Knox v Pitney
[2000] TASSC 156
•7 November 2000
[2000] TASSC 156
CITATION: Knox v Pitney [2000] TASSC 156
PARTIES: KNOX, David John
v
PITNEY, Fiona
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 1279/1996
DELIVERED ON: 7 November 2000
DELIVERED AT: Hobart
HEARING DATES: 23, 24 October 2000
JUDGMENT OF: Underwood J
CATCHWORDS:
Torts - Negligence - Road accident cases - Liability of drivers of vehicles - Intersections and junctions.
Aust Dig Torts [91]
REPRESENTATION:
Counsel:
Plaintiff: T J Williams and M Duvnjak
Defendant: A Burrows-Cheng
Solicitors:
Plaintiff: Gunson Pickard & Hann
Defendant: Murdoch Clarke
Judgment Number: [2000] TASSC 156
Number of Paragraphs: 20
Serial No 156/2000
File No 1279/1996
DAVID JOHN KNOX v FIONA PITNEY
REASONS FOR JUDGMENT UNDERWOOD J
7 November 2000
In the late afternoon of Christmas Eve 1994, the plaintiff rode his Suzuki 750cc motor cycle out of his driveway onto Rianna Road, Lindisfarne and down to the junction of that road and Derwent Avenue. He stopped at the junction and then crossed Derwent Avenue and went down Eldon Street. It was his intention to turn left at the junction of Eldon and Talune Streets and ride along the latter street in an easterly direction, towards the shops at Lindisfarne.
As the plaintiff was riding his motor cycle down Eldon Street, the defendant was driving her silver Honda Prelude sedan in a westerly direction along Talune Street towards its junction with Eldon Street. The defendant's intention was to drive past the Eldon Street junction to visit her parents-in-law who lived at the end of Talune Street. Not far from the Talune and Eldon Streets junction the defendant fell in behind a Toyota Hilux dual cab being driven by a Mr Prettyman with his wife in the front passenger seat.
Mr and Mrs Prettyman lived at 27 Talune Street. The entrance to the driveway at 27 Talune Street was, and still is, virtually opposite the mouth of the junction so that if an imaginary line was drawn down the eastern gutter of Eldon Street and straight across Talune Street, it would enter Mr and Mrs Prettyman's driveway. About 12 metres back from the eastern side of the entrance to the Prettyman driveway, is Koluri Court.
As Mr and Mrs Prettyman approached the entrance to their driveway, Mr Prettyman indicated his intention to turn left and slowed. The defendant, who by this stage, was driving behind the Hilux, also slowed. In the next two or three seconds, the following events occurred:
· the Prettymans' vehicle left the highway and entered the driveway of 27 Talune Street;
· the defendant moved out to overtake the turning Hilux in order to continue down Talune Street;
· the plaintiff (who was intending to turn left at the junction) came off his motor cycle.
The plaintiff suffered an injury in the accident. That fact was admitted by the defendant. Although there was no contact between the defendant's motor vehicle and the plaintiff's motor cycle, the plaintiff claims that his injury was caused by the defendant's negligent driving. Whether it was, and, if it was, whether the plaintiff was guilty of contributory negligence, are the only issues presently for determination.
After the accident, the plaintiff did not appear to be seriously injured. Mr Prettyman collected a few pieces that had broken off the motor cycle, put them in the back of his Hilux and took them to the plaintiff's home in Rianna Road. The plaintiff wheeled his bike home. There are fundamental differences between the account given by the defendant and that given by the plaintiff with respect to the critical two to three seconds to which I have referred, and the period of almost six years that has elapsed since the accident has tarnished the memories of the plaintiff and the defendant. However, both were interviewed by an investigator on 18 January 1995, a little over three weeks after the accident, and both made a written statement. The material parts of the plaintiff's statement are as follows:
"At about 5.45pm on Saturday 24th December 1994, I was riding my Suzuki GSXR 750CC motor cycle in a southerly direction on Eldon Street upon leaving home to travel to my brother in law's residence in Midway Point.
