Parody v HORSTING
[2005] WADC 247
•16 DECEMBER 2005
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: PARODY -v- HORSTING [2005] WADC 247
CORAM: O'SULLIVAN DCJ
HEARD: 10-11 AUGUST 2005
DELIVERED : 16 DECEMBER 2005
FILE NO/S: CIV 2358 of 2004
BETWEEN: DEBRA CATHERINE PARODY
Plaintiff
AND
JUNE HORSTING
Defendant
Catchwords:
Negligence - Motor vehicle accident - Liability only in issue - Collision at intersection controlled by traffic lights - Contributory negligence
Legislation:
Nil
Result:
Liability of defendant established
Finding of contributory negligence against plaintiff
Damages reduced by 20 per cent
Representation:
Counsel:
Plaintiff: Mr D M Bruns
Defendant: Mr D R Sands
Solicitors:
Plaintiff: Separovic & Associates
Defendant: Talbot & Olivier
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
O'SULLIVAN DCJ: The plaintiff brings a claim for damages for injuries sustained in a motor vehicle accident on 30 December 2002. Quantum has been agreed.
The accident occurred at about 11 am at the intersection of Wanneroo Road and Joondalup Drive. The plaintiff was driving a Hyundai Excel in a northerly direction along Wanneroo Road. The intersection is controlled by traffic lights. After entering it her vehicle collided with a Holden Rodeo being driven by the defendant.
The plaintiff's evidence
The plaintiff, who was born on 13 March 1960 and works as a teachers' assistant said that as she approached the intersection she was travelling at between 60 and 70 kilometres per hour. The speed limit in the area was 80 kilometres per hour. Wanneroo Road is divided into two north bound lanes and she was in the left hand lane.
There is a "Prepare to stop" sign some distance back from the intersection facing north bound traffic. Lights on it flash to warn approaching drivers if the lights at the intersection are against them. The plaintiff said that the lights were not flashing. She said that as she approached the intersection she remembers seeing a green light but her next recollection is of being in hospital. She does not recall any vehicles other than her own travelling in the same direction nor any vehicles travelling in any other direction.
In cross‑examination the plaintiff said that she was sure that the "Prepare to stop" sign was not activated because "if they'd have been flashing I would have been preparing to stop." She does not recall breaking or slowing her vehicle at all as she approached the intersection.
When pressed as to her last memory before the accident the plaintiff was asked and said:
"Are you able to estimate how far from the intersection you were …?‑‑‑I was coming up to the intersection where the lines are full lines. I don't recall crossing the full line at the intersection.
It's not clear to me what you mean by 'the full line'?‑‑‑When you come up to the intersection there's the dotted lines they've divided into two lanes and then it becomes a full line to the stop, the line that goes across between the lights, yes"
As to her recollection that the lights facing her were green she said:
"As I was coming to the intersection I passed the big 'Be prepared to stop' sign and as I looked ahead, they were green."
Laine Parody
The plaintiff's son Laine Mathew Parody, who is now 19 years old was seated in the front passenger seat of her vehicle at the time of the accident. His brother Alexander, who is now 15 was in the seat behind him. He said it was a fine, sunny day and the road was dry. It had not been raining. He recalled that the lights on the "Prepare to stop" sign were not flashing as they passed it and the traffic lights facing them as they approached the intersection were green.
As his mother drove into the intersection Laine said that he saw two vehicles, one behind the other in the most westerly south bound lane of Wanneroo Road in the process of turning west into Joondalup Drive. The first, a green station wagon, turned safely in front of the plaintiff's vehicle. The second, the defendant's vehicle collided with the Hyundai Excel striking it on the front right hand driver's side panel. He said that his mother "didn't really have time to swerve". He recalled hearing tyres screeching but was not sure if it was the plaintiff's car or another vehicle.
Laine Parody made a statement about the accident which was taken by police who attended at the scene. It reads in part:
"As passing by a green Ford wagon turned right and straight after the white Hilux followed it. I was worried cause (sic) saw it coming don't think Mum recognised it then I said, 'Mum watch out' and she saw it and put on the brakes and that's when we got hit."
The reference to the white Hilux is clearly a reference to the defendant's vehicle.
The defendant's evidence
The defendant gave evidence that she drove her vehicle in a southerly direction along Wanneroo Road intending to turn right into Joondalup Drive. She had a passenger with her, Mrs Margaret Jones.
There is also a "Prepare to stop" sign facing traffic approaching the intersection in the direction in which she travelled. It was flashing.
The defendant said that as she approached the intersection the lights facing her were red and she slowed down changing down into first gear so that she might have been travelling at about 5 kilometres per hour. At this point she was in the right hand or feeder lane for traffic intending to turn right into Joondalup Drive. She was then asked and said:
"As you got to the intersection, were the traffic lights red?‑‑‑They were red as we approached and then the green arrow came just as we got level with the intersection.
