Patel v Fraser
[2021] WADC 124
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: PATEL -v- FRASER [2021] WADC 124
CORAM: WALLACE DCJ
HEARD: 8 & 15 SEPTEMBER 2021
DELIVERED : 15 DECEMBER 2021
FILE NO/S: CIV 3508 of 2019
BETWEEN: BHAVESH RAVJI PATEL
Plaintiff
AND
DOUGLAS ROLAND FRASER
Defendant
Catchwords:
Negligence - Motor vehicle accident - Liability only - Turns on own facts
Legislation:
Civil Liability Act 2002 (WA)
Road Traffic Code 2000 (WA)
Result:
Judgment in favour of the defendant
Representation:
Counsel:
| Plaintiff | : | Mr G T Stubbs & Mr L M Hall |
| Defendant | : | Mr D R Clyne & Ms P A Moore |
Solicitors:
| Plaintiff | : | Lian Hall Injury Law |
| Defendant | : | Moray & Agnew Lawyers |
Case(s) referred to in decision(s):
Nil
WALLACE DCJ:
Introduction
On 4 July 2017 at approximately 10.40 am the plaintiff, an off‑duty police officer, left his home in Wagin travelling towards Perth in his silver Mitsubishi Mirage motor vehicle. The route taken by the plaintiff eventually took him to the Piesseville‑Tarwonga Road intersection which traverses onto Albany Highway. After stopping at the give way demarcation, the plaintiff then proceeded to commence a right turn onto Albany Highway. In doing so the plaintiff's vehicle collided with the defendant's grader which was travelling on Albany Highway in a southerly direction.
Whilst the plaintiff had observed the grader approaching the intersection, he believed that it was in the left slip lane therefore indicating that it was exiting Albany Highway. The grader in fact continued to proceed along Albany Highway.
The resultant collision of the vehicles involved the grader impacting the right tail section of the plaintiff's vehicle causing it to spin and come to a stop facing in a northerly direction in the southbound lane of Albany Highway.
The plaintiff claims damages for injuries he sustained as a result of the collision which he alleges were caused by the negligent driving of the defendant.
The parties have reached an agreement in relation to the quantum of damages and thus the sole issue in the trial was that of liability.
Both parties gave evidence at the trial and the defendant also called an independent eyewitness to the accident, Mr William Kellow. Various photographs were also tendered as exhibits.
The central issue in contention in the trial was whether the defendant indicated a commitment to turning left onto Piesseville‑Tarwonga Road and subsequently failed to execute the left turn, thereby causing the collision with the plaintiff's vehicle as it proceeded to leave the intersection.
The negligence alleged against the defendant is particularised in the amended statement of claim as follows:
PARTICULARS OF NEGLIGENCE OF THE DEFENDANT
a)Failing to indicate his intention to move from the southbound slip lane adjacent to Albany Highway onto Albany Highway;
b)Indicating an intention to execute a left‑hand turn onto Piesseville‑Tarwonga Road when he in fact intended to move back onto Albany Highway;
c)Changing lanes when it was unsafe to do so;
d)Failing to stop, steer, swerve or otherwise manoeuvre the grader so as to avoid colliding into the plaintiff's motor vehicle;
e)Failing to apply the brakes of his grader sufficiently or at all;
f)Travelling at a speed that was excessive in the circumstances.
The defendant denies the allegations and says that the accident was caused wholly or in part by the plaintiff's own negligence, particularised in the defence as follows:
The Plaintiff was negligent in that he:
(i)failed to keep any proper or adequate look out;
(ii)failed to take any or any reasonable evasive action to avoid being hit by the defendant's vehicle;
(iii)proceeded to turn onto Albany Highway contrary to a 'Give Way' sign;
(iv)drove into the path of the defendant's vehicle when it was unsafe to do so;
(v)entered the intersection when it was not safe to do so; and
(vi)generally failed to take any or any reasonable care for his own safety.
