Morrissey v Lackey

[2008] NSWDC 78

CITATION:	Morrissey v Lackey [2008] NSWDC 78
HEARING DATE(S):	12-13 March 2008
JUDGMENT DATE:	24 April 2008
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. Verdict for the defendant. 2. The plaintiff is to pay the defendant’s costs of the proceedings. 3. The exhibits are returned.
CATCHWORDS:	MVA - Liability - cyclist affected by alcohol - adequacy of illumination of lighting - opportunity for driver to take evasive action - contributory negligence
PARTIES:	Noel Eric Morrissey (Plaintiff) Janice Maree Lackey (Defendant)
FILE NUMBER(S):	Newcastle 82/07
COUNSEL:	P J Kirby (Plaintiff) P R Cummings (Defendant)
SOLICITORS:	O'Sullivan & Saddington (Plaintiff) Moray & Agnew - Newcastle (Defendant)

JUDGMENT

1 Noel Eric Morrissey was struck by a car driven by Janice Maree Lackey. He suffered a serious fracture to his right leg. The parties are agreed on the compensation to be paid to the plaintiff if the defendant is found liable, subject to any deduction for contributory negligence.

2 In issue in the proceedings were the questions of whether the defendant negligently drove the car and whether there was any contributory negligence on the part of the plaintiff and, if so, its extent.

ISSUE 1 - LIABILITY

3 The plaintiff was riding his bicycle east on Cormorant Drive, Kooragang Island at 2am on 2 October 2005. The bicycle was pulling a box trailer, described as one foot six high and two feet wide, in which the plaintiff had placed an Esky containing ice, soft drinks and frozen vegetables. The sides of the trailer were made of metal mesh.

4 The defendant was driving her three or four year old Holden Commodore also in an easterly direction on Cormorant Drive when she ran into the bicycle and its trailer. There was no issue that the bicycle and the vehicle were in good order and neither was defective. The speed limit on the road was 80 kilometres an hour. It was a straight section of road. There were no street lights and there was no moonlight.

5 A test of blood sample taken from the plaintiff at 2.45am indicated his blood alcohol content to be 0.177 grams of alcohol per 100 millilitres.

6 To determine the liability issue, it is necessary to make findings concerning the lighting on the bicycle; the trailer or the plaintiff’s crash helmet; the plaintiff’s position on the road immediately prior to impact; and whether, in the circumstances the defendant ought to have seen the plaintiff in sufficient time to bring the car to a halt or to take evasive action to avoid impact.

Lighting

7 The plaintiff acknowledged that there was no rear light on the bicycle itself. He said a light had been attached twice but had been snapped off. He decided, therefore, to place a light on the rear of his crash helmet. He said it was held in place by an elastic strap wrapped around the light and an air vent in the helmet. Gaffer tape was used to hold the light to the strap. The plaintiff said the battery had been replaced one month prior to the accident. The plaintiff described his practice of turning on the light before putting on the helmet to ensure that it was flashing. He said he did so on this occasion.

8 He set off from the Carrington home of his sister, Karen Darnell, whom he visited after leaving the Criterion Hotel at Carrington. Ms Darnell said she noticed that the plaintiff switched on the light on the rear of the helmet after he had placed the helmet on his head. She confirmed, however, that the light was switched on and flashing at the time he left her home.

9 In addition to this light, the plaintiff said he had a light on the front of the bicycle that was switched on at the time of the accident. There were reflectors on the spokes of the wheels of the bicycle and reflectors on the pedals. There was a length of reflector tape on the rear of the trailer about one inch high by about three inches in length. The plaintiff was wearing dark non-reflective clothing.

10 The plaintiff said that the light on the rear of his helmet was broken off in the course of the accident and he has never seen it since. After the accident, the strap was in place but the light was gone.

11 The defendant said that she saw no light or reflector on the bicycle and she was emphatic that there had been no light on the helmet.

