Lyle Grant Bell as Executor of the Estate of the late Robin Frank Bell v Evans
[1999] WADC 114
•10 NOVEMBER 1999
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: LYLE GRANT BELL as Executor of the Estate of the late ROBIN FRANK BELL -v- EVANS [1999] WADC 114
CORAM: GROVES DCJ
HEARD: 25 OCTOBER 1999
DELIVERED : 10 NOVEMBER 1999
FILE NO/S: CIV 4435 of 1998
BETWEEN: LYLE GRANT BELL as Executor of the Estate of the late ROBIN FRANK BELL
Plaintiff
AND
SHANE EVANS
Defendant
Catchwords:
Motor vehicles - Damages for negligence - Dual lane carriageway - Truck changing lanes into path of another truck alongside - Turns on own facts.
Legislation:
Supreme Court Act, as amended s32
Result:
Judgment for the plaintiff in the sum of $77,434.77 together with interest at the rate of 6 per cent per annum from 3 July 1997 to date of judgment.
Representation:
Counsel:
Plaintiff: Mr G Porter
Defendant: Mr A C Thorpe
Solicitors:
Plaintiff: Talbot & Olivier
Defendant: A C Thorpe
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
GROVES DCJ:
The plaintiff's claim
The plaintiff is the Executor of the estate of the late Robin Frank Bell (Bell) who was at all material times the hirer of a Kenworth 1989 truck (Bell's truck) pursuant to a hire purchase agreement. Bell carried on business as a cartage contractor.
On 3 July 1997 Bell's truck was being driven by Neil Brian Sharpley (Sharpley) in a north‑easterly direction along William Street at Beckenham when it came into collision with a Kenworth semi‑tipper (the defendant's truck) driven by the defendant. Bell's truck sustained damage and Bell suffered loss as a consequence of the accident. The plaintiff contends that the damage to Bell's truck was caused solely by the negligence of the defendant in that the defendant suddenly and without warning veered into the path of Bell's truck thereby causing the collision.
The defendant denies that he was negligent and denies that the plaintiff has suffered loss or damage.
Sharpley's evidence
Sharpley has been a truck driver for some 17 years. His experience includes driving semi‑trailers and road trains both intrastate and on the east/west interstate route. He had known Bell since about 1984 and for about 2 weeks prior to the accident had been driving Bell's truck by way of help to Bell who had been diagnosed with cancer. He was making three to four trips per day from the CSBP plant at Kwinana to CSBP's facility at Bayswater.
At approximately 3.00pm on 3 July 1997 he was travelling along William Street at Beckenham fully laden. Bell's truck was described as a Kenworth, 6 wheel 5 axle dog and when fully laden weighed approximately 65 tonne.
William Street runs in approximately a south west to north easterly direction between Albany Highway and Welshpool Road. Whilst it is a 4 lane carriageway it was described as a suburban feeder road. It has two lanes travelling in each direction with a double white line down the middle of the road and each lane divided by a broken white line. Sharpley described the kerbside lane as having a rough and uneven surface interspersed with a number of water run‑off drains along the way. By reason of this he preferred to drive along William Street in the lane nearest to the double white line (the centre lane).
At the same time as aforesaid the defendant's truck was proceeding along William Street in the same direction but in the kerbside lane. The speed limit in the area is 60km/h which was the speed which Sharpley estimated he was travelling immediately prior to the accident. Sharpley was proceeding to overtake the defendant's truck. He estimated that the front of his cab had drawn about one third of the way alongside the defendant's trailer or some 2‑3m beyond the line of the defendant's tailgate. When he was at that point he saw the defendant's truck veer over into his lane into the path of his vehicle. The consequence was that the front left corner of his prime mover was impacted by the right rear side of the defendant's trailer.
It was Sharpley's evidence that there was no indication or warning given by the defendant of his intention to move his truck into the path of Bell's truck. The impact caused the left side windscreen to cave in, the aluminium and fibreglass body work at the front left and left door side to be severely damaged and the air lines ripped out. Sharpley did not recall whether or not he had time to hit the brakes. As a consequence of the air lines being ripped out the air brakes came on immediately. After impact Bell's truck went across the double white line onto the other side of the road before coming to a standstill. Fortunately there was no oncoming traffic at that moment.
Sharpley did not lose consciousness but was shaken by the accident. He observed that the defendant's truck proceeded on its way and did not return to the scene of the accident.
Police and ambulance were summoned. Sharpley was conveyed by ambulance to the Swan Districts Hospital. Whilst he was waiting to be attended to by a doctor police arrived and took a statement from him. Insofar as it is relevant he stated:
"I was travelling north…at approx 60kmph in the right hand lane.
I was about to overtake a Kenworth semi‑tipper which was travelling north in the left hand lane when the front of my truck came in contact with the rear right hand side of the Kenworth's trailer. This forced my truck onto the right hand side of the road facing oncoming traffic. The Kenworth truck in the left hand lane continued on and failed to stop."