Evidence of the plaintiff
At the time of the accident, the plaintiff was 42 years old and had been driving a manual vehicle for approximately 27 years. The plaintiff had been employed by the WA Police for six years and had previously worked in the same capacity whilst living in the United Kingdom. The plaintiff, therefore, had experience in driving vehicles both in a personal and professional capacity.
As at July 2017 the plaintiff was very familiar with the roads surrounding the Wagin area having travelled on them both on and off duty.
On 4 July 2017 the plaintiff was off duty and left his home in Wagin at approximately 10.40 am heading to Perth. He was driving his personal manual vehicle, namely a silver Mitsubishi Mirage. The weather was fine with some slight high clouds visible. The plaintiff travelled in a northbound direction from Wagin for approximately 12 km and then turned left onto Piesseville‑Tarwonga Road which ends at an intersection with Albany Highway. This had been a particular route travelled by the plaintiff in excess of 25 times.
The plaintiff stopped at the intersection as required to do so in order to give way to the southbound and northbound lanes on Albany Highway which were duly checked by him.
The plaintiff gave evidence that he first observed the defendant driving the grader when it was at an approximate distance of 60 m ‑ 100 m from his vehicle and observed that it was positioned in the left turning slip lane with its left indicator light flashing. The plaintiff gave evidence that the traffic was low to medium with some traffic passing the grader.
The plaintiff checked again to the left and observed that the northbound lane was clear. He reverted his gaze back towards the right and noted that the only vehicle visible was the grader which was still positioned in the left slip lane. The plaintiff gave evidence that he looked again to the left to ensure that the northbound traffic remained clear and then looked back to the right, again identifying that the grader was in the slip lane. The plaintiff did not observe any other vehicles in the slip lane.
The plaintiff estimated that the grader was travelling at approximately 30 km - 40 km per hour. The plaintiff was cross‑examined as to whether a grader could in fact turn left if it were travelling at that speed and the plaintiff asserted that if the grader was not committed to turning left, then it would have remained in the southbound lane.
The plaintiff gave evidence that, having ascertained that it was safe to do so, he placed his vehicle into first gear and left the intersection to move across Albany Highway commencing a right turn.
The plaintiff gave evidence that he then observed that the tyre of the grader, which was quite prominent and large, was not turning, and realised that the two vehicles were going to collide. He then accelerated his vehicle in an attempt to avoid impact with the grader.
The plaintiff was unable to accelerate sufficiently to escape the path of the grader and it impacted his vehicle on the driver's side from the B‑pillar towards the back of the vehicle as well as the rear right taillight. The impact of the grader spun the plaintiff's vehicle and it came to a stop in the southbound lane of Albany Highway facing in a northerly direction. The plaintiff annotated photograph 37 of exhibit 1 to indicate to the best of his recollection the point of impact with the grader, identifying that the collision took place slightly to the right of the through‑lane marking on Albany Highway.
The plaintiff gave evidence that at some point after the collision he approached the defendant and said words to him to the effect 'You've been travelling in the slip lane, which means you're going to be going left, but you didn't. Why?' to which he received no response.
Police were then called to attend. The plaintiff was breathalysed producing a negative result and his wife attended and drove him to the Wagin Hospital.
The plaintiff conceded in cross-examination that immediately following the accident he may have told Mr Kellow that he thought that the orange flashing lights on the grader were indicators and that he had therefore assumed that the indicators were on.
It was put to the plaintiff in cross‑examination that he had made an error of judgment by pulling out of the intersection when it was unsafe to do so, which was a proposition that he rejected.
Evidence of Mr William Kellow
The defendant called Mr William Kellow to give evidence as an independent eyewitness to the accident.
Mr Kellow gave evidence that as at the time of the accident he was familiar with the Albany Highway and Piesseville‑Tarwonga Road intersection having travelled through it quite often.