As I approached the intersection of Eldon and Talune Streets, I indicated to turn left. I looked to my right and saw that I was okay to proceed and then looked to my left and observed a white coloured Toyota Hilux dual cab indicating to turn left into a private driveway almost opposite the intersection.
I began to merge into Talune Street as I thought it was clear and I then observed a silver Honda sedan registered number CR 4626 travelling around the right hand side of the Toyota onto the incorrect side of the road travelling toward my direction of travel.
I was then forced to take evasive action to avoid a collision and braked heavily resulting in the bike losing control and I dropped it on its left hand side sliding for a short distance."
The defendant's statement relevantly reads:
"At about 5.45pm on Saturday 24th December 1994, I was driving my Honda sedan registered number CR 4626 travelling in a westerly direction on Talune Street, Lindisfarne following a white four wheel drive owned by Mr Geoff Prettyman.
We approached the intersection with Koluri Court and I noticed the vehicle in front had its indicator on to turn left into Koluri Court. As this vehicle turned into a private driveway just after Koluri Court I went passed this vehicle on its right hand side just travelling across the centre line to continue to the end of Talune Street when I observed a motor cycle travelling south down Eldon Street some 10 metres prior to the intersection.
At this time I was travelling at about 20-30 km per hour as I had slowed down because of the vehicle that had turned in front of me.
When I first observed the motorcycle it was wobbling and my first thought was that he was not going to stop in time to give way at the approaching intersection.
I then noticed the rider lose control of the motorcycle and slid along the roadway. The bike came to rest about 1.5 metres past the give way line and the rider appeared to be still hanging onto it.
I pulled over opposite the intersection to check on this persons welfare and I noticed that he had a rip in his jeans around his knee and saw that he had a graze on his knee."
In addition to evidence from the plaintiff and the defendant, evidence was given by Mr and Mrs Prettyman. With respect to all of the witnesses, they impressed me as being honest persons doing their best to recollect events that occurred in a short space of time a very long time ago.
A "Give Way" sign is erected at the junction of Eldon and Talune Streets facing traffic travelling down Eldon Street in the same direction as that taken by the plaintiff. There was evidence, which I accept, that the junction is the same today as it was six years ago, except that some of the vegetation on the south-east corner of Eldon Street (to the plaintiff's left) had grown bigger, Talune Street had been resealed and some trees had been removed from the entrance to the Prettymans' property. The last two changes are immaterial for the purposes of this case. The plaintiff's view to his right down Eldon Street was restricted by a fence built close to the house on the south west corner of Eldon Street. The restriction was such that he would have been unable to see to his right up Talune Street until he was only a few metres from the "give way" line painted on the roadway. As there was no evidence with respect to the extent that the vegetation had grown on the south east corner of Eldon Street, it is not possible to make a finding when the plaintiff was able to see to his left down Talune Street, but as the plaintiff said that he did not look left until he was able to see that nothing was coming on his right, it follows that he took no view to the left, until he was virtually on the "give way" line.
In his statement to the investigator, the plaintiff did not describe his manner of riding, nor his speed, as he travelled down Eldon Street. He gave evidence of what he described as his normal practice for travelling down Eldon Street to its junction with Talune Street. He said that after he entered the top of Eldon Street, he moved up through the gears and sometimes reached fourth gear and sometimes not. He said that when he was about 60 to 80 metres away from the junction of Eldon and Talune Streets, he commenced to slow by going back down through the gears and lightly using the brake. He said that it was his practice to be in third gear about 20 metres from the intersection and then to change down to second gear, and finally into first gear when he was about three to four metres from the intersection. He said that in first gear he travelled at about 10 to 15 kilometres per hour. The plaintiff gave evidence that on the afternoon of the accident, he travelled down Eldon Street in his customary manner, but from the answers he gave, both in evidence-in-chief and in cross-examination, I have no confidence that he was giving evidence of his actual recollection, and not giving evidence of what he believed had occurred, having regard to his usual practice.
