Osborn v Holmes
[2007] WADC 56
•23 APRIL 2007
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: OSBORN -v- HOLMES [2007] WADC 56
CORAM: SLEIGHT DCJ
HEARD: 26, 27 & 28 FEBRUARY 2007
DELIVERED : 23 APRIL 2007
FILE NO/S: CIV 948 of 2005
BETWEEN: ERIN CHEMEI OSBORN
Plaintiff
AND
RICHARD DANIEL HOLMES
Defendant
Catchwords:
Inexperienced driver - Turning right across roadway to driveway - Defendant travelling at grossly excessive speed in the opposite direction - Collision - Apportionment of liability
Legislation:
Law Reform (Contributory Negligence and Tort Feasors Contribution) Act 1947
Result:
Liability apportioned 80/20 per cent in plaintiff's favour
Representation:
Counsel:
Plaintiff: Mr J G Staude
Defendant: Mr T H Offer
Solicitors:
Plaintiff: S C Nigam & Co
Defendant: Stephen Browne
Case(s) referred to in judgment(s):
Gindein v Ceraolo (1992) 16 MVR 198
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Norris v Siebel (1975) 12 SASR 317
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Sibley v Kais (1967) 118 CLR 424
Tran v Government Insurance Office of New South Wales (1994) 20 MVR 182
SLEIGHT DCJ: In this action both the plaintiff and the defendant are claiming damages for personal injuries arising from a motor vehicle accident on 6 April 2004. Both allege in the pleadings that the other was negligent and caused the accident. However, the defendant conceded at trial that he was travelling at a grossly excessive speed and he was thereby negligent and contributed to the accident. The issue at trial narrowed down to whether the plaintiff was also negligent and the extent there should be an apportionment.
Circumstances of accident
At about 4.30 pm the plaintiff was the driver of a Hyundai Excel motor vehicle being driven in a northerly direction along Treasure Road in Queens Park, a residential suburb of Perth.
The plaintiff had held a licence for approximately five weeks. She slowed down and commenced to execute a right hand turn across the southbound lane into a driveway at 179 Treasure Road. The defendant's vehicle (a Nissan sports car) came over a crest in the roadway at a high speed, well in excess of the speed limit of 50 kilometres per hour and a collision occurred between the two vehicles shortly after the plaintiff's vehicle had just crossed over the centre white line and had protruded about one metre into the southbound lane.
Visibility of approaching defendant's vehicle
The defendant led evidence at the trial through a Mr Robert Davey, who was called as an expert in the field of motor vehicle accident investigations. On 13 July 2006 he attended at Treasure Road and placed a video camera in the centre of the road directly opposite the driveway of 179 Treasure Road. The lens of the camera was positioned exactly 100 centimetres above the road surface (at a height consistent with approximately the height of the plaintiff in her vehicle). A white Holden Commodore was then driven along Treasure Road towards the camera at a speed of 50 kilometres per hour. Using the frame speed of the images produced, Mr Davey was able to calculate the distance from the camera to where the white Commodore was at various points as it approached the camera. He was able to extract from this video imaging a series of photographs showing the white Commodore coming over the crest and approaching the position of the camera at various distances.
I also attended the scene of the accident with counsel and I am satisfied that the photographs produced in evidence by Mr Davey are accurate and were taken from a point, roughly coinciding with the point of the collision.
From these photographs I make the following findings:
1.When the defendant's vehicle was 200 metres from the point of collision the top of the vehicle was just visible, however at this distance it was very difficult to see because of a cluttered background.
2.As the defendant's vehicle came over the crest of the hill and approached the point of collision, more and more of it became visible. It would not have been fully visible until it was about 120 to 100 metres from the point of the collision.
Manner of driving of the defendant's vehicle before collision
Counsel for the defendant conceded at the commencement of the trial that the defendant's vehicle was doing in excess of 100 kilometres per hour before braking and that the issue as to its speed was to the extent to which it exceeded 100 kilometres per hour.
The speed limit in the area was 50 kilometres per hour. It is a built up residential area. On the south side of the roadway (the opposite side to 179 Treasure Road) and north of the point of collision were two primary schools.
