Reeday v Butler
[2007] WADC 142
•31 AUGUST 2007
REEDAY -v- BUTLER [2007] WADC 142
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 142 | |
| Case No: | CIV:1461/2006 | 13 AUGUST 2007 | |
| Coram: | MULLER DCJ | 31/08/07 | |
| PERTH | |||
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for plaintiff reduced by 20 per cent for contributory negligence | ||
| PDF Version |
| Parties: | CAROLINE REEDAY WAYNE EDWARD BUTLER |
Catchwords: | Negligence Collision between two motor cars when one motorist turned across path of the other at traffic controlled intersection Dispute as to which driver had right-of-way Negligence of driver turning into intersection Contributory negligence of other motorist |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
WAYNE EDWARD BUTLER
Defendant
Catchwords:
Negligence - Collision between two motor cars when one motorist turned across path of the other at traffic controlled intersection - Dispute as to which driver had right-of-way - Negligence of driver turning into intersection - Contributory negligence of other motorist
Legislation:
Nil
Result:
Judgment for plaintiff reduced by 20 per cent for contributory negligence
(Page 2)
Representation:
Counsel:
Plaintiff : Mr K S Pratt
Defendant : Mr B C Sierakowski
Solicitors:
Plaintiff : Trewin Norman & Co
Defendant : Brian C Sierakowski
Case(s) referred to in judgment(s):
Nil
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1 MULLER DCJ: In this action the plaintiff is claiming damages from the defendant for injuries the plaintiff sustained in a motor vehicle accident at the intersection of Ravenswood Drive, Mirrabooka Avenue, Nollamara Avenue and Yirrigan Drive on 17 March 2005. Liability was the only issue at the trial.
2 At about 12.15 pm on 17 March 2005 the plaintiff was driving her motor vehicle, a Daewoo Hatchback Sedan, in the left hand lane of Ravenswood Drive in an easterly direction towards the intersection of Ravenswood Drive, Nollamara Avenue and Mirrabooka Avenue. Her mother was a passenger in the front seat and her 3-year-old child was in the back seat. The plaintiff intended to travel straight through the intersection into what becomes Yirrigan Drive on her way home to Noranda. The intersection is controlled by several sets of traffic lights positioned at the eastern end of Ravenswood Drive, the western end of Yirrigan Drive, the northern end of Nollamara Avenue and the southern end of Mirrabooka Avenue. The sequential operation of the traffic lights was explained by Murray James Cocking who was a traffic engineer officer with the Main Roads Department. He described how the traffic signals are automatically adjusted to react to the volume of traffic passing through the intersection. The timing of the various light sequences varies according to the traffic flow at any given time. The phasing of the lights also varies to cater for vehicles passing directly through the intersection and those turning north and south from Yirrigan Drive and Ravenswood Drive. Among the relevant phases are those which allow traffic travelling east in Ravenswood Drive and west in Yirrigan Drive to proceed directly through the intersection while traffic travelling north and south in Nollamara Avenue and Mirrabooka Avenue are required to remain stationary on a red light. A directional arrow also operates to allow drivers travelling in both Yirrigan and Ravenswood Drive to turn north and south into Mirrabooka Avenue and Nollamara Avenue. This directional turning arrow turns green at the same time as the main traffic lights for vehicles travelling straight through the intersection in Yirrigan Drive and Ravenswood Drive. It remains green for as long as the flow of cars in the turning lane continues up to a pre-set maximum time of about 35 seconds. When this time lapses the directional arrow turns to amber and then to red. The main traffic light for vehicles travelling straight through the intersection in both Yirrigan Drive and Ravenswood Drive remain on green. About four seconds after the red directional arrow has been activated it turns off completely. This permits drivers in the turning lanes in both Yirrigan Drive and Ravenswood Drive to turn north and
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- south into Mirrabooka Avenue and Nollamara Avenue provided there is no oncoming traffic.
3 On 17 March 2005 the lights were in working order. The plaintiff approached the intersection at a speed she estimated to be approximately 60 kilometres per hour. The traffic lights at the intersection were in her favour and she intended travelling directly through the intersection into what becomes Yirrigan Drive. When she was approximately 4-5 metres from the stop line in Ravenswood Drive she saw another vehicle which had obviously approached the intersection from the east in Yirrigan Drive turn rapidly across her path heading north towards the Mirrabooka Avenue side of the intersection. She braked immediately but was unable to stop. The left front bumper of her car collided with the left rear wheel arch of the other vehicle. After the impact the plaintiff's car came to a standstill in the same carriageway in the middle of the intersection. The driver of the other vehicle completed his turn to the north and stopped on the verge in Mirrabooka Avenue. After the plaintiff's mother had checked on her child in the back seat the plaintiff started her car again and turned left into Mirrabooka Avenue to pull up behind the other vehicle involved in the collision. She exchanged details with the other driver who told her that another car at the back of his vehicle had forced him to turn into the intersection by pushing the rear of his car and sounding his horn. The plaintiff said the other driver actually pointed out another vehicle that passed them in Mirrabooka Avenue as the one that had pushed his vehicle from behind.