Mr Kellow recalled that on 4 July 2017 he was driving either his Toyota station wagon or ASX on Albany Highway travelling south. He encountered the grader prior to reaching the intersection with Piesseville‑Tarwonga Road. He estimated that the grader was travelling at approximately 35 km - 40 km per hour. Mr Kellow did not make any effort to pass the grader because he intended to turn left at the intersection. Mr Kellow was therefore positioned directly behind the grader as he approached the Piesseville‑Tarwonga Road intersection.
Mr Kellow gave evidence that the grader's wheels were positioned on the left-hand side white line seemingly to ensure that the vehicle was not in close proximity to the centre of the road. Mr Kellow stated that when he was able to do so he pulled into the left turning slip lane heading towards the Piesseville‑Tarwonga Road intersection. As Mr Kellow travelled down the slip lane he observed the plaintiff's car pulling away from the intersection into the path of the grader causing the vehicles to collide.
Mr Kellow estimated that prior to the collision with the plaintiff's vehicle, the grader was positioned 95% in the southbound lane heading towards Albany. He stated that he did not see any indicators flashing indicating that the grader was turning left.
Mr Kellow gave evidence that he had a clear view, once he was in the left turning slip lane, of the plaintiff's vehicle at the intersection. He stated that there was nothing obscuring his line of vision in this regard.
Mr Kellow estimated that the plaintiff's vehicle pulled out of the intersection when the grader was approximately 15 m - 50 m away. Mr Kellow observed that the defendant braked the grader hard but nevertheless was unable to avoid the collision. Mr Kellow marked with a cross on photograph 1 of exhibit 1, the point where the grader impacted the plaintiff's vehicle, namely the outer boundary line of the southbound lane.
After the collision, Mr Kellow checked on both parties and provided his details. Mr Kellow had never previously met either party.
It was put to Mr Kellow in cross-examination that there were inconsistencies between the evidence he gave at trial and his signed police statement, including that he told police that the grader was travelling at approximately 10 km - 15 km an hour. In this regard, Mr Kellow stated that when he was travelling behind the grader going up the hill, prior to reaching the intersection, that estimation of travel speed was probably correct.
It was also put to Mr Kellow that in his police statement he asserted that there were a few cars banked up behind him, whilst in evidence at trial he stated that there were no vehicles behind him. Mr Kellow conceded that he may have said that to police, but his recollection was that there were no vehicles banked up at the time of the collision.
Mr Kellow conceded in cross-examination that his evidence that the plaintiff's vehicle was hit from the front by the grader, having viewed the photographs of the damage sustained by the plaintiff's vehicle, was an inaccurate reconstruction on his part.
Mr Kellow was also cross-examined in relation to his statement to police in which he described the grader having pulled over partially into the turning lane to allow faster-moving traffic to pass safely. Mr Kellow clarified by stating in evidence that the grader did not pull completely into the turning lane elaborating as follows:[1]
[1] ts 50 - ts 53, 8 September 2021.
---You wouldn't say there was quarter of the grader in the turning lane or half the grader in the turning lane.
COUNSEL: Well, can I suggest to you that the - the grader was actually in the turning lane?---You can suggest it.
COUNSEL: Not true?---Not true.
COUNSEL:It was more in the - certainly more in the lane than you have indicated. It was not simply the wheels on that dashed line. It was in the lane?---The wheels were on the line or just off it.
…
COUNSEL:Okay. The - the plaintiff says that the grader was in the slip lane turning. That's correct, isn't it?---No, cos I was in the slip lane when they hit.
In re-examination, Mr Kellow gave evidence that when he turned into the slip lane the grader was travelling south as he went up alongside it. Mr Kellow was asked whether he was required to position the wheels of his vehicle onto the gravel or over the left-hand white line in order to travel alongside the grader and he said no.
Evidence of the defendant
The defendant was 70 years old at the time of the accident and gave evidence that he had spent most of his life driving a grader as part of his vocation.