The defendant gave evidence and admitted that he was doing at least 100 kilometres per hour but was not watching his speedometer. He admitted that as he approached the scene of the accident, he observed the plaintiff's vehicle. He continued to accelerate his vehicle as he approached the plaintiff's vehicle until he observed the plaintiff's vehicle commence to execute a right hand turn by coming across over onto his side of the roadway. He said that he applied his brakes fully and his vehicle commenced to skid but he could not avoid a collision.
The defendant said that he did not observe any indicators operating on the plaintiff's vehicle.
Crash scene experts gave evidence at the trial and gave estimates of the speed of the defendant's vehicle. These witnesses were Dr Milos Nedved (called by the plaintiff), Senior Constable David Magorian (called by the plaintiff) and Mr Robert Davey (called by the defendant).
I accept that all three witnesses are experts in their field, but at best their evidence can only provide a guide as to the probable speed of the defendant's vehicle and what occurred when the two vehicles collided.
Dr Milos Nedved, in a report dated 15 February 2005, made a calculation which led him to estimate the speed of the defendant's vehicle prior to braking at 159 kilometres per hour.
I conclude that I am unable to rely upon Dr Nedved's estimate. Firstly, Dr Nedved used in his calculation inaccurate estimates of the distances both vehicles travelled after impact. He had not attended the scene of the accident when the vehicles were in situ and relied upon a discussion he had with the plaintiff to estimate that both vehicles travelled about 25 metres after impact. In fact the defendant's vehicle travelled 30 metres and the plaintiff's vehicle, 26 metres. Secondly, the calculations assumed that the coefficient of friction between the tyres and the road surface remained constant, both before and after impact, and he used 0.7 as an accepted coefficient. On the evidence of Senior Constable Magorian and Mr Robert Davey, and the photographs of the scene, I conclude that it was inappropriate for Dr Nedved to use in his calculation a coefficient of friction of 0.7 after impact. The evidence of both Senior Constable Magorian and Mr Davey was that the coefficient of friction would be substantially less for both vehicles after impact. In relation to the defendant's vehicle, it appears that the black tyre mark ceased shortly after impact suggesting that the vehicle was no longer in a full wheel brake locking situation which according to the expert evidence is required for the coefficient of friction to be 0.7. Further, two wheels of the defendant's vehicle went on to a grass verge and from the evidence of Senior Constable Magorian and Mr Davey, I find that the coefficient of friction on grass is less than bitumen. In relation to the plaintiff's Hyundai, there is no evidence from the markings on the road that indicate the Hyundai was in a full wheel lock braking situation, and therefore, according to the evidence of Senior Constable Magorian and Mr Davey, the coefficient of friction was likely to be significantly less than 0.7.
The evidence of Senior Constable Magorian included producing a series of calculations (exhibit 5) where he calculated the speed of the defendant's vehicle using variable figures for the coefficient of friction for the two vehicles after impact. Senior Constable Magorian had the advantage of actually visiting the scene on the day of the accident and inspecting the tyre marks and gouge marks on the roadway and the grass verge.
Of the series of calculations he made, the calculation he thought most reliable was the calculation using a coefficient of friction post impact for the Hyundai (the plaintiff's vehicle) of 0.3 and the Nissan (the defendant's vehicle) of 0.5. Based upon these figures, he calculated the speed of the Nissan prior to braking at 125.23 kilometres per hour.
Mr Robert Davey also provided in his evidence a series of calculations. The calculation he thought most appropriate was based upon a post impact coefficient for the Hyundai of 0.2 and the Nissan of 0.3. This led to a calculation of speed of the defendant's vehicle prior to braking of approximately 109 kilometres per hour. In his calculation he used a lower coefficient of friction post impact for the Nissan (the defendant's vehicle) as he concluded from the markings on the roadway that the Nissan after impact was not under full braking. I find that this is correct, but it does not necessarily follow that I accept Mr Davey's estimate of the speed of the Nissan prior to braking.
All experts conceded that it was very difficult to ascertain what the appropriate post impact coefficient of friction figures ought to be in their calculations. To be more accurate they would need to do drag tests over the various surfaces that the vehicles passed after impact.
Further, both Senior Constable Magorian and Mr Davey conceded that their calculations were conservative in favour of the defendant due to two factors.
