Lancaster v HEIJN - [2000] WADC 31

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LANCASTER -v- HEIJN [2000] WADC 31

CORAM: CHARTERS DCJ

HEARD: 1, 2 FEBRUARY 2000

DELIVERED : Delivered Extemporaneously on 2 FEBRUARY 2000 typed from tape and edited by Trial Judge.

FILE NO/S: CIV 2842 of 1998

BETWEEN: RODNEY SIEMON LANCASTER
Plaintiff
AND
JUSTIN MATTHEW HEIJN
Defendant

Catchwords:

Negligence - Motor vehicle accident - Turns on its own facts

Legislation:

Nil

Result:

Plaintiff negligent and defendant contributorily negligence to the extent of 65 per cent

Representation:

Counsel:

Plaintiff: Mr J Potter
Defendant: Mr B Sierakowski

Solicitors:

Plaintiff: Hoffmans
Defendant: Brian C Sierakowski

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

CHARTERS DCJ : The plaintiff, now 34 years old, claims damages for personal injury by accident arising from a motor vehicle accident on 11 October 1992.
At the commencement of this trial the plaintiff sought to lead the evidence of a psychiatrist and it was agreed by both parties that because this was new evidence which required consideration by the defendant, the matter of damages should be deferred. I am accordingly determining the question of liability only.
On the evening of 11 October 1992 the plaintiff and two others had been drinking alcohol at a tavern about 5km from the junction of Gascoyne Way with Willmott Drive, Cooloongup. Shortly before 9.30pm the plaintiff drove his V8 Ford panel van with one passenger in the front seat and another passenger lying on a mattress on the floor behind the front seats.
The accident occurred when the plaintiff driving the panel van along Willmott Drive in a southerly direction collided into the rear of the defendant's Holden station wagon a short distance past the junction with Gascoyne Way. Travelling along Gascoyne Way in a westerly direction, Gascoyne Way meets Willmott Drive at a T-junction. The junction is not regulated by signs or lights and neither Gascoyne Way nor Willmott Drive is marked by white lines.
The plaintiff and his two passengers gave evidence on his behalf as to the circumstances leading to the collision and the defendant gave evidence of his driving to the junction and left into Willmott Drive. The plaintiff was ultimately tested for alcohol consumption and was found to have a blood alcohol content of 0.127 per cent. He pleaded guilty to an offence accordingly. There is no evidence that the defendant was either tested or found to have any percentage of alcohol in his system.
The plaintiff in much of his evidence was unsure of events, events such as making a statement to the police or an investigator after the accident and I found him to be an unreliable witness as to the facts. Part of his claim is that from the accident he suffered head injury and loss of memory.
Mr Shane Michael Sadler, the passenger in the plaintiff's vehicle who was upon the mattress behind the front seats, was not in a position to observe in any detail the events leading up to the accident. He too had been drinking before the accident. I am not satisfied he could speak of the speed of the plaintiff's vehicle nor in any reliable detail of these events.
The other witness, Mr James Scott Ruwoldt, had also been drinking with the plaintiff and I have no confidence that he was in a position to have a clear recollection of the events. He could not say with certainty what he had been drinking. He could not recall whether the road was marked with a line though he lived nearby at the time and he lost consciousness after the accident.
The defendant, on the other hand, gave his evidence in a thoroughly satisfactory manner and I prefer his evidence to that of the plaintiff and the latter's two witnesses. With one reservation I accept his evidence.
I now relate the facts I find to be proved. The speed limit in the relevant area was 60km/h. The road was damp but there was no evidence that it was slippery. There was a street light but I am not satisfied that it assisted the drivers of the vehicles in question. Willmott Drive was 7.4m wide and Gascoyne Way was 13.8m wide.
Willmott Drive 150m from its junction with Gascoyne Way in a southerly direction curved to the left. There were that night two cars parked on the eastern side of Willmott Drive at the bend and a solid fence surrounding a house on the northern corner of the junction - again on the eastern side of Willmott Drive. These features would to some extent obscure the view to the defendant's right.
The plaintiff drove the panel van at a speed considerably in excess of 60km/h in a southerly direction towards Gascoyne Way. A witness called by the defendant, Mr Kerry Charlesworth, estimated the speed at least at 110 to 120km/h. I treat that witness' evidence as to actual speed with caution because it is unquestionably difficult to assess speed of a vehicle travelling across one's vision. He was, moreover, 200 to 250m away at the time. I am satisfied Mr Charlesworth was, however, an experienced driver. He saw the plaintiff's panel van travelling very fast indeed and well in excess of the permitted speed limit. The panel van made considerable noise. He did not see the defendant's vehicle but I bear in mind that that vehicle was travelling to the junction away from Mr Charlesworth.