12 A passenger in the defendant’s car, Mr Cosandey, said that the plaintiff told him after the accident that the reflector on the back of his helmet was not working and that he meant to get it fixed. The plaintiff denied this conversation. Mr Cosandey said that he saw no flashing red light on the rear of the helmet. Mr Cosandey also said that the plaintiff told him that he had not fixed the lights on the bicycle and that he should have done so and that he meant to fix them.

13 Mr Koller was driving his car west on Cormorant Drive and passed the plaintiff and his bicycle. He said he looked in his rear vision mirror after passing the plaintiff and saw no light on the rear of the bicycle or on the helmet. He said he had seen a very faint blue light on the front of the bicycle. A statement of Police Constable Price who was called to the scene after the accident indicated that he had located a small red reflector light and that on inspection, it was not working at that point.

14 On this issue, my findings are as follows.

1. The reflectors on the wheels of the plaintiff’s bicycle would not have been apparent to the defendant.

2. The reflectors on the pedals were most probably obscured by the Esky placed in the trailer.

3. The reflecting tape on the trailer, by any standard, was so small as to provide little indication of its presence or that of the bicycle to which it was attached.

4. The evidence of the plaintiff and his sister suggested that there was, in fact, a light on the plaintiff’s crash helmet and that it was operating when he left Carrington. It is not possible to make a finding one way or the other as to whether it had ceased operating after the plaintiff left Carrington.

15 I have placed no weight on Mr Koller’s evidence that he did not see any light in the rear vision mirror. I consider it improbable that he would be able to see such a small light under such circumstances. Assuming that the light on the helmet was operating, it represented one small flashing light in an unusual position on the back of the plaintiff’s head as a means of illuminating the plaintiff, the bicycle and the trailer on an unlit road. I do not, in those circumstances, regard it as negligent of the defendant to have failed to be alerted by this light to the presence of the plaintiff on the road.

The plaintiff’s position on the road

16 The plaintiff said he was cycling in the centre of the eastbound traffic lane. He told police that he had been in the centre of the lane, rather than cycling to the left, to avoid potholes in the bitumen on the northern side of the carriageway.

17 Photographs in evidence were said to show the road in the same condition as it was on 2 October 2005. There were no potholes on the road for some distance leading to the point where the accident occurred.

18 The defendant said the plaintiff was in the centre of the road, almost straddling it, to the right of her vehicle. Interviewed by police immediately after the accident, she was recorded as stating that the plaintiff was directly in the middle of my lane, about twenty feet in front. Notwithstanding this statement, she maintained in her evidence to the court that the plaintiff had been riding on or very close to the centre line.

19 Mr Cosandey said that the plaintiff was about thirty centimetres from the centre line.

20 Mr Koller said the plaintiff was about one metre from the centre line, causing him to steer to his left away from the centre line and as close as possible to the edge of the road.

21 My findings on this issue are as follows.

1. The plaintiff was fully aware of the limited illumination on this part of the road and yet he chose to ride in the centre of the eastbound lane. The reason given that he did so because of potholes at the edge of the road was not supported by the evidence.

2. I reject the defendant’s evidence that the plaintiff was virtually straddling the centre line when she first saw him.

3. I reject the plaintiff’s evidence that he was cycling in the centre of the eastbound lane. It was contrary to the evidence of Mr Koller and Mr Cosandey, both of whom indicated that the plaintiff was cycling to the south of the eastbound lane.

4. I find, therefore, that immediately prior to the accident, the plaintiff was cycling to the south of the eastbound lane but he was not cycling on the centre line.

5. The evidence that the impact with the plaintiff’s trailer was with the left-hand side of the defendant’s car gave support to the defendant’s evidence that the plaintiff upon becoming aware of the defendant’s oncoming vehicle, attempted to cross to the northern side of the eastbound lane.

