| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : O'DONOHOE -v- PUCA [2003] WADC 152 CORAM : BLAXELL DCJ HEARD : 19 JUNE 2003 DELIVERED : Delivered Extemporaneously on 19 JUNE 2003 typed from tape and edited by Trial Judge FILE NO/S : CIV 1454 of 2002 BETWEEN : PETER ANTHONY O'DONOHOE Plaintiff
AND
MARCELLO PUCA
Defendant
Catchwords: Negligence - Liability - Motor vehicle collision - Turns on own facts
Legislation: Nil
Result: Plaintiff's claim dismissed
Plaintiff pay defendant's costs to be taxed
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Representation:
Counsel:
Plaintiff : Mr B Bradley
Defendant : Ms K McDonald
Solicitors:
Plaintiff : Bradley & Bayly
Defendant : Crown Solicitor for the State of Western Australia
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 BLAXELL DCJ: The plaintiff claims damages for personal injury suffered in a motor vehicle accident on 15 March 1997 which is said to have occurred as a result of the negligence of the defendant. The trial today has been as to the issue of liability alone.
2 The essential allegation of negligence against the defendant is that he reversed out of a driveway into the path of the plaintiff as the plaintiff was riding his motorcycle along Stevens Street, White Gum Valley. There are certain facts that are common ground; namely, that on 15 March 1997 the plaintiff was riding his motorcycle east along Stevens Street approaching the junction with Edmund Street, and that the front of the motorcycle collided with the rear of the defendant's Ford Laser motor sedan. 3 The nature of the crests and the layout of the streets in that vicinity in accordance with a plan and photographs that have been produced are also common ground. I note that as the plaintiff approached the scene of the collision he had travelled over the crest of a hill in Stevens Street which gave him a good clear view ahead for some considerable distance past the intersection with Amherst Street. 4 As the plaintiff descended the hill there was on his left an oval with an embankment, and after that an area shown on the plan as the Western Power compound where there were two substation buildings (one of which was fairly close to the footpath on Stevens Street). In the vicinity of the two Western Power buildings there were three driveways on the plaintiff's left. The first and the nearest of those driveways, as the plaintiff approached the scene of the collision, was a driveway which led between the oval and the western most of the Western Power buildings. 5 There was a second driveway further on which ran between the two Western Power buildings into a carpark, and then a third driveway which was closer to Amherst Street. Directly opposite the first of these driveways was the junction with Edmund Street, which led off to the right. Beyond the junction with Edmund Street there was the intersection with Amherst Street. 6 It is relevant to note that the plaintiff and the defendant were both very familiar with Stevens Street and each of them travelled along that thoroughfare nearly every day. 7 There are two separate versions as to how the collision occurred. There is, firstly, the plaintiff's version and his version of events is that as he went over the crest of the hill in Stevens Street he had a clear view ahead and there were no vehicles in sight. He coasted down the hill with
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his hand off the throttle, travelling at about 50 to 60 km/h. He had his helmet on with the visor up and it was a balmy evening and, as I understand his evidence, he was enjoying the breeze as he coasted down the hill. 8 As he approached the bottom of the hill he saw a basketball bounce onto the road from his left in the vicinity of the first of the Western Power driveways. He did not brake or take any action to slow down the motorcycle because the engine was revolving in excess of 1200 rpm, which (as I understand his evidence) retarded the motorcycle and kept it at a speed within 50 to 60 km/h. 9 When his attention was alerted to the basketball bouncing onto the road he expected to see children in the vicinity and as he approached the position of the basketball, he did indeed see a boy approach from the left and stop at the edge of the footpath. He assumed that there would be at least one other child in the vicinity and, as he went past the first driveway, he looked to his left and slightly backwards and saw a second boy scrambling down the embankment of the oval. 10 The plaintiff by that time having satisfied himself that there was no danger arising from the presence of the children then returned his attention to the road ahead and for the first time saw the rear of the defendant's vehicle approximately 25 metres away. It is the plaintiff's evidence that when he first saw the vehicle he observed it's reversing lights momentarily on before they went off. If that is correct it would suggest that the vehicle had been reversing immediately before it was seen by the plaintiff. 11 According to the plaintiff he had no time to avoid a collision. He applied his footbrake instinctively, but there was no time for him to apply the handbrake which operated against the front wheel of the motorcycle. Nor was it possible for him to swerve, and that being so, he simply cannoned into the back of the car in front. 12 The effect of that impact was that the plaintiff was thrown off the motorcycle onto the roof of the vehicle in front, down onto the bonnet and then onto the road, and he came to rest on his haunches with his back up against the front of the defendant's car. The car at that stage was stationary, and was angled to the kerb in a position consistent with having reversed out of the second driveway.
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13 From the plaintiff's version of events I am asked to draw the inference that the defendant's vehicle had reversed out of the second of the Western Power driveways immediately before the collision occurred.
