Lane v Arciuolo No. DCCIV-99-962

LANE V ARCIUOLO

[2001] SADC 8

1................ JUDGE BURLEY......... The plaintiff claims damages for personal injury arising out of a motor vehicle accident on 15 July 1996 at about 4.05 pm. The time and place of the accident is not in dispute. It occurred on Findon Road near the junction of Findon Road and Dillon Avenue, Findon, South Australia. Damages have been agreed so it is only necessary to determine the question of liability.

Only two witnesses were called, the plaintiff and the defendant. In addition, the report of Mr Andrew Mitton was tendered by consent and is Exhibit P2. Mr Mitton prepared a plan of the scene which is Exhibit P1. In his report he refers to a plan being attached to the report and I assume that the plan he refers to is the plan which was tendered in evidence. However, there is reference in his report to the scale of plan being 1:400. The plan itself shows a scale of 1:500. The scale designation on the plan is correct.
The scene of the collision has not materially changed since July 1996. Findon Road, at the point where the collision occurred, runs in approximately a north/south direction. The plan shows the driveways of a number of premises on the western side of Findon Road. The street numbers for those premises are 344, 340 and 338. The property known as 344 Findon Road has two driveways, one for “in” traffic and one for “out” traffic. The “in” traffic driveway is to the north of the “out” traffic driveway. Findon Road is divided by a right broken line. Opposite number 344, Findon Road is divided into two carriageways, the western being 6.6 metres wide and the eastern 6.1 metres. At about the driveway of number 340, the western carriageway (for north-bound traffic) widens in the sense that the western edge of the bitumen surface and, for part of the distance, the kerbing, are more to the west. The plan indicates that the actual carriageway is significantly wider than the carriageway both south and north of that position, but the situation is more accurately shown in Photograph 4 which is part of Exhibit P2. The increase in the width of the road at that stage is more appropriately described as a parking bay, although it would be correct to say that a vehicle travelling north towards the parking bay, if embarrassed by movements of cars ahead of it, would have more room to manoeuvre to the west as a result of that parking bay.
The area that I have described as a parking bay is the area immediately to the south of the driveway of number 340 to a point just north of the area marked “shops” in P1. The northern end of the parking bay is directly opposite Dillon Avenue which forms a T-junction with Findon Road. Dillon Avenue commences on the eastern side of Findon Road and runs in roughly an east/west direction.
The parties are in agreement that at the time of the accident the weather conditions were fine and visibility was good.
The plaintiff and the defendant each gave different versions of how the accident occurred. The plaintiff said that prior to the collision he was driving in a northerly direction along Findon Road when a motor vehicle pulled out of what has now been identified as the driveway of number 338 in front of his vehicle, crossed over the western carriageway of Findon Road and came to a halt as if to turn right into Dillon Avenue. He said that the other vehicle was under forceful acceleration when it pulled out of the driveway of number 338 and crossed the western carriageway of Findon Road. He said that when he first saw the vehicle he was approximately 20 metres south of that vehicle and travelling at about 60 kilometres per hour. He said that the suddenness of the appearance of the other vehicle was such that he had no time to react or avoid a collision with the other vehicle, although he did apply his brakes and, by the time the collision occurred, his wheels were locked. He said that the front right-hand corner of his vehicle came into contact with the rear left-hand corner of the other vehicle. It is common ground that the vehicle he came into collision with was a vehicle being driven by the defendant. The plaintiff said that when the defendant’s vehicle came to a halt it was at an angle of 45 degrees approximately to the centre line of Findon Road. He said that the defendant’s vehicle was stationary for only a split second before the collision occurred. The plaintiff said that his vision of the defendant’s vehicle was obscured by a pantechnicon that was parked alongside the western kerb of Findon Road immediately south of the driveway of number 338.
The defendant gave a quite different version of how the accident occurred. He was a parcel delivery driver at the time and it was part of his route to drive along Findon Road and call in at number 344 on regular occasions and then proceed to other customers at Dillon Avenue. In cross-examination he agreed that as part of his duties he, from time to time, also drove into the driveway of number 338 Findon Road. He said that prior to the collision he had been at the premises of number 344 Findon Road. When leaving the property, he exited from the “out” driveway and turned left on to Findon Road. He travelled north along the western carriageway of Findon Road towards Dillon Avenue intending to turn right. He said that he proceeded unimpeded towards Dillon Avenue to the point where he was opposite the mouth of Dillon Avenue. He said that prior to reaching the junction, he activated his right-hand turning indicator. He said that he had to wait for oncoming south-bound traffic along Findon Road and that he was stationary for five to ten seconds prior to the collision occurring.
