Lang v Bannister

[2001] TASSC 56

[2001] TASSC 56

CITATION:                 Lang v Bannister [2001] TASSC 56

PARTIES:  LANG, Michelle Wendy
  v
  BANNISTER, Neville Ross

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1369/1998
DELIVERED ON:  15 May 2001
DELIVERED AT:  Hobart
HEARING DATES:  9, 10 May 2001
JUDGMENT OF:  Blow J

CATCHWORDS:

REPRESENTATION:

Counsel:
             Plaintiff:  C W Law
             Defendant:  G L Sealy
Solicitors:
             Plaintiff:  Page Seager
             Defendant:  Piggott Wood & Baker

Judgment Number:  [2001] TASSC 56
Number of Paragraphs:  15

Serial No 56/2001
File No 1369/1998

MICHELLE WENDY LANG v NEVILLE ROSS BANNISTER

REASONS FOR JUDGMENT  BLOW J

15 May 2001

1. This is an action for damages for negligence in respect of personal injuries suffered by the plaintiff in a motor vehicle collision on Friday 13 February 1998.  The Master made an order on 31 July 2000 that the issue of liability be tried separately, and before the issue of quantum.  It is common ground that the plaintiff was injured as a result of the collision. 

1. At about 1.45pm on the day in question, the plaintiff was driving her Pajero four wheel drive vehicle in a generally southerly direction along Main Road, Glenorchy, looking for a parking spot, and intending to do some banking.  The defendant was driving his Commodore sedan at some distance behind her, intending to park in a car park at Glenorchy, and also to do some banking.  After crossing the intersection prior to the site of the collision, the plaintiff reduced the speed of her vehicle, apparently because she hoped to find a parking spot in the main road.  She found one, and decided to stop and reverse into it. 

1. Her evidence was that she activated her left flashing indicator lights, saw the defendant's vehicle some distance behind her, believed that she had ample time to reverse into the parking spot before it reached her, commenced to reverse, felt a jolt, and realised that there had been a collision between the two vehicles.  She conceded that she did not see the defendant's vehicle from the time she commenced to reverse until after the impact.  She said that the defendant's vehicle came to rest pointing slightly to its right.  There was damage to the right corner of her Pajero's rear bumper bar, and to the front left headlight area of the defendant's Commodore.

1. The plaintiff's evidence was corroborated in part by an independent witness, Mr Lewis.  He had been lunching at a table on the footpath very close to the point of impact.  He said that he saw the Pajero commence to reverse, looked away, heard the sound of the Commodore braking and colliding with the Pajero, and then saw the two vehicles had collided.  He also said that the Commodore was pointing slightly towards the right after the collision.  The plaintiff did not claim to have heard any sound associated with the Commodore braking, but that could be explained by the braking noises having been less audible to her when she was inside her vehicle. 

1. The defendant had quite a different versions of events.  He said that he had been travelling behind the plaintiff's vehicle for some time, and that he was getting closer to it after it crossed the intersection previous to the accident site.  He said that he saw the Pajero stop, did not know why it had stopped, and stopped behind it, whereupon the plaintiff reversed towards the parking spot and collided with his vehicle.  He said that the plaintiff's indicator was not on.  He denied having swerved to his right.

1. A mechanical engineer, Mr Durbin, was called to give evidence for the defendant.  The plaintiff had said in answer to an interrogatory that the defendant's speed at the time of the impact was about 20 to 25 kilometres per hour, but at the trial, far from repeating that assertion, she conceded that she was unaware of his speed at the time of impact, and could not even say whether his vehicle had stopped before impact.  For the purpose of debunking the assertion made in the answer to the interrogatory, Mr Durbin had undertaken some calculations which established that the forces generated, if the Commodore had been travelling at 20 to 25 kilometres per hour and the Pajero reversing at 5 kilometres per hour, would have been out of all proportion to the damage to the vehicles.  As the plaintiff's case had not developed as anticipated, those calculations were of no great significance.  However, Mr Durbin expressed two opinions of greater significance: (i) that, at the time of impact, if the defendant's Commodore was parallel to the kerb, the plaintiff's Pajero was pointing at an angle of at least 26 degrees to the right of the kerb; (ii) that, if the defendant had been swerving to his right at the time of impact, and thus travelling in an arc rather than a straight line, the damage to the vehicles would have been greater than that depicted in the photographs of them. 