When you say you got level with the intersection, did you actually enter the feeder lane to turn right at the intersection?‑‑‑Yes.
And did you change down your gears as you approached?‑‑‑Yes, I'd actually changed down to neutral and then the green arrow came on so I put it into first and started to move around.
Are you able to estimate the speed that you were doing at the time that the arrow changed to green?‑‑‑May have been five kilometres."
Mrs Horsting said that when she saw the green arrow indicating she could turn right she then proceeded to do so entering the intersection, still in first gear and doing approximately 5 kilometres per hour. She then said:
"Well, we were hit. We didn't see anything but we were hit and the vehicle just came to a stop."
It was also the evidence of the defendant that there were no vehicles in front of her turning right. She said that as she came up to the lights and a green arrow came on hers was the first vehicle to move into the intersection from the lane in which she had been travelling.
Margaret Ann Jones was the passenger in the defendant's vehicle. She said that as they approached the intersection the traffic lights facing them were red but "as we were about, I think six to eight metres of the lights, it turned from a green arrow (sic) and we proceeded to travel." Mrs Jones thought that the "Prepare to stop" lights had been flashing when they passed the sign earlier.
Mrs Jones also said that as the defendant drove up to the intersection her vehicle was travelling at no more than 5 kilometres per hour. She said:
"It was very slow because we were coming to a halt prior to that and the green arrow come on and she just changed down and kept moving."
She saw no other vehicles until the collision. It was her evidence that there was no vehicle in front of the defendant's vehicle turning right.
The traffic lights
Traffic movements through the intersection are controlled in a number of ways.
When "Sequence A" is in operation green lights face north and south bound traffic in Wanneroo Road. During this phase there is an illuminated red arrow facing south bound traffic entering the intersection and intending to turn right into Joondalup Drive. The red arrow goes off after four seconds allowing such traffic to turn right if it is safe to do so.
In another phase ("Sequence D") traffic travelling north on Wanneroo Road is faced with a red light while traffic travelling south on Wanneroo Road has a green light and a green arrow allowing vehicles to turn right into Joondalup Drive. At the end of this sequence the green arrow turns to orange and then red. An orange arrow is illuminated for five seconds before it becomes red.
The "Prepare to stop" signs are situated on the east and west sides of Wanneroo Road, 106 metres north and south of the intersection. They commence to flash 5.8 seconds before the end of Sequence A.
If traffic travelling north on Wanneroo Road has a green light it must be Sequence A that is in operation.
Pedestrian demand or traffic demand activates sensor pads under the bitumen at the intersection. If there is no pedestrian or traffic demand at all the lights remain in Sequence A so that traffic travelling north and south in Wanneroo Road has a green light.
There is a delay of two seconds between phases during which all traffic wishing to enter the intersection is faced with a red light. However, if the lighting sequence moves from D to A there is only a one and a half second delay. In other words, when the red arrow is illuminated facing south bound traffic in Wanneroo Road, there is only a delay of one and a half seconds before the green light facing north bound traffic in Wanneroo Road is illuminated.
Other evidence
There is a slip road at the intersection for traffic travelling north in Wanneroo Road and turning west into Joondalup Drive. Mark Raymond Taylor was driving his Nissan Patrol that was stationary in the slip road at the time of the accident. He was in a line of traffic which had turned off Wanneroo Road into the slip road. The line had stopped in order to give way to traffic heading west in Joondalup Drive. A number of vehicles in Joondalup Drive passed in front of the slip road and the vehicles in front of Mr Taylor then proceeded. However, he said that by the time he got to the give‑way sign other vehicles were passing in front of his vehicle. He said that these had come from Wanneroo Road turning west into Joondalup Drive. As he put it:
"By the time I got to the intersection there were then other cars coming from Wanneroo Road. They were facing south but turning across the intersection to then – they wanted to go west as well."
Mr Taylor remained stationary at the give way sign of the slip road watching the stream of traffic pass in front of him. He then saw a Holden Rodeo enter the intersection from Wanneroo Road into Joondalup Drive. He was asked why he noticed that vehicle and said:
"Well, because I was waiting to turn from the give‑way sign, I saw that as the last vehicle and I thought once that vehicle goes through the intersection I'll be right then to take off from the give‑way sign."
Mr Taylor said that the Holden Rodeo was the last in "a steady stream" of vehicles turning from Wanneroo Road into Joondalup Drive. Asked when he first noticed it he said:
"Initially it was back behind some other cars waiting to turn right but when I sort of gave it more attention was as it was coming into the intersection. That's when I started, you know, watching that car as the one that I would have to wait for before I would be clear."
Mr Taylor said that as he watched the Holden Rodeo move into the intersection he then saw another car heading north on Wanneroo Road and the two vehicles collided.