The plaintiff said that, after the collision, the defendant said that he was sorry and that he (the defendant) thought he had enough time (T16/20).
Police attended the scene and interviewed both drivers. The plaintiff described the accident to the police officer in much the same way as the evidence given by him at trial except that he described the exit point of the defendant’s vehicle as being a side-street rather than a driveway. It is apparent from the plaintiff’s evidence of the interview with the police officer that the police officer put to him that the driver of the other vehicle (the defendant) told the police officer that he had been stationary for five or ten seconds prior to the collision occurring. The plaintiff denied to the police officer that that was the case.
The police officer drew a rough sketch plan in his notebook, a copy of which is Exhibit P7. It includes within the drawing the premises of 344 Findon Road having an “in” only and “out” only driveway. At that point he has made the note “Stop clear - Turned left - Came up to Dillon - Indicator - Stopped”. The sketch plan also makes reference to the driveway for the premises number 338 Findon Road. The drawing includes a sketch of the junction of Dillon Avenue and Findon Road with various measurements having been paced out by the police officer. The sketch suggests to me that the police officer had been told by the defendant that he had pulled out of one of the driveways of 344 Findon Road, turned left on to Findon Road and proceeded towards the intersection of Dillon Avenue. That is consistent with the evidence that the defendant gave at trial. Similarly, someone, presumably the plaintiff, identified the driveway of number 338 as the point of exit on to Findon Road of the defendant.
It is apparent from the police officer’s plan and notes of the conversations that he had with the parties after the accident, that the plaintiff and the defendant gave to the police officer conflicting versions of the occurrence of the accident which are respectively consistent with the evidence that they gave at trial.
The accident occurred during the plaintiff’s working day and in the course of his duties. Exhibit D5 is a copy of a Vehicle Accident Report to the Workcover Corporation. The form was filled out on 1 August 1996. In the form the plaintiff drew a sketch indicating the position of the vehicles at the time of the collision. The sketch is not very accurate because it shows effectively both vehicles on the wrong side of the road and that has not been suggested by anybody as being the position of the two vehicles at the time when the collision occurred. However, it shows the position of the defendant’s vehicle as being roughly parallel with the centre line of Findon Road and the plaintiff’s vehicle is shown to be at an angle to the centre line of Findon Road such that the front right-hand corner of the plaintiff’s vehicle is in contact with the rear left-hand corner of the defendant’s vehicle. The plan also shows the path of the defendant’s vehicle prior to impact. It shows the defendant exiting from a private driveway on to Findon Road just south of the junction of the two roads. In that form the plaintiff said:
“I was travelling Nth along Rowells/Findon Rd when veh 2 pulled out of a private d/way on my left across the road and stopped to turn right into Rawlings Ave in front of my veh not giving me enough room to stop to avoid his veh.”
The fact that he has misdescribed Dillon Avenue as Rawlings Avenue does not seem to me to be of any significance.
A number of points may be made about the evidence:
1...... Both the plaintiff and the defendant gave consistent stories to the police officer and in evidence at trial.
2...... Each version is markedly different from the other.
3...... When the plaintiff gave his evidence he appeared to have a good recollection of events and presented his evidence without apparent exaggeration or reconstruction.
4...... The defendant showed little real recollection of the events of the day and much of what he said was based on the routine of his work day when covering deliveries along this particular route.
The defendant made an admission during the course of cross-examination that it was possible that he did drive out of the driveway of number 338 immediately prior to the collision rather than from the “out” driveway of 344. It was consistent with his acknowledgement that he was reconstructing much of what occurred from his knowledge of what he usually did along that particular route during the course of his duties. Significant reliance was placed by the plaintiff on this admission during cross-examination, but I do not think that it assists to the degree contended for by plaintiff’s counsel. It seems to me more important that on the day of the accident the police officer had been told by the defendant that the defendant had pulled out of the “out” driveway for number 344. This is the inference which I draw from Exhibit P7, although the defendant was unable to say in evidence whether he had mentioned the driveway for the premises of number 344 during the course of the police interview. It is clear that the defendant could not remember much of the events of that day whereas the plaintiff had a clear recollection. But the consistency of the defendant’s evidence is demonstrated by what he told the police as evidenced by page 52 of Exhibit D4, and the police officer’s sketch plan which is Exhibit P7.