14 The defendant's version of events is that he had earlier driven his vehicle into Fremantle to take his 17 year old son to work where he had a position at the Dome Café in South Terrace. The defendant lived in Fisher Street, approximately 700 metres further east from the scene of the collision and at the material time he was returning home along Stevens Street. It is the defendant's evidence that he at no time entered the driveway of the Western Power premises. He had never worked there, did not know anyone who had any association with those premises, nor had any reason to visit the premises. 15 However, as he descended the hill in Stevens Street he slowed down to a speed of about 40 to 50 km/h because, from experience, he knew that children were likely to be playing in the vicinity and particularly in the carpark which led off from the second of the Western Power driveways. Although he did not use the word, the effect of his evidence was that he was also coasting down the hill and gently applying his brakes. His evidence is that he took his foot off the brakes as he passed the second driveway because at that stage of his journey he was able to see to his left and observe that there were no children likely to run out onto the road. 16 It is also the defendant's evidence that for some three or four seconds prior to the collision he could hear a loud noise of a motorcycle approaching from behind. He had his windows open, and heard approximately three gear changes of the motorcycle as it neared. (This evidence is inconsistent with the plaintiff's evidence that he did not change gears at the relevant time). The defendant says that he was then suddenly struck from behind and on his version there was nothing he could have done to avoid the collision. Furthermore it is the defendant's evidence that after the event when he spoke to the plaintiff, the plaintiff said words to the effect, "I'm sorry, I didn't see you". 17 The other witnesses in the trial have been, firstly, Mr Michael Taylor who was a local resident living in a house very close to the scene of the collision. He heard the collision, but did not observe it, and in summary he could not really throw any useful light on the circumstances of the accident. 18 I have also heard from former Acting Sergeant Gooch who was the traffic officer who attended the scene. He described the position of the
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vehicles when he arrived and it is common ground that no vehicle was moved prior to the arrival of the police officers. According to former Sergeant Gooch the defendant's car was approximately halfway between the second and third driveways of the Western Power premises and parallel to the kerb. 19 It is Mr Gooch's evidence that he spoke to the plaintiff who was sitting on a verge near the defendant's car and the plaintiff said to him words to the effect, "I was stupid, I was travelling too fast, I didn't see the vehicle and I ran into the back of it". According to Mr Gooch, the plaintiff did not make any complaint about the manner in which the defendant had driven, and if the plaintiff had made any such complaint he would have questioned the defendant about that, which he did not. 20 Mr Gooch also provided an expert opinion (based on his experience of innumerable motor vehicle accidents over a period of 15 years) as to the likely speed of the motorcycle based upon the nature of the damage that he observed. Mr Gooch further testified that the plaintiff was wearing an open-faced helmet and not a full-faced helmet as claimed by the plaintiff. 21 The issues which arise include whether the accused was wearing a full-faced helmet or not and, in my view, not a great deal turns upon that issue; secondly, the speed of the plaintiff's motorcycle and as to that I make the observation that in my view the evidence is not capable of establishing a precise speed beyond that conceded by the plaintiff. However, if I was to accept Mr Gooch's expert evidence combined with the evidence of the defendant as to what he heard, then I could draw an inference that the plaintiff was travelling at a speed faster than that which he concedes. 22 There is also an issue as to where the vehicles came to rest and as to that I consider the plaintiff and the defendant, to some extent, to be unreliable witnesses. That is understandable given the shock of the collision, and it is a notorious fact that witnesses who have been involved in collisions and accidents, because of the emotions which naturally arise as a result of such events, can be unreliable in their observations. 23 The critical issue to be determined today is whether or not the defendant reversed out of the driveway, and as to that issue I am asked by the plaintiff to draw an inference that the defendant did reverse out of the driveway based upon the plaintiff's observation of the reversing lights. Against that, I have the direct evidence of the defendant that he at no time
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entered that driveway or reversed out of it, and that he had no cause to be at the Western Power premises. 24 I come now to my findings and I accept the plaintiff's evidence that as he descended the hill in Stevens Street his attention was distracted by a basketball bouncing onto the road and the presence of two children to his left. I find that the plaintiff did indeed look to his left and to some extent, backwards and was thus momentarily distracted as he approached the scene of the collision. 25 I also find and accept the plaintiff's evidence that when he returned his attention to the road ahead, he noticed the defendant's vehicle for the first time. I also accept that the plaintiff has made the assumption (as a result of reconstruction after the event) and genuinely believes that the defendant had reversed out of the driveway. 26 The critical issue is whether the defendant did in fact reverse out of the driveway or whether he was travelling along Stevens Street at a relatively slow speed as he claims. The defendant's evidence as to this point is not directly contradicted by the plaintiff, who can only say that he saw reversing lights momentarily. This is an issue about which the defendant cannot be mistaken, but there is in my view room for the plaintiff to be mistaken. 27 Having carefully observed both witnesses, all I can say is that I found the defendant's evidence on this issue to be convincing. I have no doubt that he had been into Fremantle as he claims to drop his 17 year old son off at work and that prior to the collision he was travelling east along Stevens Street as he claims and slowing down because of the likely presence of children and applying his brakes for that reason. 28 The defendant's version as to that critical issue is corroborated by Mr Gooch's observation of the position of the defendant's vehicle after the accident and I consider that the only reasonable explanation for the conflict in the evidence is that the plaintiff is mistaken when he says that he observed the reversing lights. 29 I accordingly find that there is no basis for any finding of negligence against the defendant and for those reasons the plaintiff's claim must be dismissed.
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