On the day in question, the defendant gave evidence that he had been performing Main Roads work and he was proceeding south towards Albany. He estimated that he was travelling at approximately 48 km per hour when approaching the intersection of Piesseville‑Tarwonga Road. The defendant stated that as he approached the intersection, he observed the plaintiff's vehicle depart from the intersection moving into his pathway. He applied his brakes 'very hard' and swung to the left‑hand side articulating the grader in order to ensure that it did not tip over and in an attempt to avoid a collision with the plaintiff's vehicle. Articulating the grader resulted in reducing its speed approximately by half. The defendant gave evidence that when a grader is articulated it takes the steering away from the driver. When the defendant articulated the grader its speed reduced to approximately 25 km per hour.
The defendant gave evidence that if he were to turn the grader left into Piesseville-Tarwonga Road, whilst travelling at 48 km per hour, the turn would have caused the grader to tip over, potentially onto the plaintiff's vehicle.
The defendant gave evidence that despite taking these measures the grader nevertheless 'clipped the back' of the plaintiff's vehicle. The defendant stated that the right-hand steerer wheel of the grader collided with the right-hand rear of the plaintiff's vehicle. At the time of the collision, the defendant gave evidence that he had the four cab lights and head lights on for safety. The defendant stated that no indicator light was on as he approached the Piesseville‑Tarwonga intersection.
It was put to the defendant in cross‑examination that as he approached the intersection he pulled to the left to allow traffic to pass. He rejected that proposition. The defendant gave evidence that the grader, being a machine that is 3.5 m wide, ordinarily sits on the side of the shoulder of the road.
The defendant was questioned in cross-examination regarding contemporaneous details he had recorded of the accident in his diary and in particular a note which stated that as he approached the turn off he pulled to the left to allow a road train and traffic to pass on his right. The defendant gave evidence that he could not recall that.
It was put to the defendant that as he travelled down the highway towards the intersection, traffic was banked up behind him and therefore he pulled over into the slip lane to allow it to pass. This was a proposition which he rejected.
The defendant gave evidence that shortly prior to the plaintiff's vehicle moving away from the give way line, the left‑hand tyre of the grader was on the broken white line to the left. The defendant gave evidence that the only time that the grader was physically located inside the slip lane was when he articulated the vehicle in an attempt to avoid impacting the plaintiff's vehicle.
The defendant gave evidence that following the collision the grader continued to drive through and came to a stop past the intersection on a grassed section.
The defendant gave evidence that the dirt or gravel depicted in photographs 3 and 4 of exhibit 1 may have come off the grader at the point of collision but he was uncertain as to what part of the grader, whether the counterweight on the front or off the blade.
Principles
The principles governing a claim in negligence between two motor vehicles are governed by a combination of common law and the Civil Liability Act 2002 (WA) (CLA).
It is of course well established that one motorist owes another a duty to take reasonable care to avoid reasonably foreseeable risks.
In relation to when a breach of this duty of care arises, s 5B(1) of the CLA provides:
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
It is not contentious that harm in the form of personal injury and/or damage to property arising as a result of the collision of two motor vehicles in circumstances where one vehicle moves into the pathway of another is both a foreseeable risk and one that is not insignificant.
It was also not in issue at trial that the plaintiff owed a duty of care to give way at the Piesseville‑Tarwonga Road/Albany Highway intersection to traffic passing through the intersection in the southbound and northbound lanes of Albany Highway.
It was also not in contention at the trial that the grader, if positioned in the left slip lane, pursuant to reg 73 of the Road Traffic Code 2000 (WA), and given the traffic lane arrows indicate a single direction applying to the lane, was required to drive in that direction.
The onus of course rests on the plaintiff to establish the negligence of the defendant in this trial on the balance of probabilities.
Disposition
Factual findings
It became clear at trial that the credibility and reliability of the witnesses would be a central matter.
