Matthews v Bland
[2006] WADC 78
•25 May 2006
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MATTHEWS -v- BLAND [2006] WADC 78
CORAM: WILLIAMS DCJ
HEARD: 15 MAY 2006
DELIVERED : 25 MAY 2006
FILE NO/S: CIV 2174 of 2005
BETWEEN: PATRICK IVAN MATTHEWS
Plaintiff
AND
LIAM ALEXANDER BLAND
Defendant
Catchwords:
Torts - Negligence - Collision at T junction between motor cycle and motor car
Legislation:
Nil
Result:
Defendant liable to plaintiff for 100 per cent of his damages to be assessed
Representation:
Counsel:
Plaintiff: Mr K Pratt
Defendant: Mr P Momber
Solicitors:
Plaintiff: Rando Solicitors
Defendant: Peter Momber
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
WILLIAMS DCJ:
Introduction
At about 1.00 pm on 2 May 2003 the plaintiff was riding a Yamaha 250cc motor cycle in a north westerly direction in Mooney Street, Bayswater intending to make a right hand turn into Rio Street which intersects Mooney Street with a "T" junction.
The plaintiff alleges that as he commenced the right hand turn a blue Ford Fairmont being driven by the defendant turned right from Rio Street into Mooney Street and collided with the plaintiff's motor cycle causing the plaintiff and the motor cycle to fall to the ground.
The defendant says that he was stationary at the intersection when the plaintiff rode his motor cycle into the defendant's stationary vehicle.
I am required to determine the issue of liability.
The evidence
Both the plaintiff and the defendant worked in the immediate vicinity of the accident. The plaintiff worked as a machinist for Repco which is situated on the southwest side of Mooney Street approximately 30 metres southeast of the "T" junction. The defendant was a steel manager and worked at premises on the southeast side of Rio Street approximately 50 metres from the "T" junction. Neither party was in a hurry, the plaintiff was going home and the defendant was going to a lunch bar to purchase lunch. The weather was fine and the road was dry.
According to the plaintiff he came out of the driveway from Repco into Mooney Street and turned left. He was wearing a helmet and his headlight was on. He travelled northwest along Mooney Street intending to make a right hand turn into Rio Street. He went from first to second gear and estimated his speed at 20-25 kilometres per hour. He noted a blue vehicle travelling from Rio Street to Mooney Street. He assumed that the vehicle was going to slow down and stop. As he started to make the turn he realised the vehicle was not going to stop. The vehicle's front driver's side at headlight level struck the plaintiff and his motor cycle on the right hand side. The plaintiff went over the handlebars of the motor cycle and ended up on the road with the motor cycle on top of his legs. The plaintiff was taken to hospital by ambulance.
In cross-examination the plaintiff stated that just before he turned right he had momentarily glanced to his left as he thought that he had heard another vehicle. He denied that his motor cycle had cut the corner and stated that he was turning into the left hand side of Rio Street.
On 6 May 2003 he was interviewed by Senior Constable Burgess who took a statement from the plaintiff. Included in the statement is the following;
"I then thought I heard another car on my left side. By that stage I was in the middle of the road. I glanced to the left only momentarily but there was nothing there. When I looked forward again the blue car was right on me."
According to the defendant he drove out of his driveway turned left and drove in a southwest direction along Rio Street. He was approximately 1½ metres from the kerb and reached a speed of about 20 kilometres per hour.
He drove up to the intersection and stopped. He looked left and saw a motor cycle heading towards him. It was about three metres to the left of his vehicle. He heard the plaintiff scream out and then hit his vehicle. The motor cycle hit his vehicle two feet to the right of centre and fell over with the rider on the ground. He described his vehicle as stationary "for a second or two". He stated that it was necessary to stop at the intersection because trees obstructed the view to the left and it is necessary to get right to the intersection. He did not move his vehicle after the collision.
In a statement made to Senior Constable Burgess at the scene of the accident the plaintiff said:
"I just stopped momentarily while I looked up and down Mooney Street. There were no vehicles moving on Mooney Street, and when I was just about to move off and that's when I noticed a motor cycle on Mooney Street on my left side making a right hand turn into Rio Street. As the motor cycle turned the motor cycle clipped the front right corner of my car."
Senior Constable Burgess attended the scene. He made a diagram of the position of the motor vehicle in his notebook. A photocopy of the notebook diagram became exhibit 7. He stated that he had drawn the position of the motor vehicle on the road. He had it in Rio Street abutting Mooney Street. Just in front of the vehicle he had drawn gouge marks. The motor cycle had been moved. He had drawn an imaginary line between the two kerbs of Mooney Street to indicate that the gouge marks were in Mooney Street. He had depicted the motor vehicle on a slight angle to Mooney Street.
In my view the notebook shows the defendant's vehicle at the very limit of Rio Street and considerably more than half way across Rio Street.
Findings of fact
The plaintiff has been consistent in his story in that his evidence in court accords with what he had said to Senior Constable Burgess. It is the defendant's submission that the plaintiff drew a diagram placing the defendant's vehicle on the correct side of Rio Street on two occasions (exhibit 4). That is correct but the plaintiff said that the positions were only approximate and he clearly places the collision at more than half way across Rio Street. In fact it accords with what Senior Constable Burgess drew in his sketch book (exhibit 1).
The defendant says the plaintiff stated that he was not certain the defendant was going to stop. What the plaintiff says is that he "may have had a suspicion that he (the defendant) was going to travel out into the intersection". In my view that only indicates that at some stage when it was too late to alter the course of events the plaintiff became aware that the defendant was not going to stop.
The defendant said in evidence that he drove up to the intersection and stopped. He looked left and saw the motor cycle heading towards him. It was about three metres to the left of his vehicle. In his statement to the police he said he just stopped momentarily while he looked up and down Mooney Street and when he was just about to move off he noticed the motor cycle. In my view those statements are different and the defendant is uncertain of exactly what occurred.
I prefer the evidence of the plaintiff that the defendant's vehicle did not stop. That is also supported by Senior Constable Burgess's evidence. That shows the defendants vehicle at the very limit of Rio Street and cutting the corner to a considerable degree for a right hand turn into Mooney Street. The fact that the point of impact was to the right front of the defendant's vehicle indicates that the plaintiff was turning into the correct side of Rio Street and not cutting the corner. The fact that the gouge marks are in Mooney Street also supports the plaintiff's version.
Neither party relied on any breaches of the Road Traffic Act1974 or the Regulations made under the Act either in the pleadings or in submissions by counsel. However, in my view the defendant's failure to stop at the "T" junction amounts to negligence and I find the defendant negligent.
Contributory Negligence
The defendant's submission is that even if the defendant didn't stop or stopped and took off again that the plaintiff was still substantially responsible for the accident. I reject that submission. The only evidence of any possible want of care on the part of the plaintiff is that he looked left as he was approaching the intersection. His evidence was that he glanced momentarily because he heard a noise. In my view that was entirely reasonable and does not demonstrate any want of care. In my view there has been no contributory negligence on the part of the plaintiff.
Conclusion
The defendant is liable to the plaintiff in respect to 100 per cent of his damages to be assessed.
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