Firstly, neither witness made an allowance for de-acceleration of the defendant's vehicle which would occur when the defendant took his foot off the accelerator and then commenced to brake to the point where the wheels locked and started to skid. The reason no allowance was made was because both came from a background of investigating accidents for the Police Department and it was a practice to take a conservative approach in favour of an accused in their calculations so as to assist in proving criminal charges beyond reasonable doubt. Further, Mr Davey stated, from tests that he had conducted, he believed that the full lock braking occurred very quickly and therefore any adjustment that should be made to the pre-braking figure to ascertain the speed the defendant's vehicle was travelling at would be minimal. However, Dr Nedved stated that based upon various published research results it is appropriate to allow for a 20 per cent loss of energy before the wheels are locked. Neither Senior Constable Magorian nor Mr Davey were familiar with the written research papers referred to by Dr Nedved. However, I conclude that as a matter of commonsense, some allowance should be made for de‑acceleration prior to the wheels going into full lock and skidding.
Also Senior Constable Magorian and Mr Davey made no allowance for the speed of the Hyundai. Again, both treated the Hyundai as being stationary to give a conservative calculation in favour of the defendant, following the procedure that would be followed as if the defendant was being prosecuted in criminal proceedings. However, it is quite clear that the Hyundai was not stationary at the point of collision, albeit that it was travelling probably at a very slow speed.
The plaintiff also called a Mr Alan Day who was on the west side of Treasure Road at the time of the collision and his attention was attracted by screeching brakes and the sound of the collision. He observed one of the vehicles (which I conclude was the plaintiff's vehicle) spinning around. He believed it spun completely around twice.
Ms Caltanisetta, the passenger in the plaintiff's vehicle, in her evidence stated that she believed the plaintiff's vehicle spun around once.
This evidence of the plaintiff's vehicle spinning around after impact demonstrates the uncertainty as to what is the appropriate coefficient of friction figure to be used for the Hyundai after impact as the spinning of the vehicle possibly affects the retardation of the vehicle after impact.
The plaintiff also called a Mr Lance Boston who was the manager of a liquor store in Treasure Road. He described a vehicle fitting the description of the defendant's vehicle leaving a liquor store carpark at speed. The reliability of Mr Boston's evidence was attacked by the defendant but, in any event, I do not believe the evidence adds any assistance to me in assessing the speed of the defendant's vehicle.
I conclude that the calculations of both Senior Constable Magorian and Mr Davey are probably on the conservative side.
Taking all factors into account, I conclude that it is probable that the speed of the Nissan driven by the defendant, prior to him taking his foot off the accelerator and commencing to brake, to be somewhere in the vicinity of 120 kilometres per hour (or 33.3 metres per second).
The other piece of relevant evidence was the evidence of Mr Davey that if the defendant's vehicle had been travelling at the speed limit, the defendant could have stopped his vehicle approximately within 14 metres after fully applying his brakes. Given that the defendant's vehicle had skidded 30 metres, it is clear that if the defendant had been travelling at the speed limit, he could have safely stopped before the point of impact.
Manner of driving of the plaintiff
The plaintiff's evidence was that she was driving cautiously along Treasure Road in a northerly direction and intended to turn into the driveway of her then boyfriend's house at 179 Treasure Road. She had a passenger in her vehicle, Caroline Caltanissetta. Both the plaintiff and her passenger were 17 years of age at the time of the accident.
The plaintiff said that she had put her indicator on to indicate a right hand turn about 30 metres from the driveway of 179 Treasure Road and commenced to slow down. She said she checked for oncoming traffic and did not see any.
She said she then commenced her turn and heard a screech of brakes and then the collision occurred.
She said the driveway at 179 Treasure Road was not an easy driveway to pull into because of the presence of a picket fence on either side. She stated in cross-examination that she needed to approach the driveway at near to a 90 degree angle. She also said she needed to keep a lookout for pedestrians on a footpath which ran across the front of the property.
She stated in cross-examination that she checked the approach of the traffic coming in the opposite direction just before she commenced her turn.
Her evidence was largely supported by her passenger Ms Caltanisetta who stated she remembered the plaintiff indicating about 30 to 40 metres from the driveway and slowing down to about 20 kilometres per hour.