Tara Jane Taylor was a passenger in the vehicle being driven by her husband at the time of the accident. She said that when they joined the line of traffic in the slip road waiting to turn west into Joondalup Road they were initially "a fair way back". By the time their vehicle reached the give‑way sign traffic was turning from Wanneroo Road west into Joondalup Drive. There were, she said, quite a few vehicles in this stream of traffic, "more than five". The vehicles were following one behind the other and there was no time for her husband to pull out into Joondalup Drive.
Mrs Taylor then said:
"While we were waiting there I remember watching the intersection. There were two cars left to cross the intersection. I remember looking at them. The two children in the back, it was approaching their lunchtime. We had been in the car for over an hour and they were starting to get a bit grizzly. I turned to them to say, 'We're going to be getting there – we will be there soon and we'll give you a milkshake when we get there,' so I'd actually turned and I was facing the back of the car.
… I could see straight through the back of the car.
… I saw the movement of a vehicle travelling down Wanneroo Road across towards the intersection and it was moving fairly consistently. It didn't appear to be accelerating or braking. It was just travelling quite – probably at the speed limit."
Mrs Taylor said that the car that she saw was the plaintiff's car heading north in Wanneroo Road. She did not see the collision. The plaintiff's car, she said:
"… was moving steadily down the road. The one thing I could say is I would have assumed it should have been braking because there were those two cars I'd just seen in the intersection. Yes, I would have assumed it should have been but it was moving very steadily."
Mrs Taylor said that before she turned to deal with the children she had seen the last two cars in the line of traffic turning from Wanneroo Road into Joondalup Drive. She thought that the last car was a white four‑wheel drive.
Findings
The passage of south bound vehicles in Wanneroo Road wishing to turn west into Joondalup Drive is controlled by Sequences A or D.
If Sequence A had been in operation at the time of the accident north and south bound traffic in Wanneroo Road entering the intersection would have been faced with a green light. During this phase there would initially have been a red arrow facing south bound traffic in Wanneroo Road wishing to turn west into Joondalup Drive. The red arrow would then have gone off allowing such traffic to turn when it was safe to do so.
If Sequence D had been in operation there would have been a green arrow facing south bound traffic in Wanneroo Road and a red light facing north bound traffic. Sequence D comes to an end with an orange and then a red arrow facing south bound traffic wishing to turn west into Joondalup Drive. There is then a delay of one and a half seconds before a green light illuminates for traffic travelling north through the intersection in Wanneroo Road.
The defendant and Mrs Jones gave evidence that as their vehicle came up to the intersection a green arrow in their favour lit up. If this was the case then Sequence D must have come into operation. No green arrow lights up in Sequence A.
However, the defendant and Mrs Jones also insisted that their vehicle was the first to move into the intersection. They said that as they moved slowly up to the intersection they saw the green arrow light up and that there were no cars in front of them.
I do not accept this evidence. It is inconsistent with that of Mr Taylor who spoke of a steady stream of south bound traffic in Wanneroo Road turning west into Joondalup Drive. In my view it is more likely that the defendant's was the last in a row of vehicles to enter the intersection.
Mrs Taylor gave evidence which I accept that as the vehicle she was in was waiting in the slip road to turn into Joondalup Drive and before the accident she saw no cars heading north in Wanneroo Road into the intersection until she saw the plaintiff's car. She said:
"From memory there wasn't a lot of traffic heading across … There was (sic) no cars, from memory, at those lights. Any traffic that was coming seemed to have been joining the give‑way sign. There wasn't any through traffic."
Both the plaintiff and her son Laine gave evidence that when they passed the "Prepare to stop" sign it was not flashing. Moreover Laine gave evidence that as they approached the intersection the lights facing their vehicle were green. The plaintiff did not slow her vehicle as she would have been likely to do if the lights were red. They would have been red if Sequence D had been in operation.
In my opinion in all the circumstances it is more likely than not that Sequence A was in operation at the time of the accident. Accordingly, the defendant was only permitted to turn west into Joondalup Drive when it was safe to do so. The plaintiff's vehicle was travelling at a steady speed in a northerly direction into the intersection and it was clearly not safe.
In all the circumstances I am satisfied that the defendant was negligent in turning into Joondalup Drive when it was unsafe to do so.
Contributory negligence
It is clear that as the plaintiff approached the intersection a number of vehicles were turning in front of her into Joondalup Drive. Mrs Taylor observed the plaintiff's car "moving steadily down the road" and thought that it should have been slowing down. The plaintiff's son, Laine, saw the stream of traffic turning in front of them and was concerned because, as he told the police, he "didn't think Mum recognized it" and he said to her "Mum, watch out."
In my view the plaintiff did not exercise an appropriate degree of care when she drove into the intersection. While she had right of way, as I have found, she clearly did not slow her vehicle down at all as would have been prudent. Had she done so, and kept a more careful look out, the collision might have been avoided.
In my opinion in all the circumstances the plaintiff failed to take care for her own safety and her entitlement to damages should be reduced by 20 per cent.
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