Jones v Hughes

[1999] QCA 481

SUPREME COURT OF QUEENSLAND

CITATION:	Jones v Hughes [1999] QCA 481
PARTIES:	DANIEL EDWARD JONES (Plaintiff/Appellant) v JEFFREY ALLAN HUGHES (Defendant/Respondent)
FILE NO/S:	Appeal No 3675 of 1999 SC No 982 of 1994
DIVISION:	Court of Appeal
PROCEEDING:	Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	19 November 1999
DELIVERED AT:	Brisbane
HEARING DATE:	10 November 1999
JUDGES:	McMurdo P, Davies JA and Williams J
ORDER:	Appeal dismissed with costs.
CATCHWORDS:	TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – INTERSECTIONS AND JUNCTIONS – appellant turning across oncoming traffic – at trial held respondent not negligent – whether respondent should have slowed down further – whether respondent reduced appellant's visibility by passing too close to stationary van – opinions of trial judge not disturbed.
COUNSEL:	Mr J A Griffin QC, with him Mr AJ Macklin for the appellant Mr KC Fleming QC, with him Mr JS Miles for the respondent
SOLICITORS:	Rick Byrne & Associates for the appellant Bradley & Co for the respondent

1. THE COURT:  The appellant sustained serious personal injuries when the motor cycle he was riding came into collision with a motor cycle being ridden by the respondent at the intersection of the Mt Lindsay Highway with Granger Road and Stoney Camp Road, Park Ridge, on 12 April 1993.  The learned trial judge held that the accident was solely caused by the negligence of the appellant and dismissed the action.  Damages were assessed in the total sum of $370,867.11. 

1. On the hearing of the appeal, counsel for the appellant did not challenge the finding that the appellant was negligent.  The contention was that the learned trial judge erred in not finding the respondent guilty of negligence to some extent, albeit to a lesser degree than that of the appellant.  The argument as presented for the appellant essentially came down to two propositions.  First, the respondent was travelling at too great a speed in the circumstances.  Second, the respondent travelled too close to the stationary van thereby making it impossible for either motor cyclist to have seen the other until it was impossible to avoid the collision.

1. The highway and intersection in question, together with relevant road markings, are shown in the Department of Transport Plan which was Exhibit 44.  There were also a series of photographs tendered as exhibits which showed the relevant road markings and some of the aftermath of the collision.

1. The learned trial judge accepted the evidence of the respondent and the independent witness Bell, who at the material time was stationary in a motor vehicle at the mouth of Stoney Camp Road.  Consequent upon his preference for the evidence given by those witnesses, the learned trial judge set out a number of detailed findings with respect to the collision.  It is not necessary in these reasons to refer extensively to those findings.

1. The highway generally travelled north-south and the speed limit was 100 kilometres per hour.  The appellant on his motor cycle was travelling in a northerly direction intending to make a right hand turn into Granger Road.  The respondent was travelling in a southerly direction and intending to travel straight through the intersection.  Centre line markings divided the highway into one lane travelling in each direction as one approached the intersection; that centre line marking indicated that vehicles approaching the intersection from either direction could not cross the centre line.  From either direction that centre line marking ceased at the mouth of the intersection and was replaced by a diamond turn marking formed by broken white lines; that indicated right turns could be made in all directions at the intersection.

1. The highway, on either side of the intersection, was also line marked so that there was an access/egress lane primarily for vehicles travelling into or out of Granger Road and Stoney Camp Road.  That access/egress lane could also be utilised by motor vehicles going straight ahead where there was a vehicle stationary on the highway intending to make a right hand turn at the intersection.

1. At the material time a van with attached trailer was stationary in the main south bound traffic lane intending to make a right hand turn from the highway into Stoney Camp Road and had been there for some time.  On the evidence at least two vehicles travelling south passed to the left of that van using the access/egress lane prior to the respondent reaching the intersection.

1. The respondent had been travelling at about 90 to 100 kph, but as he approached the intersection he reduced his speed to between 60 and 70 kph.  As he neared the stationary van he moved his motor cycle to the left so that it entered the access/egress lane, passed the stationary van, and immediately after that drove his bike back towards the main south bound lane of the highway.  The respondent saw the appellant's motor cycle a fraction of a second before the collision occurred on or almost on the broken line separating the main south bound lane from the access/egress lane. 