The passenger said she was a nervous passenger and she also looked up the road before the plaintiff commenced her turn, but saw no approaching vehicle. She said the plaintiff commenced her turn. Ms Caltanissetta said that she then heard a screech of wheels and then the collision occurred. She said she saw the defendant's vehicle just before impact.
The damage to the two vehicles suggests that the vehicles hit almost head on but with the plaintiff's vehicle being at a slight angle so that the right front of the plaintiff's vehicle was more compressed than the left hand front of the vehicle. The point of impact with the defendant's vehicle was the right hand front of the vehicle which led to severe damage to an area in the vicinity of the right hand front wheel.
The tyre and other markings on the road suggest that the point of impact between the two vehicles was about one metre from the centre line so that the plaintiff's vehicle had only just commenced to cross into the south bound lane on the defendant's side of the road.
I find that the plaintiff was driving cautiously and had indicated about 20 to 30 metres from the driveway of 179 Treasure Road of her intention to execute a right hand turn. I also find that she slowed her vehicle down as she approached the driveway. I am satisfied that she looked for oncoming traffic and saw no approaching vehicle, and then focussed her attention on executing a right hand turn.
I am satisfied that when the plaintiff looked, the defendant's vehicle was approaching the crest of the hill and not observed by the plaintiff. In the report of Mr Davey tendered into evidence, he stated that at a distance of 220 to 200 metres when the roof and the windscreen of a vehicle would be visible over the crest of the hill, it was very difficult to see because of the cluttered background, and in the case of a dark coloured, low profile, Nissan sports car may not be seen at this distance.
Mr Davey also concluded that at a distance of 150 to 160 metres, the defendant's vehicle could easily be identified. I agree with this conclusion. I find that, although at this distance only part of the vehicle would be visible, a sufficient portion of the vehicle (from about the bottom of the headlights upwards), could be seen by a driver in the position of the plaintiff.
The defendant's vehicle commenced a full skid at 30 metres from the point of impact. The defendant's evidence was that he applied the brakes when he observed the plaintiff's vehicle commencing to cross the centre white line. Allowance for reaction time (say, one second) and an application of the brakes to full braking, I conclude that the defendant's vehicle was probably about 70 metres (30 metres for the skid plus 40 metres travelled for reaction time and applying full brakes) from the plaintiff's vehicle when the defendant first observed the plaintiff's vehicle to commence its turn.
This would mean that the defendant's vehicle travelled about 80 to 90 metres (150 to 160 metres less 70 metres) from the time the defendant's vehicle would have been reasonably observable by the plaintiff to the point where the plaintiff commenced her turn. I find that this means that the defendant's vehicle would have been reasonably observable by the plaintiff for a period of slightly less than three seconds prior to the plaintiff commencing her turn (given that the defendant's vehicle was travelling at approximately 33 metres per second prior to braking).
Was the plaintiff negligent
Under reg 58 of the Road Traffic Code a driver of a motor vehicle turning right from a carriageway into land abutting the carriageway is required to give way to any oncoming vehicle on the carriageway.
That obligation to give way is subject to reg 7 which provides as follows:
"Where any of these regulations require a driver or pedestrian to give way to a personal vehicle, the requirement takes effect when there is a reasonable possibility that, if he or she proceeded, he or she would collide or come into conflict with, or create any other dangerous situation with regard to, that person or vehicle; and, in that event, he or she is obliged to slow down to such an extent, or, as the circumstances may require, stop and remain stationary for such time, as may be necessary to allow the person or vehicle to continue on his, her or its course."
In Sibley v Kais (1967) 118 CLR 424, the High Court made it clear that such traffic rules are not to be conclusive in relation to questions of civil liability. The question is whether the driver has exercised reasonable care.
A driver of a motor vehicle turning right across a line of traffic must show a high degree of care. This duty arises from common sense in that it is the motor vehicle which is cutting across the line of traffic (see Norris v Siebel (1975) 12 SASR 317 at 320; Gindein v Ceraolo (1992) 16 MVR 198 at 205, Tran v Government Insurance Office of New South Wales (1994) 20 MVR 182 at 185).
In this case it must be remembered that the plaintiff's evidence is that she did not see the defendant's vehicle at all prior to commencing her turn. This means this is not a case where it can be said it was a misjudgement of the speed of an approaching vehicle and the opportunity she had to turn right.