1. The road where this collision occurred is the main road of a Hobart suburb.  It contains quite a number of banks, shops and other businesses.  This collision occurred at lunch time on a Friday.  That is no doubt one of the busiest times of the week for traffic using that road.  Parking on the street is permitted.  There was only one lane available for southbound traffic.  The defendant had observed that he was getting closer to the plaintiff's vehicle.  Obviously this was because she had slowed down.  In those circumstances, it must have been reasonably foreseeable on the part of a driver in the defendant's position that the plaintiff might have slowed down to look for a parking spot.  In my view the duty of care of a motorist in the defendant's situation required him to be alert to the possibility that the driver of the car in front might wish to reverse into a parking spot, and also to travel slowly enough, and far enough back from the vehicle in front, to be able to slow down, and stop if necessary, so as to permit the vehicle in front to reverse into a parking spot, and to avoid any risk of a collision in the course of reverse parking.  But the defendant did not see the parking spot before the plaintiff stopped.  He did not understand why she had stopped.  On any version of events, he drove so close to the plaintiff's vehicle that it was possible for a collision to occur in the course of her reverse parking.  I think it follows that the defendant breached his duty of care in that he failed to keep a proper lookout, and drove too close to the plaintiff's vehicle.  I find that the collision resulted, at least in part, from his negligence in these respects.

1. Mr Sealy submitted that the defendant's duty of care did not require him to keep his vehicle clear of the course that the plaintiff might take in reverse parking unless she had activated her flashing indicator light to give a warning of her intention to reverse park.  He asked me to accept the defendant's evidence that the indicator was not flashing.  But I think the issue as to whether the indicator was flashing goes only to the degree of the defendant's negligence.  Even if the indicator was not flashing, I think it was reasonably foreseeable from the time the plaintiff started slowing down that she might undertake a reverse parking manoeuvre, and that the defendant's duty of care thereafter was as I have described. It follows that there should be judgment for the plaintiff against the defendant

1. I turn to the more difficult question of contributory negligence.  Although the defendant's evidence conflicted with that of the plaintiff and Mr Lewis, I do not think any of those witnesses was in any way dishonest.  People often have inaccurate perceptions or recollections after a motor vehicle collision.  The discrepancies in this case fall well within the scope of that phenomenon, in my view.  But I found the defendant an unimpressive witness.  In his evidence-in-chief, when asked what he thought when he saw the Pajero's brake lights come on, he said he was not sure whether there was a car pulled up in front of the plaintiff.  Later, under cross-examination, he said a couple of times that there were no other cars in front of her.  I certainly do not have complete faith in the accuracy of the plaintiff's evidence either, particularly since her answer to the interrogatory about the defendant's speed at the time of impact should not have been given, and has been demonstrated to be wrong.

1. I do not accept the defendant's evidence that the plaintiff's indicator was not flashing.  He and she both gave evidence that, immediately after the collision, she approached him, and asked, "Didn't you see my indicator?", to which he replied, "No, you didn't have your indicator on".  Thereupon she rang the police.  The defendant was insufficiently observant at the relevant time, and might well not have noticed a flashing indicator.  I have serious reservations about the accuracy of his recollections.  Plainly the plaintiff was very confident, immediately after the collision, that her indicator had been on.  There is a small chance that she was wrong about that, and that her perceptions had been affected by the upsetting collision, but in all the circumstances I am not satisfied on the balance of probabilities that her indicator was not flashing.