The reservation I have of the defendant's evidence is this: had the defendant looked to his right immediately before turning into Willmott Drive, he would have seen the panel van. I accept that the plaintiff, when he rounded the bend 150m back from the junction, saw the defendant's station wagon enter Willmott Drive from Gascoyne Way.
I have regard to the mathematical fact that a vehicle travelling at 100km/h would travel about 27.7m per second or 150m in 5.4 seconds. So far as the defendant is concerned he would have had a short time indeed to see the panel van if, as I find to be the case, it was travelling at high speed.
The headlights of the panel van approaching Gascoyne Way probably were visible before the panel van rounded the bend.
From the bend, 150km from the junction, the plaintiff observed the defendant move from Gascoyne Way at a very slow speed, probably a few kilometres per hour into Willmott Drive.
The defendant had travelled some 500m from a residence to the junction. He approached Willmott Drive at a slow speed but did not stop. He looked to his right and entered the junction, turning left into Willmott Drive. Upon the defendant straightening out in Willmott Drive, the plaintiff accelerated to overtake the defendant on the righthand side but in the result collided into the rear of the defendant's vehicle. The road was not wide but I reject the plaintiff's evidence that the defendant moved to the righthand side of Willmott Drive. The plaintiff misjudged the available space for overtaking the defendant's vehicle or simply approached too fast and collided into the rear of the defendant's station wagon.
The evidence of Senior Constable Marshall suggests there was no significant move either right or left of the plaintiff's assumed line of travel to the point of impact. There were skid marks 70 to 80m long leading to the panel van.
The evidence of Mr Napier, an investigator, who visited the scene one month later is somewhat different from that of Senior Constable Marshall. The brake marks upon his inspection commenced just south of the centre of Gascoyne Way and just west of the centre of Willmott Drive. His sketch, exhibit 18, shows a slight divergence from west to east of the line of travel of the vehicle making those marks. I find that the brake marks shown on exhibit 18 were those of the panel van.
The plaintiff's vehicle came to rest about 44.m from the commencement of the brake marks. Mr Napier's measurements were taken by reference to chalk marks he saw on the road. I accept Mr Napier's evidence that the gouge marks represented the position of impact on the road. The impact was considerable and I accept the defendant's evidence that it was, as he put it, of tremendous force.
I am not satisfied on balance that there was any significant diversion of the panel van from the right, that is the west of Willmott Drive, to the left, that is east of that road. The point of impact is represented, as I say, by the gouge marks on exhibit 18 and from there the defendant's station wagon was thrust some 25.4m to the place it came to rest on the western side of Willmott Drive.
The defendant's station wagon had travelled 27.8m from its entry to the junction before impact. The defendant had completed the turn into Willmott Drive and was driving south when the plaintiff collided into the rear of the defendant's vehicle.
Although the defendant's view to his right was obscured to some extent he was under a duty to take great care in entering Willmott Drive. He should have seen the panel van or at least its headlights approaching from his right and failed to do so.
The defendant was negligent in failing to keep a very careful lookout to his right to the extent that he was required under these difficult conditions and the plaintiff has accordingly established a basis in negligence for his claim for damages. Nevertheless, the plaintiff by his excessive speed which was well in excess of 60km/h, the speed limit for that area, was quite unable to deal with the emergency which presented itself to him. His manoeuvre on approaching the defendant is consistent with excessive speed and a failure in time to apply his brakes. His manoeuvre in accelerating was indeed reckless.
Had the plaintiff travelled at a safe speed, he would either have avoided the impact or certainly minimised its severity. His capacity to manage his vehicle in a satisfactory manner was impaired by his consumption of alcohol. He lacked the ability to react upon seeing the defendant in front of him. The plaintiff certainly demonstrated a failure to judge properly the manner in which a collision was to be avoided.
Whilst the defendant must bear some responsibility for the collision, the plaintiff is substantially to blame on account of his excessive speed and the manoeuvre by way of accelerating his vehicle to try to pass the defendant and he has largely contributed to the collision and the severity of the impact.
The plaintiff having contributed to the collision in this manner must accordingly bear a large part of the blame. I put this at approximately two‑thirds to one‑third and the extent of his contribution I would set at 65 per cent and his damages will be reduced accordingly.