In relation to credibility, in my view, each of the witnesses did their best to recall an accident that occurred just over four years prior to trial. It was an accident of course that none of them were anticipating or expecting to occur and which was over in a matter of seconds.
I do not have any reservations in relation to the credibility of each of the witnesses. However, as will become apparent, I do have concerns in respect of the reliability and/or accuracy of the plaintiff's evidence, which in material respects was contradictory to the consistent evidence of both the defendant and the only independent eyewitness, Mr Kellow.
Whilst the plaintiff was no doubt recounting to the best of his ability his recollection as to the accident and the manner in which it took place, in my view his evidence was tainted by a number of key assumptions he made that day, which were unfortunately erroneous, and which has resulted in a degree of reconstruction.
I accept the plaintiff's evidence that he approached the intersection of Piesseville‑Tarwonga Road and Albany Highway and then brought his vehicle to a standstill at the give way line. I also accept the plaintiff's evidence that he checked a number of times, albeit within a matter of seconds, as to the approaching traffic in both the southbound and northbound lanes of Albany Highway awaiting a safe opportunity to commence his right turn onto Albany Highway. I accept his evidence that just prior to leaving the intersection the defendant's grader was a few metres away and that there was no other traffic passing in the northbound and southbound lanes. This is entirely consistent with the defendant and Mr Kellow's evidence. I accept the defendant's evidence that the grader was travelling approximately 48 km per hour.
However, I do not accept as reliable or accurate the plaintiff's evidence that the defendant's grader was in the left turning slip lane with its left indicator activated indicating an intention to turn left. In my view, the flashing lights that the plaintiff observed were the cab lights described by the defendant in his evidence which are permanently displayed whilst driving the grader for safety reasons.
The defendant gave credible and unwavering evidence under cross‑examination, which I accept, that at no time was the grader in the slip lane and nor at any time was the grader indicating to turn left. The defendant gave credible evidence that the grader, being approximately 3.5 m wide, is always driven by him at the shoulder of the road as both a safety precaution and as a courtesy to other road users. However, the defendant was adamant that the grader was not inside the slip lane.
Indeed there was no need for the grader to pull into the left slip lane to allow for traffic to pass as he approached the intersection given that based on the evidence of all three witnesses, including the plaintiff, there was no traffic passing the grader at that time. In this regard, the plaintiff asserted in his evidence (which I accept other than in the respect of the grader) both lanes on Albany Highway were entirely free of traffic, rendering it a safe course of action for him to depart from the intersection and commence a right turn into Albany Highway.
In relation to the position of the grader, the defendant's evidence was in my view entirely consistent with the evidence of Mr Kellow. Mr Kellow gave evidence that the left wheel of the grader was slightly over the white line but certainly the grader had not entered into the left slip lane. He approximated that it was perhaps 5% in the slip lane (namely on the white line or slightly over it) and 95% positioned in the southbound lane. Mr Kellow was very clear that this was the case because he stated that his vehicle was in fact in the slip lane as the grader approached the intersection and he had a clear unobscured line of sight of the plaintiff's vehicle as it proceeded to move onto Albany Highway. I accept Mr Kellow's evidence in this regard.
In addition, clearly as a matter of common sense, Mr Kellow would not have had an unobstructed line of sight and clear vision of the plaintiff's vehicle if, in accordance with the plaintiff's evidence, the grader was positioned directly in front of him in the slip lane. In fact, Mr Kellow gave evidence that his vehicle was entirely positioned in the slip lane with no need for it to even be partially on the shoulder of the road, which would have been the case if the grader was positioned in any significant degree inside the slip lane.
Indeed, a critical omission in the plaintiff's evidence in my view is the fact that he did not see and was completely unaware of Mr Kellow's vehicle when he made the decision to proceed onto Albany Highway, despite the unchallenged evidence of Mr Kellow that he was travelling down the slip lane at the time.