The opportunity for evasive action

22 The defendant and Mr Cosandey had been out to dinner. There was no evidence that either was affected by alcohol. They drove to Kooragang Island with the intention of parking to look back at the lights of Newcastle. They originally intended to stop at the structure known as the Windmill on the southern side of Cormorant Drive, some two hundred metres west of where the accident occurred. They changed their mind and the defendant drove back into the eastbound traffic lane accelerating and intending to travel at the speed limit of eighty kilometres an hour. The defendant had reached a speed of about seventy kilometres an hour when she saw Mr Koller’s car coming in the opposite direction on the southern side of the road. She saw this car veer to its left and she was concerned that the driver might be affected by alcohol or might have fallen asleep. She took her foot from the accelerator of her car. The lights of both cars were on low beam.

23 Mr Cosandey said that he then said to her, I think there’s something on the road. As he said this, she said she saw a shape and she thought it was a kangaroo. Mr Cosandey then said that it was a bicycle. She made out the shape of the bicycle and put her foot flat on the brake. She said the bicycle began to head towards the right and she steered to the left. At that point, the plaintiff turned to look behind him and then steered the bicycle across in front of her car. As already noted, the impact was with the left side of her car. The impact was initially with the trailer so that the bicycle was thrown to the left and the plaintiff travelled down beside the car.

24 In cross-examination, she was challenged on the basis that she was not paying attention to what was ahead because her attention was focused on the car travelling towards her. She denied this but she agreed that she had, as a precaution, taken her foot from the accelerator. She denied that the lights of the oncoming car had illuminated the plaintiff. She said she saw a small shape at the same time as Mr Cosandey first spoke to her and that she braked immediately. She could not say how far away she was when the plaintiff was first seen. Mr Cosandey confirmed that he alerted the defendant twice to the presence of something on the road and that the defendant reacted between the first and second alert. He said the bicycle veered to the left at the same time as the car was skidding to its left.

25 My findings on this issue are as follows.

1. There was unchallenged evidence of Mr Griffiths that the pre-impact speed of the defendant’s vehicle was about fifty-five kilometres an hour and that the illumination provided by her headlights on low beam was limited to a distance of twenty-five to thirty metres.

2. Having regard to the presence of Mr Koller on the road, I consider it appropriate that the defendant switched her headlights to low beam.

3. There was no evidence that the defendant was travelling at a speed greater than the eighty kilometre an hour limit or that the circumstances were such that the defendant ought to have reduced her speed to less than that limit.

4. The defendant’s evidence is that she switched to her left after applying her brakes was confirmed by tyre marks on the road.

5. I therefore reject the plaintiff’s submission that the defendant was concentrating on Mr Koller’s oncoming vehicle to the point where she was not looking directly ahead until it was too late to take appropriate action to stop or swerve to avoid a collision.

6. The defendant did, in fact, sight the plaintiff and the bicycle in time to take action by applying her brakes and swerving to the left. Not only did she see the plaintiff, she took appropriate, evasive action.

7. I accept the defendant’s evidence that the impact would have been avoided if the plaintiff had not moved across in front of, and to the left-hand side of the defendant’s car.

In summary

26 I find that the cause of the accident was the presence of the plaintiff in a position on the road where he should not have been; the absence of adequate illumination to alert drivers to his presence; and his movement to the left or to the northern side of the road when he was alerted by the sound of brakes to the approaching vehicle driven by the defendant. I find that in those circumstances, the defendant was not in breach of her duty of care to the plaintiff.

ISSUE 2 - CONTRIBUTORY NEGLIGENCE

27 The plaintiff was significantly affected by alcohol. The evidence indicated that he was a seasoned drinker with a past history. Professor Starmer, in those circumstances, estimated the likely blood alcohol content at the time of the accident to be in the region of 0.190. I accept that the plaintiff’s capacity for reason and judgment would have been affected considerably by the extent to which he was intoxicated. I have already noted that he was riding in an inappropriate position on the road and that he was inadequately illuminated. Were I to have found negligence on the part of the defendant, I would have assessed the plaintiff’s contributory negligence at seventy-five per cent.

ORDERS

28 Having regard to my determination on the question of liability, the orders that I make are as follows.

1. Verdict for the defendant.

2. The plaintiff is to pay the defendant’s costs of the proceedings.

3. The exhibits are returned.

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