The plaintiff said that when he got close to the junction, he looked to his right and noted that there was no vehicle travelling along Talune Street in the direction that he intended to travel. According to the plaintiff's evidence-in-chief, he saw the Prettymans' vehicle as it was turning into the driveway. He said that at about the same time, he noticed the defendant's car behind it. He said it was then very close to Koluri Court. He then said:
"At the same instance I've seen the vehicle, within ¾ you know, within a moment, the vehicle was coming across the centre line. And just within a fraction it was two thirds, three ¾ over the ¾ there was only a quarter of the car left on the left hand side."
The plaintiff said that by that time his front wheel was in Talune Street and he immediately applied his brakes, pulled left, but came off his bike on Talune Street just over its junction with Eldon Street.
The defendant's account was that she was driving west along Talune Street and fell in behind the Prettymans' Hilux. She said that she slowed as they slowed. She was unable to recall whether the Prettymans' vehicle was indicating a turn left, but she knew that it was going to turn left. She said that it was not until the Hilux had almost completely left the roadway that she pulled out to go past it. In her estimation, it was unlikely that she pulled out more than a few centimetres over the centre line. She said that after she had cleared the Hilux, she looked to her right up Eldon Street and she saw the plaintiff. She said "I knew that he was going to have an accident". She described seeing the plaintiff about 10 metres or so back from the junction wobbling and, to her, he appeared to be out of control. She said that she continued to watch as she drove past and she saw him fall off the motor bike still holding onto the machine. She said that she could not recall exactly where the bike came to rest.
It is difficult to resolve these conflicting accounts. The evidence of Mr and Mrs Prettyman is of some assistance. I accept their evidence.
Mr Prettyman said that he was travelling along Talune Street towards his home at approximately 40 kilometres per hour. Nearing his home, he noticed what he now knows to have been the defendant's vehicle coming up behind him. As he approached the entrance to his driveway, he turned on his left indicator and slowed, almost to a stop, to turn left into 27 Talune Street. He said that "the car passed me as I was entering the driveway". To his best recollection, when this occurred, his vehicle was partly on the roadway and partly off the roadway. He said that the next thing was an exclamation from his wife and he looked into the rear vision mirror and saw the motor cycle lying on its side close to the gutter in Eldon Street back from the junction with Talune Street. Accepting Mr Prettyman's evidence, as I do, I find that the defendant was in error when she said that at the time she went passed the turning Hilux it was almost completely off the road. I find that some part of it was off the roadway and some part of it was still on the road when she pulled out to overtake. It follows that I find that in order to go around the turning Hilux, the defendant moved over the centre of the roadway, but I am unable to make a finding as to the extent to which she crossed over the centre of the road. I am not prepared to prefer the plaintiff's description of three quarters of the defendant's vehicle being on the incorrect side of the road for he had only the briefest moment to observe the position of the car on the road before he was preoccupied with trying to avoid falling off his bike. To whatever extent the defendant may have crossed over the centre of the road, I find that she commenced this manoeuvre when she was something in the order of 12 metres back from the Prettymans' driveway entrance. From that point on the roadway she would not have been able to see up Eldon Street much past the "give way" line painted on the roadway.
Mrs Prettyman's evidence was particularly illuminating. She confirmed that her husband slowed down as they made the turn into their driveway. She was paying no attention to traffic behind her and was unaware of the existence of the defendant. She said that as they were making the turn, she heard a noise that sounded like a motor bike which "drew my attention". She looked to her right and saw a motor bike coming towards the intersection of Eldon and Talune streets. She said it was not then quite at the intersection. As Mrs Prettyman would have been deprived of that view by the time the Hilux had completed it turn, I find that as the left turn commenced, the plaintiff's motor bike was some distance back from the intersection. The motor bike was travelling at such a speed that Mrs Prettyman feared that it would not be able to make a left hand turn and that it would slide across the road and into the back of their retreating vehicle. She called out to her husband, "quick". She said:
"The lean on the motor bike, and that it didn’t appear to me as if it could actually stop at the intersection, and it would come straight out on to Talune Street. And because of the lean it had, I was rather fearful it may not make the turn and slide into us, or come straight into the ute. Well not straight into the ute because he was leaning. But I just ¾ I just had this horrible feeling that maybe …".