The statement was signed by Sharpley at approximately 5.30pm on the day of the accident. Although the statement did not make mention of the defendant's truck veering or cutting across in front of him it is consistent with his evidence so far as the relative positions of the trucks is concerned.
It was Sharpley's evidence that there was no action which he could have taken to avoid the impact. The defendant's truck came across in front of him and without there being any time for him to do anything to avoid the impact. Given the relative position of the trucks on his evidence, it is unlikely that Sharpley would have been in a position to observe either indicators or brake lights on the rear of the defendant's truck had there been any indication by the defendant that he was intending to move across into the centre lane.
Photographs taken the next day were tendered. They indicate the location and severity of the impact to the front left and left side of the cab of Bell's truck.
The witness' evidence
Lee Andrew Howarth is 30 years of age and employed as a crane driver/yardman for Haulmore Trailers. He has been in and around vehicles all his life. He has been employed as a truck driver and his pastimes include rallying and motor vehicle racing.
On the day in question he was proceeding in the same direction along William Street, Beckenham, as the trucks. He had overtaken both trucks along William Street before proceeding into the kerbside lane. It was his intention to make a left hand turn from William Street into Luyer Avenue. Approximately 80‑100m from the corner he indicated his intention to make the left hand turn. It was his evidence that he indicated well before the corner because he had a "truck up my backside" being, he estimated, 5‑6m behind him. Having been a truck driver himself he was concerned to ensure that the truck driver had ample warning that he was intending to turn. After indicating it did not appear to Mr Howarth that the truck was slowing behind him. His evidence was that the truck was "sticking with me". Before making his left hand turn he observed in his external rear vision mirror one truck travelling in the centre lane and coming up alongside but just behind the truck in the kerbside lane.
The proximity of the truck directly behind him caused Mr Howarth to take the corner into Luyer Avenue "quickly" or at a speed faster than he might normally have done. Upon turning into Luyer Avenue he heard a loud bang. He looked back and saw glass and debris trailing up William Street and the truck which had been behind him continuing on up the road. Mr Howarth stopped his vehicle and went back and saw that the truck which had been in the centre lane (Bell's truck) had become stationary on the south bound lanes and that the other truck (the defendant's truck) had proceeded on up William Street. He went over to Bell's truck to ascertain if the driver was injured. He remained at the scene for about an hour.
Some time after the accident the insurer of Bell's truck sought a statement from Mr Howarth regarding his knowledge of the circumstances of the accident. In that statement he did not make reference to the truck being close behind him. More recently he had signed an affidavit in which he referred to the truck as being "directly behind my vehicle" which he explained by saying that the reference was to the truck 5‑6 metres behind him. That is what he meant by "directly behind". He was concerned that in approaching the intersection and making his turn into Luyer Avenue that he didn't want his car smashed up by being hit up the rear by the truck. In his own words in cross‑examination he stated "…I had to take the corner quite quickly…because I had a truck barrelling down on top of me."
He was also pressed in cross‑examination regarding the position of Bell's truck. Prior to turning he maintained that he checked his rear view mirror in which he saw the truck directly behind him and his side mirror in which he could see another truck in the "right hand" (centre) "lane". He estimated that the second truck (Bell's truck) was about a cab length behind the rear of the truck behind him although he could not be "one hundred per cent certain as to the exact position one to the other".
The defendant's evidence
Shane Evans is 28 years of age and in 1997 was a self‑employed truck driver carting gravel, blue metal and sand supplies. He had a Kenworth cab over prime mover and 8/9m tip trailer. On 3 July 1997 he was proceeding from Nicholson Road at Canning Vale. He was carting garden mulch and his all up weight was approximately 10 tonnes.
After entering into William Street Bell's truck was in the kerbside lane and he was in the centre lane. He proceeded to overtake the plaintiff's truck and when it was safe to do so he moved into the kerbside lane. He was travelling at about 35‑50km/h. He proceeded over the railway line which crosses William Street and continued on in the left lane. He was aware of a white Kingswood Station Wagon in the kerbside lane which he estimated was about 75m ahead of him. He observed that vehicle to indicate a left turn whereupon he slowed down easily using the foot brake. The vehicle proceeded to make a left turn into Luyer Avenue and his foot was off the brake and he was about to accelerate again when he felt an impact from behind. He looked into his right side mirror and saw that a truck had run into him. In that brief look he could only see half the cab. There was nowhere that he could immediately pull off the road and he proceeded on for approximately 800m where he was able to pull off onto a grass verge. He checked his truck for damage and observed glass and debris on the tail gate of his trailer and also found that his right hand rear outer tyre had blown out. He could not turn his truck around in that location and he did not walk back to the scene of the impact. He was not aware as to what had happened to the other truck.
From his truck he telephoned Hazelmere Haulage where he had seen the other truck some days beforehand. Through them he endeavoured to contact the owner of the truck but without immediate success. He then proceeded to drive to Midland where he had the damaged tyre changed and then proceeded to drive home to Northam.