1. As the appellant approached the intersection on his motor cycle, he had visibility along the highway for a distance of at least one kilometre.  He saw the van stationary at the intersection facing in a southerly direction.  The appellant when about 200 to 300 metres north of the intersection was travelling at about 100 kph and thereafter he slowed down using brakes and gears until his speed was probably less than 40 to 50 kph, but probably considerably more than five or 10 kph.  About a metre before the end of the marked centre line and the commencement of the diamond turn markings the appellant commenced a sweeping turn to his right intending to travel into Granger Road.  In executing that sweeping turn, his motor cycle was not vertical but leaned over to its right.  The appellant did not see the other motor cycle prior to the collision.

1. It is clear the learned trial judge accepted the evidence of Bell in using the expression "sweeping turn" to describe the manoeuvre of the appellant.  In that regard it is worth quoting a passage from Bell's evidence:    

"Sweeping is a term I use to describe a motorcycle when it's actually turning or negotiating a bend but we are not actually having the motorcycle upright or at a slight lean, as in forward motion, and the term I use 'sweeping' is when you have got a motorcycle turning or negotiating a bend but we are actually doing it a little bit quicker then maybe some others would like or attempt to do, and because of the forward momentum and the speed at which this forward momentum is carrying that motorcycle we lean the motorcycle in the direction of the turn or the bend."

1. The learned trial judge accepted that Bell was an experienced motor cyclist.

1. There was a finding that the point of collision was probably about one metre south of where the dotted diamond turn line intersects the broken line which divides the south bound highway lane from the eastern access/egress lane. 

1. The appellant was familiar with the intersection and conceded in cross-examination that if he was travelling, as was the respondent, south bound along the highway and there was a vehicle ahead at the intersection waiting to turn right, he would pass that vehicle on its left hand side by travelling into the access/egress lane and then merging back into the straight ahead lane of the highway.  Indeed, he noted two other vehicles pass the stationary van in that manner before he commenced to make his right hand turn.  As the learned trial judge observed:

"These admissions by the plaintiff disclose that not only was he aware of the type of manoeuvre which the defendant performed but before he began his right-hand turn he had on that afternoon seen two other vehicles travelling in a southerly direction pass the Hi Ace on its passenger side."

1. Finally in dealing with findings made by the learned trial judge, it was found that before the appellant began his right hand turn the van and the trailer it was towing obscured to a substantial extent his vision ahead along the south bound lane of the highway.  The learned trial judge went on:

"Without stopping or slowing his motor cycle the plaintiff began and partly executed his right-hand turn moving completely onto and part way across the south-bound lane of the highway – the collision occurred before he completed that turn."

1. The learned trial judge concluded that the actions of the respondent were "that of a reasonable motor cyclist".  He reduced his speed and proceeded to the left of the stationary van travelling straight ahead in a southerly direction, albeit turning back so that he would be in the main south bound lane of the highway.  The learned trial judge rejected the submission that he was negligent in turning back into that main south bound lane.

1. Decisions on other factual situations are not of great assistance.  This was a highway intersection, not a city or suburban one.  The road markings, and road width, meant that it was reasonable and safe for the respondent to do what he did.  At all times he was travelling well within the applicable speed limit.

1. In those circumstances the learned trial judge concluded that the sole cause of the collision was the negligence of the appellant in turning across the path of oncoming traffic when he did not have clear visibility.

1. On the hearing of the appeal counsel for the appellant submitted that the respondent should have slowed to a speed of 30 to 40 kph as he passed the van.  But it seems obvious that even at that speed the collision would have occurred.  Counsel conceded that it was unreasonable to suggest that the respondent should have stopped completely.  In the circumstances the conclusion reached by the learned trial judge that the respondent's speed was not such as to make him negligent was clearly open and there is no basis for this Court interfering with that conclusion.

1. There is no evidence as to the distance between the respondent's motor cycle and the stationary van as the respondent passed to its left.  However, it does appear that the collision occurred a short distance ahead of that van.  It was submitted by counsel for the appellant that the respondent was negligent in not travelling further to the left of the van thus improving the line of visibility between the two motor cycles.  It is sufficient to say that the evidence does not support such a conclusion.  It is impossible to infer (particularly in the absence of a finding by the learned trial judge) from the fact that the collision occurred a short distance in front of the stationary van that the respondent passed so close to it that he unreasonably deprived the appellant of an opportunity of avoiding the collision.

1. The findings made by the learned trial judge were reasonably open on the evidence, as were his conclusions.  No basis has been established for this Court interfering with those findings and the conclusion.

1. The appeal should be dismissed with costs.