She later said that the bike appeared to be travelling quite fast.
I accept all of that evidence and in consequence reject the plaintiff's account of his speed as he approached the intersection. I find that the plaintiff was travelling in excess of the speed he claimed he travelled, but the evidence does not permit me to make any more precise finding with respect to this aspect of the case. However, having regard to the limited visibility of any traffic that might be travelling either way in Talune Street, any speed in excess of that claimed by him reduced his capacity to obey the requirements of the "Give Way" sign.
There was a conflict on the evidence with respect to where the bike came to a rest. A plan of the junction was tendered in evidence by consent. There was no evidence of who drew it or when it was drawn. On it there is drawn an oval with an arrow pointing to it and the word "Fluid" at the end of the arrow. There was no explanation of this other than that given by the plaintiff who said that when the bike was lying on its side, petrol leaked out and that the oval marked the spot where he came off his bike. The oval is drawn about a metre and a half into Talune Street opposite its boundary with Eldon Street. Mr Prettyman said that the bike came to a rest in Eldon Street back from the junction. Mrs Pitney said that the bike lay just on the boundary of Eldon and Talune Streets. There is not a lot of difference between these accounts, but having regard to the finding that I have made with respect to the plaintiff's speed, the probabilities are that he saw the defendant's car when he was something in the order of 10 metres back from the intersection. From that point he would not have been able to see her until a fraction before she began to pass across the junction. For some reason, perhaps because he then saw the defendant on what appeared to him to be right over the incorrect side of the road, he began to brake heavily. These findings are consistent with the evidence of Mrs Prettyman and the evidence of the defendant.
On behalf of the plaintiff, Mr Williams submitted that the defendant was in breach of her duty of care by crossing to the incorrect side of the road when it was unsafe to do so. The plaintiff has not established that allegation. There was no reason why the defendant should not have pulled out when she did to overtake Mr and Mrs Prettyman's vehicle. According to the plan, the roadway there was approximately eight metres wide. Even if the defendant pulled out over the centre line, the road was wide enough for the plaintiff to have driven his bike left into Talune Street unless the defendant went so far onto her incorrect side as to occupy the whole of the northern side of the carriage way. There was no oncoming traffic. At the time she pulled out she was not able to see the plaintiff as he would then have been a few metres back from the "give way" line. The primary obligation was on the defendant to give way to all traffic in Talune Street. Of course, the defendant was not entitled to drive without keeping a proper lookout and she was not entitled to proceed on the assumption that traffic in Eldon Street would obey the injunction to give way to traffic in Talune Street. See Sibley v Kais (1967) 118 CLR 424. The accident happened in a quiet suburban area. There was no oncoming traffic. The obligations on the defendant were not such that she should have delayed pulling out from behind the Prettymans' turning vehicle until she could clearly see up Eldon Street, unless she went right over onto her far incorrect side, but the plaintiff has not established that she did this. The plaintiff has not established that the defendant's overtaking manoeuvre deprived him of sufficient room on Talune Street to have completed his left turn at a slow speed. Mr Williams submitted that the plaintiff acted "in the agony of the moment" and thus his actions should be judged in that context. This is no doubt correct, but it does not assist the plaintiff because the agony of the moment was created by him approaching the intersection at a speed that deprived him of the opportunity to properly assess the situation and to take appropriate action to avoid coming off his motor bike. Given that the plaintiff's bike and the defendant's car did not come into contact, the plaintiff has to establish on the balance of probabilities that the defendant's actions, as I have found them to have been, were in breach of the duty of care that she owed him and presented him with a potentially dangerous situation. This he has failed to do. There will be judgment for the defendant.
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