front seat passenger in the plaintiff's motor vehicle. The Mazda was in part on its wrong side of the road. The accident occurred some little distance back from the junction. The point of impact was between the front right hand side of the Mazda with the middle portion of the Mercedes. The angle of impact was probably due to the attempt by the plaintiff to veer left at the last moment.

1. I accept that version of events in preference to the version advanced by the defendant. I do so for a number of reasons.

1. The first is that I accept the evidence of Mr Christopher Gourlay, who gave considered and precise testimony. He declined to give evidence as to the contents of a conversation alleged to have occurred after the accident because he could not be sure in his own mind whether he had a direct recollection or had obtained an awareness by things recounted after the occurrence. Recollection of the conversation would have advantaged the plaintiff. He gave evidence solely as to what he had seen and remembered. He impressed as an accurate and reliable witness. He did not profess to see the accident but recounted precise details of the position of the vehicles after the collision. His observations were to the effect that the Mercedes was on its correct side of the roadway and that the Mazda was towards the middle of the road. After the collision, other vehicles were able to pass to the left hand side of the Mazda. This observation was, in fact, corroborated by the two witnesses called by the defendant, namely that they had been able to pass to the left hand side of the Mazda.

1. The second concerns the conduct of the parties after impact. There was uncontested evidence that after collision the plaintiff got out of his vehicle and accused the defendant of failing to pay attention. Both the plaintiff and Mr Cleary gave an account of the accusation and Mr Gourlay corroborates the action but not the contents of the conversation. The defendant does not contest the approach by the plaintiff but claims that the plaintiff told him that he would take the defendant for everything he had. The defendant does not claim that he protested the accusation nor that he alleged the plaintiff to be at fault.

1. The third reason arises from the evidence of the defendant and his witnesses. He did not impress me as a witness with an accurate recollection of the events. His evidence lacked internal consistency and was in marked contradiction to answers made under oath to interrogatories administered to him before trial. He claimed that his vehicle (with automatic transmission) was still in second gear after some 300 metres of travel. He said that he observed the Mercedes when it had just come over the bridge (the bridge being almost at the junction) and that his vehicle would have been some 40 metres or more distant when he first saw it. He said that his vehicle was then some 30 – 40 metres from the junction when he first saw the Mercedes. Yet he deposed that the accident occurred only 5 metres from the junction. In his answers given to interrogatories he had deposed that the accident had occurred 20 – 30 metres from the intersection, that he first observed the Mercedes when it was some 7 – 10 metres distant. He contended in evidence that he did not have the Mercedes in view at all times. This of itself contradicted the answers given in response to the interrogatories. I do not regard his version as being an accurate recollection. I take the same approach to the witnesses called by him. Mr Ellis and Mr Purcell both deposed that they were workmates of the defendant, that they were in following cars and had witnessed the accident. Again their evidence lacked internal consistency and contained elements of partisanship. Mr Ellis said that he had not seen the defendant since the events, but conceded that he had seen him drive past. In evidence–in–chief he was asked:

"Q       Have you seen him since the 20th July?

A        Not to actually talk to, no, sort of you know see him drive past."

Later when asked for details, he said, in answer to the question:

"QWhere have you seen him drive past? Does he drive past your home?

ANo, no. Round Moonah, Glenorchy area. Sometimes when I go out to pay bills and do the shopping. You know, you sort of see the car because its still, not actually, I suppose yes, its still damaged. Different panels you know. It's not actually the original car."

And in a further answer:

"AJust sort of see the car and sort of the damage of the car. Sort of glance and noticed he was driving it. That's all."

1. I gained the impression of an artificial attempt to achieve the status of an independent witness. Mr Ellis deposed that he was travelling about a car's length behind the defendant at the time of the collision. And yet on his version, given the nature of an unsealed road, he was able to stop without himself colliding. He puts the accident some 3 car lengths from the junction.

1. Despite travelling one vehicle's length behind the defendant's vehicle, he claimed that after the collision he managed to stop his vehicle while still one–half of a car length away. Surprisingly, on his version, he did not alight from his vehicle but drove to the left hand side of the defendant's vehicle and continued his own journey. Mr Purcell gave a similar version. He claimed to be some 2 – 3 car lengths behind Mr Ellis. He also did not alight from his vehicle but managed to pass to the left hand side of the defendant's vehicle.

1. I do not accept either witness as having an accurate memory of the events. I do not doubt that they came across the accident scene but do not accept that they witnessed the actual impact.

FINDINGS

1. It follows from the preceding that I find that the collision occurred after the Mercedes had completed its left hand turn into Benders Drive and had straightened up. It was on its correct side of the roadway. It was struck by the Mazda which was in part on its incorrect side of the roadway. The Mazda was on its incorrect side of the roadway because of inattentiveness on the part of the defendant, whether because of his looking down or his checking for other vehicles being irrelevant.

1. Given the finding, it is as his counsel correctly conceded, difficult to find any contributory negligence on the part of the plaintiff. It follows from the above finding that particulars (a), (b), (d) and (e) of par4 of the plaintiff's statement of claim are substantiated. Particulars (a), (b), (d) and (h) of the defence and counterclaim are rejected. Particulars (c) and (f) of the statement of claim were never seriously contended and particulars (e) and (g) of the defence and counterclaim are irrelevant to the finding. There is no finding of contributory negligence.

QUANTUM

1. The parties agreed the quantum of damage suffered by the plaintiff at $10,030.59.

1. There will be judgment for the plaintiff in the sum of $10,030.59.