The duty of the plaintiff to keep a lookout for oncoming vehicles was heightened by the fact that her visibility of oncoming traffic was restricted by the crest in the roadway, which was approximately 200 metres from where the plaintiff was about to execute her right hand turn. Accordingly, she needed to be constantly vigilant of a vehicle coming over the crest in the roadway.
Would a reasonable prudent driver have seen the approach of the defendant's vehicle and been able to take action to avoid the collision?
The question of whether the plaintiff was negligent and by her conduct, a contributing cause to the accident that occurred, is to be determined by a value judgment involving notions of commonsense (see March v E & M H StramarePty Ltd (1991) 171 CLR 506).
The standard of care is that of a reasonably skilled driver and no adjustment is to be made for the fact that the plaintiff was a driver who only held her licence for a short time (see "The Law of Torts" Flemming, 9th ed, p 123).
The defendant's contention is that a reasonably prudent driver would have had one last look before executing the turn into the driveway and would have observed the approach of the defendant's vehicle and been able to avoid the collision.
I conclude, albeit that the plaintiff had only a very short period of time to observe the defendant's vehicle before commencing her right hand turn, she had sufficient time if she had been sufficiently vigilant to observe the defendant's vehicle, brake and stop her vehicle before it proceeded onto the southbound lane.
I conclude that because of her inexperience the plaintiff was focussing more upon aligning her vehicle with the driveway, rather than keeping an adequate lookout for the approach of oncoming vehicles.
Accordingly, I am satisfied that the plaintiff was also negligent and her negligence contributed to the accident.
Re apportionment of liability
Section 4 of the Law Reform (Contributory Negligence and Tort Feasors Contribution) Act 1947 provides as follows:
"(1)Whenever in any claim for damages founded on an allegation of negligence the Court is satisfied that the defendant was guilty of an act of negligence conducing to the happening of the event which caused the damage then notwithstanding that the plaintiff had the last opportunity of avoiding or could by the exercise of reasonable care, have avoided the consequences of the defendant's act or might otherwise be held guilty of contributory negligence, the defendant shall not for that reason be entitled to judgment, but the Court shall reduce the damages which would be recoverable by the plaintiff if the happening of the event which caused the damage had been solely due to the negligence of the defendant to such extent as the Court thinks just in accordance with the degree of negligence attributable to the plaintiff:"
The making of an apportionment under s 4 of the Law Reform (Contributory Negligence and Tort Feasors Contribution) Act 1947 involves a comparison both of culpability and of the relative importance of the act of the parties in causing the damage: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494. In that case the High Court pointed out that it is the whole of the conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.
In Pennington v Norris (1956) 96 CLR 10 at 16 when discussing responsibility for contributory negligence, Dixon CJ, Webb, Fullagar and Kitto JJ said:
"The only guide which the statute provides is that it requires regard to be had to 'the claimant's share in the responsibility for the damage'. As to the effect of this see generally an article by Mr Douglas Payne, Reduction of the Damages for Contributory Negligence. What has to be done is to arrive at a 'just and equitable' apportionment as between the plaintiff and the defendant of the responsibility for the damage. It seems clear that this must of necessity involve a comparison of culpability. By culpability we do not mean moral blameworthiness but the degree of departure from the standard of care of the reasonable man."
In this case if I was apportioning moral blameworthiness, then I would attribute 100 per cent blameworthiness to the defendant.
However, the apportionment that must be made must be based upon the degree of departure from the standard of care of the reasonable man.
In deciding on the appropriate apportionment, I take into account that the defendant was travelling at a speed grossly in excess of the speed limit in a built up area. Further, even when he first observed the plaintiff's vehicle, he did not slow down but continued to drive his vehicle under heavy acceleration.
The degree of departure of care by the plaintiff was in my opinion, by comparison, minimal. She was driving cautiously and to the best of her ability.
Given the very short period of time that she had to observe the defendant's vehicle due to its grossly excessive speed, the degree of departure from the standard of care of a reasonable person is substantially less than the defendant's.
In my view, an appropriate apportionment in all the circumstances is 80/20 per cent in favour of the plaintiff.
I will hear counsel as to the final orders to be made based upon this apportionment.
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