The grader is clearly a large heavy vehicle and at the time was travelling at approximately 48 km per hour. I accept the defendant's evidence, who was an extremely experienced grader driver at the time of the accident, that he took all reasonable precautionary action he could in the circumstances in order to attempt to avoid collision with the plaintiff's vehicle. He immediately applied the brakes of the vehicle and articulated so as to prevent the grader from overturning and potentially causing much more serious damage. In so doing, the defendant was able to reduce his speed from 48 km per hour to 25 km per hour.
Whilst there was no expert evidence before me as to an analysis of the likely point of impact of the vehicles, I find consistent with the witnesses evidence, that the point of impact was approximate to the cross on photograph 1 of exhibit 1 annotated by Mr Kellow. That is, the mid/rear of the plaintiff's vehicle was approximate to that location with the front of the vehicle therefore necessarily protruding into the southbound lane. Namely, given that the point of impact was approximate to the white line demarking the southbound lane, the front of the plaintiff's vehicle must, as a matter of necessity, have been proceeding into the southbound lane. This finding is consistent with the plaintiff's evidence that the impact occurred at that approximate location, the fact that the plaintiff's vehicle was damaged on the mid/back section and the plaintiff's evidence that he had commenced a right turn onto Albany Highway and was accelerating.
If the defendant's grader had been positioned inside the slip lane as alleged by the plaintiff, articulating it would therefore have necessarily veered it to the left out of the left slip lane and into the shoulder of the road, likely avoiding the plaintiff's vehicle entirely. In my view, the ultimate positioning of the grader, with the undisputed fact that it had been articulated which caused it to swerve left, is inconsistent with a factual finding that it was positioned inside the slip lane at the time that it was articulated.
I accept the defendant's evidence that he took the only means available to him to dramatically reduce the speed of the grader quickly and to simultaneously avoid tipping it over.
Determination of liability
The plaintiff has therefore failed to discharge the onus, on a balance of probabilities, that the accident was caused by the negligent driving of the defendant and in particular:
(a)failed to establish that the defendant failed to indicate his intention to move from the southbound slip lane onto Albany Highway, on the basis of the factual finding that the defendant was not in the southbound slip lane;
(b)failed to establish that the defendant indicated an intention to execute a left-hand turn onto Piesseville-Tarwonga Road when he intended to move back onto Albany Highway, on the basis of the factual finding that the defendant did not indicate an intention to execute a left-hand turn and was not positioned inside the left-hand slip lane;
(c)failed to establish that the defendant changed lanes when it was unsafe to do so, on the basis of the factual finding that the defendant did not change lanes;
(d)failed to establish that the defendant failed to stop, steer, swerve or otherwise manoeuvre the grader so as to avoid colliding with the plaintiff's vehicle, on the basis of a factual finding that the defendant took all reasonable precautions to avoid the collision including by immediately braking the grader and articulating it in order to significantly reduce its speed whilst simultaneously ensuring that it did not tip over;
(e)failed to establish that the defendant failed to apply the brakes of the grader sufficiently or at all, on the basis of a factual finding that the defendant immediately applied the brakes and articulated the grader which reduced its speed by half; and
(f)failed to establish that the defendant was travelling at a speed that was excessive in the circumstances, on the basis of a factual finding that the grader was travelling at approximately 48 km per hour in a zone allowing for speed up to 110 km per hour.
In conclusion, I find that the plaintiff was wholly negligent in causing the accident. The plaintiff had an obligation to give way to the defendant before proceeding to leave the give way demarcation on Piesseville-Tarwonga Road. The plaintiff failed to do so, on the basis of an error of judgment made by him, that the grader was indicating an intention to turn left when it was not.
Orders
The parties are to file consent orders within 14 days reflecting the above disposition and in relation to costs and otherwise liberty to apply is granted.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LF
Court Officer
15 DECEMBER 2021
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