1. The plaintiff and Mr Lewis both gave evidence that the defendant's Commodore ended up pointing slightly to the right.  That evidence, if correct, would suggest that the defendant swerved slightly at the last moment, in an unsuccessful attempt to avoid a collision.  The defendant denied that he swerved, and said that his vehicle remained behind the plaintiff's vehicle, whereas she said its front was slightly forward of her rear bumper.  The vehicles were moved before the police arrived, apparently at the request of a police officer who did not want the road to be blocked.  Mr Durbin's investigations and calculations led him to the conclusion that the plaintiff's version as to the final relative positions of the vehicles was implausible.  In his view, the plaintiff's vehicle was pointing no less than 26 degrees to the right of the defendant's line of travel at the moment of impact, and, in the space available, the defendant's vehicle could not have begun to pass the plaintiff's vehicle without substantially greater damage to both vehicles. 

1. Mr Law submitted that Mr Durbin's opinions were based on incorrect or unsubstantiated assumptions.  He had assumed that the defendant's Commodore had standard tyres, when in fact it had mag wheels.  For all I know, this might have invalidated an assumption made by Mr Durbin as to tyre slip angles that he relied upon in estimating the minimum turning radius of the Commodore.  If, as I suspect, mag wheels are of greater diameter than wheels fitted with standard tyres, this might also have invalidated an assumption by Mr Durbin that the damage to the Pajero's bumper was level with the Commodore's bonnet and caused by it.  Mr Durbin had not seen the defendant's Commodore, but only photographs of it.  He based his calculations in part on measurements that he made of a Commodore of a similar vintage owned by a friend.  It might have been a different model.  Mr Durbin had not made any allowance for the possibility that, as a result of the impact, the reversing Pajero travelled forward again.  That was a possibility, particularly since the plaintiff said she felt "a fair jolt".  If it did travel forward again, I think it must follow that the further forward it travelled, the more likely it is that the Commodore could have commenced to pass it, particularly if the defendant's steering wheel was turned to the right and/or the plaintiff's steering wheel turned to the left.  Mr Durbin inspected the scene and drew a plan which showed parking bays marked on the roadway, but the plaintiff gave evidence to the effect that there were no such markings at the relevant time.  It may be that some of the measurements taken by Mr Durbin varied a little from the equivalent measurements in February 1998. 

1. Taking all these matters into account, I am left in doubt as to whether the defendant swerved to his right, and as to whether his vehicle came to rest with its front slightly forward of the plaintiff's bumper bar.  I do not have sufficient confidence in Mr Durbin's conclusions, or the reliability of the evidence of the defendant, for me to prefer their evidence and reject the conflicting evidence of the plaintiff and Mr Lewis.

1. I do not think the plaintiff was negligent in failing to observe the defendant's vehicle between the commencement of the reverse parking manoeuvre and the collision.  She needed to watch the parked car on her left in order to avoid a collision with it.  She needed to watch towards the parking spot in order to make judgments as to the turning of her steering wheel.  I think it would be unreasonable to expect her to have kept the defendant's vehicle under observation as well during the seconds that her vehicle was reversing. 

1. No doubt she made an error of judgment as to the defendant's speed.  I accept that she thought that she had sufficient time to reverse into the parking spot safely before the defendant's vehicle arrived, and that she was wrong about that.  There are times when a driver in the plaintiff's situation should not attempt a reverse park because the speed and position of a following vehicle would make such a manoeuvre too risky.  But the small amount of damage in this case, and the obvious fact that it was a low-speed collision, suggests to me that the plaintiff's judgment that she had time to reverse park safely was very close to being correct.  I am therefore not satisfied that she was negligent in attempting to reverse into the parking space in all the circumstances.

1. The defendant bears the onus of establishing on the balance of probabilities that there was contributory negligence on the part of the plaintiff: Williams v Commissioner of Road Transport and Tramways (NSW) (1933) 50 CLR 258. He has not discharged that onus. There will therefore be judgment for the plaintiff for damages to be assessed, without any reduction for contributory negligence.