I am thus faced with a situation where I have to decide between two conflicting versions of the accident, if that is possible, in order to make findings as to how the accident occurred. This is in the context that, because both drivers gave a version of the events to the police officer consistent with the evidence that they gave in Court, one of them, at the time of telling the police how the accident occurred, must have been giving a false version to the police officer. It follows that one of them must have been giving a false version of the accident in evidence at the trial.
The two versions of the events cannot be reconciled. The defendant places himself on the road well ahead of the plaintiff and stationary for five to ten seconds before the collision occurred. The plaintiff says that the defendant shot out in front of him, giving him no opportunity to avoid a collision. Each of them told essentially that story to the police officer. I cannot from my observation of the demeanour of the two witnesses determine which of them was telling the truth at trial. On the one hand, the plaintiff gave the appearance of being a truthful witness who was giving evidence of what he retained as a clear recollection of the events of the day. The defendant, on the other hand, was very uncertain about what occurred and there is no doubt that he reconstructed much of the evidence that he gave, although the reconstruction is largely consistent with what he obviously told the police officer at the time. Had it not been consistent with what was said to the police officer, the resolution of the factual dispute might have been more straightforward.
I am required to make findings, if it is possible, on the balance of probabilities. In arguing that I should accept the plaintiff’s evidence, counsel relied upon the position taken by the defendant when cross-examination was continued after the luncheon adjournment. Prior to the adjournment, the defendant stuck steadfastly to his story that the accident occurred in the manner stated by him in evidence. He was closely questioned about that version during the course of cross-examination and, after the luncheon adjournment, he appeared to move away from the unequivocal stance that he was on Findon Road well prior to the plaintiff reaching the junction of Findon Road and Dillon Avenue and that he had been stationary waiting to turn right for five to ten seconds. He even conceded that he may have exited from the driveway of number 338.
It is apparent that the defendant, a matter of a week or so prior to this accident, had been involved in another vehicle accident. In fact, the vehicle that he was driving on 15 July 1996 was a loan vehicle from the crash repairers. The defendant said that he could not remember anything of the circumstances of the prior accident and I find this part of his evidence to be surprising. I do not think the defendant was telling the truth when he said he could not remember the circumstances of the first accident. I suspect that because he had had two motor vehicle accidents within a week or so, when the second accident occurred, he felt he must explain himself in a manner which put the blame for the accident squarely on the plaintiff. He was almost, but not quite, able to continue that line during the trial. It seems to me that in those circumstances, and given the balanced way in which the plaintiff gave his evidence, I cannot rely upon the evidence of the defendant.
For these reasons I accept the version of the accident as given by the plaintiff. It was submitted by the defendant that, if I did accept the plaintiff’s version, there was still some element of contribution which should be the subject of a finding by me. I reject that contention. The defendant pulled out of a driveway at a point where the plaintiff’s view of the defendant was obscured by a van parked immediately to the south of the driveway. He did so at an excessive speed and pulled across the path of the plaintiff at a point where the defendant had no opportunity to avoid the collision.
It was submitted that the plaintiff’s evidence could not be accepted as accurate in relation to the distance between the plaintiff’s vehicle and the defendant’s vehicle when the plaintiff first saw the defendant. It may be that the plaintiff’s evidence in that regard, and the description of the accident in his solicitor’s correspondence may differ, but I do not find it necessary to make a finding as to the actual distance either on the balance of probabilities or otherwise. The finding that I make is that the defendant pulled out into the path of the plaintiff’s vehicle at a point where the distance between them was such that the plaintiff had no opportunity to avoid a collision and as such the defendant must bear the full responsibility for the occurrence of the collision.
I will hear counsel as to the entry of judgment and costs.

[2001] SADC 8

9 February 2001