Despite there being glass and debris on the tailgate of his truck he didn't walk back to the scene because, as he said, he didn't know how severe the impact was and because there wasn't a lot of damage to his vehicle and he did not consider that he had been in the wrong in any way. It was his evidence that the plaintiff's truck was directly behind him prior to the accident. When pressed in cross‑examination however he acknowledged that he had presumed that the plaintiff's truck was in the kerb lane but could not say in fact what position on the road the plaintiff's truck was travelling immediately prior to the impact.
Findings on the evidence
1.Prior to the impact the the defendant was travelling in the kerbside lane and was unaware as to the position of Bell's truck on William Street.
2.Bell's truck was in the centre lane and overtaking the defendant's truck immediately prior to the impact. Sharpley's evidence was confirmed by the evidence of the independent witness Howarth.
3.The defendant was travelling in close proximity immediately behind Howarth's vehicle. Howarth indicated 80‑100m prior to Luyer Avenue his intention to turn left. Notwithstanding his indication the defendant continued to travel in close proximity to the rear of Howarth's vehicle. This caused Howarth to take the corner faster than he normally would. I accept Howarth's evidence on this issue. I do not accept Evan's evidence that he was 75m behind Howarth's vehicle when the latter indicated to turn left. To the extent that his evidence conflicts with that of Howarth I prefer the evidence of Howarth. Furthermore if Evans was travelling at that distance behind and at the speed he indicated then it is unlikely that he needed to slow down as he contended.
4.Without being aware of the presence of any vehicle which may have been alongside or immediately to the rear but in the centre lane the defendant moved his vehicle into the path of the truck being driven by Sharpley. I accept without reservation the evidence of Sharpley on this point.
5.The front left of Bell's truck was impacted upon by the right rear side of the defendant's trailer in the area of the rear wheels and behind towards the tailgate of the trailer. That finding is consistent with the evidence of Sharpley, the damage to Bell's truck as evidenced by the photographs and the fact that the defendant's right rear outer tyre had blown out due to the impact. There is no other explanation as to how the defendant's tyre was damaged.
In the circumstances therefore I am satisfied to the requisite standard that the damage occasioned to Bell's truck was caused as a result of the negligent driving of the defendant.
Claim for damages
Three areas of loss and damage were claimed.
(a)Repair expenses to Bell's truck.
Repair costs totalled $55,640.77. This sum was agreed and will therefore be allowed.
(b)Towing expenses.
Costs of $358 were incurred and this amount has been agreed and will therefore be allowed.
(c)Loss of income as a consequence of the truck being off the road for repairs for a period of 4 months.
In support of the loss of income the plaintiff called John Allan Stott, a certified practising accountant with the firm Metcalf Spahn. Bell had commenced as a sole operator of the trucking business on or about 27 May 1997. Prior to that he had conducted a trucking business in partnership with another person. The firm of Metcalf Spahn had been the accountants for the partnership and for Bell for some years prior to the accident. Since he has been with the firm Mr Stott has been involved with the preparation of the financial records both for Bell and his estate and also for the trucking business of the other partner which has continued since the earlier partnership was dissolved.
The accident occurred only 5 weeks after Bell commenced as a sole operator. Thus there was only one complete month of trading prior to the accident. In October 1997 Bell hired a truck and employed a driver to undertake his contract work. To get an estimate of the gross income lost through the non‑availability of Bell's truck during the months of July, August, September and October 1997 due to the accident Mr Stott averaged the gross income for the months of June and November 1997.
June 1997 $16,307.45
November 1997 $12,047.50
Average gross income $14,208.98
Because Bell's truck was unavailable there were savings on running costs and Mr Stott estimated net income lost calculated as follows:
Estimated gross income lost $14,209.00
Less: Estimated running costs saved ‑
Fuel ($4,550.00)
Repairs and tyres ($2,200.00)
Wages ($1,200.00)
Other variable costs ($100.00)
Total ($8,050.00)
Estimated net loss $6,159.00
Mr Stott readily conceded that this was a rough estimate and based on scant information insofar as Bell's income as a sole operator of the trucking business was concerned. However by reason of his knowledge of the prior income of the partnership and the income of the other partner since the partnership was dissolved he regarded the gross income for June which was in excess of $4000 per week as not an unrealistic figure. Furthermore on the basis of that knowledge he did not consider that the estimated net loss of $6159 per month was unrealistic.
In his calculation Mr Stott allowed $276 per week for wages. It was Sharpley's evidence that although he was not paid for driving for Bell prior to the accident he did expect that he would ultimately have been paid $100 per day for a 5 day week. That would equate to $500 per week. On that basis I propose that the estimated net loss be reduced by $800 reflecting the difference between Sharpley's expectations and Mr Stott's amount allowed for wages.
The estimated net loss is reduced to $5359 per month which for 4 months totals $21,436 which sum I allow.
Judgment
There will be judgment for the plaintiff in the sum of $77,434.77 together with interest on that sum at the rate of 6 per cent per annum pursuant to s32 of the Supreme Court Act as amended from 3 July 1997 until the date of this judgment.
These reasons will be delivered to the parties' solicitors and I will receive a minute of judgment.
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