Paterson v Motor Accidents Insurance Board

[1990] TASSC 150

Serial No B73/1990
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Paterson v Motor Accidents Insurance Board [1990] TASSC 150; B73/1990

PARTIES:  PATERSON, Nicholas Peter
  v
  MOTOR ACCIDENTS INSURANCE BOARD

FILE NO/S:  922/1981
DELIVERED ON:  16 November 1990
JUDGMENT OF:  Green CJ

Judgment Number:  B73/1990
Number of paragraphs:  12

Serial No B73/1990
List "B"
File No 922/1981

NICHOLAS PETER PATERSON
v MOTOR ACCIDENTS INSURANCE BOARD

REASONS FOR JUDGMENT  GREEN CJ

16 November 1990

1. The plaintiff claims damages for personal injuries caused by the negligent driving of Clifford Charles Bosworth. The action was originally commenced against Mr Bosworth but he died after the action had been commenced and an order was made by consent substituting the Motor Accidents Insurance Board for Mr Bosworth as the defendant. An order has been made that the issue of liability be determined before any other issue.

1. I find that on 27 August 1981 at about 1.15 p.m. the plaintiff was riding his motor cycle in a southerly direction on the East Tamar Highway towards the intersection of that highway with what is referred to in the pleadings as Rocherlea Road but which is in fact Lilydale Road. At the same time Mr Bosworth was driving a motor vehicle in a northerly direction on the East Tamar Road and was about to turn or had commenced turning to his right into Rocherlea Road. The plaintiff fell or was thrown off his motor cycle, slid along the road and struck Mr Bosworth's motor vehicle. It was raining lightly at the time but I am not satisfied that the visibility of either the plaintiff or Mr Bosworth was materially impaired. The road surface was wet.

1. I accept the plaintiff's evidence that on the day of the accident he left his home at Dilston and commenced riding his motor cycle towards Launceston on the East Tamar Highway but that he has no further memory of the events of that day until he was in hospital. I find that the plaintiff was on the day of the collision familiar with a course of action known as "dropping" the motor cycle which motor cyclists take as a last resort when confronted with the possibility of a collision. The action involves the rider deliberately locking the brakes so that the motor cycle slides and falls and is taken when the rider believes that any injuries which he might suffer from the fall are likely to be less serious than those which he would suffer were he to collide with a motor vehicle.

1. I find that prior to the collision Mr Brian Barrett was driving a motor vehicle in the same direction as the plaintiff but some distance behind him. Mr Barrett gave evidence about the events leading up to the collision and the collision itself. Mr Barrett said that as the plaintiff approached the intersection he slowed down and moved towards the left hand side of the road but Mr Barrett did not see the plaintiff give any signal indicating an intention to turn left. He saw the plaintiff come off his motor cycle and slide along the road and strike the motor vehicle. As might be expected after this lapse of time Mr Barrett's evidence as to the movements of Mr Bosworth's motor vehicle prior to the collision was initially a little confused. However during his cross examination Mr Barrett was prepared to affirm the truth of particular statements he made to the police the day after the accident that as he saw the plaintiff sliding down the road he became aware of a motor vehicle which I find was the vehicle being driven by Mr Bosworth "starting to turn right" into Rocherlea Road, that at that time "the nose of the car was just across the centre line" and that the motor vehicle was still moving when the plaintiff struck it.

1. Mr Bosworth gave answers to interrogatories which included an assertion that the contents of a statement he had made to the police were true. Those answers and the statement include admissions by Mr Bosworth that he was driving his motor vehicle on the East Tamar Highway intending to turn right into Rocherlea Road. At the moment when he first saw the plaintiff's motor cycle it was about one chain away from him sliding along the road and Mr Bosworth's motor vehicle was travelling at about 5–10 mph in a generally easterly direction. Mr Bosworth said that the plaintiff ended up under his car and that his car was in the southbound lane when it came to rest.

1. I see no reason not to accept both Mr Barrett's evidence and the admissions made by Mr Bosworth to which I have referred.

1. I find that as the plaintiff approached the intersection Mr Bosworth commenced turning right into Rocherlea Road and that he travelled some distance into the lane in which the plaintiff was travelling. I find that it is probable that it was in fact the case or alternatively that Mr Bosworth's actions led the plaintiff to reasonably believe that it was the case that Mr Bosworth was about to drive his motor vehicle across the southbound lane in front of the plaintiff. In the absence of any other evidence which would explain how the plaintiff came to leave his motor cycle and upon the basis of the inferences which I am prepared to draw from the facts which I find are established by the evidence and by the answers to the interrogatories I find it probable that the plaintiff, believing that a collision was imminent, took some sort of evasive or other action which resulted in him falling off or being thrown off the motor cycle either because he lost control of it or because he had deliberately "dropped" his motor cycle in the manner which I have already described.

1. I find that the plaintiff's belief that Mr Bosworth was about to travel across his path and that a collision was likely was a reasonable belief and that a reasonable person confronted with the situation with which the plaintiff was confronted would have regarded the taking of action which involved the risk of coming off the motor cycle as reasonable.

1. I find that Mr Bosworth ought to have foreseen that there was a real risk that his action in turning right across the path of the plaintiff's motor cycle might cause the plaintiff to take action which would expose him to the risk that he might come off the motor cycle and be injured.

1. I do not find it necessary to determine the admissibility of some correspondence which was tendered by the plaintiff.

1. I am satisfied that the plaintiff suffered personal injuries as a result of Mr Bosworth's negligent driving. Upon the evidence before me I am not satisfied that it has been shown that the plaintiff suffered any injuries as a result of his own fault.

1. There will be judgment for the plaintiff for damages to be assessed.