4 The plaintiff's account was supported to some extent by the evidence of her mother, Gloria Churchill, who was a passenger in the front seat of the car. She said that as her daughter approached the intersection in the kerbside lane the traffic lights were green. She said she thought her daughter was travelling about 60 kilometres per hour as she approached the intersection. She said she did not recollect seeing any other car in the intersection until she heard her daughter exclaim that she was going to hit another vehicle. It was then that she saw another vehicle in the intersection immediately in front of the vehicle she was in. She said she recalled the lights were green because, being a driver herself, she distinctively looked at them as her daughter's vehicle approached the intersection.
5 The defendant's account of the accident was quite different. He said he had been driving a near new Corolla Hatch west in Yirrigan Drive towards the intersection. He intended turning right or north into Mirrabooka Avenue but had to stop in the right hand turning lane because
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- the traffic lights were red. His vehicle was the second in line and there was another vehicle ahead of his. While he was waiting for the directional arrow to turn green he felt a slight bump to the rear of his car. He said he assumed the vehicle behind his had bumped the rear of his car although, when he later checked, there was no sign of any damage. When the directional arrow turned green the defendant said he turned into the intersection following the car in front of him and had almost completed his turn when he felt a slight impact to the rear of his car. He continued with his turn and stopped in Mirrabooka Avenue. He said he tried to flag down a motorist who went past believing it was the car that had nudged his vehicle while he was stationary at the intersection. He went on to describe how he then got out of his car to examine the damage. He found no damage at all to the rear of his car and only slight damage to the left rear wheel arch. This damage is shown on the photograph, Exhibit 5. The damage to the plaintiff's car was just as slight. The photograph, Exhibit 4, shows a blackened area on the left front panel and what appears to be a cracked headlight. After the plaintiff stopped her vehicle in Mirrabooka Avenue the defendant said he exchanged personal details with her. He said he did not tell her he had been forced forward at the intersection by the car behind him bumping into the rear of his vehicle. He said in cross-examination he never thought the vehicle behind had nudged his vehicle because the driver wanted him to turn into the intersection. He explained that thought had never occurred to him because there was a car ahead of his in the right hand turn lane and the light was red.
6 Either the plaintiff or the defendant is clearly mistaken as to what occurred at the intersection. One of them must have gone through a red light. I certainly found the plaintiff to be a straightforward and compelling witness. She seemed to have good recollection of the incident and did not try to embellish her account in any way. On her evidence she clearly had right of way and the defendant either went through a red traffic light or turned across her path when it was unsafe to do so. The only reservation I have about her evidence lies in the extent of the damage to the two vehicles. If, as she claimed, she was approximately 5 metres from the stop line in Ravenswood Drive when she saw the vehicle turning across her path, and that she was travelling at about 60 kilometres per hour at that point in time, it seems almost inevitable that the impact would have been far more severe and the damage to both vehicles considerably more than what actually occurred. On her own evidence she only became aware of the vehicle turning across her path when it was approximately 17-19 metres in front of her car. With that very short distance within which to brake it is almost inconceivable she could have slowed to a point
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- where the impact was really so minimal. The evidence of her mother really did not carry the matter any further.
7 Turning to the account given by the defendant I was, as with the plaintiff, impressed by the manner in which he gave his evidence. He seemed to have a good recollection of what happened and gave his evidence in a straightforward and balanced manner. What is of major concern, however, was a statement he made to the police on the day following the accident. In a handwritten report relating to the collision he said:
"I was travelling west and turning right onto Mirrabooka Avenue off Yirrigan Drive, Mirrabooka. Almost through my turn on the green arrow a red car (CJR 767P) clipped the rear of my car. The red car was travelling east. I was bumped into just prior to turning by the vehicle behind trying to hurry me along. They did not stop."
8 I have already referred to the defendant's cross-examination where he said he never believed the car behind him had nudged his vehicle to persuade him to get a move on and enter the intersection. His evidence on this point was materially inconsistent with what he told the police. It is clear in the statement he made to the police on the day following the accident that he did hold that very belief. What I find even more disconcerting, however, was his denial in evidence that he told the plaintiff that the vehicle behind him at the intersection had pushed him forward and that the driver had sounded the horn. Unless she had learnt this by reading the defendant's traffic report to the police – and there is no evidence that she did – the plaintiff could never have known of this unless the defendant had told her at the accident scene as she claimed he did.
9 The defendant's explanation of the initial bump while he was stationary at the intersection, and his belief as to what caused it or what its purpose might have been, was totally unconvincing. At one point he said he believed a pedestrian might have bumped the rear of his car and at the same time said he even thought it might have been an animal. Even when he eventually concluded it must have been the car behind him he still denied ever having thought the driver of that car wanted to hurry him along and move into the intersection. That evidence, of course, was entirely inconsistent with the handwritten statement he made to the police.
10 I believe this inconsistency is material. Its materiality is such as to lead me to conclude that the defendant may not be an altogether reliable
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- witness. I am not for one moment suggesting he is dishonest or has deliberately given misleading evidence. I believe his memory of events may be suspect and that he has genuinely forgotten what he said to the plaintiff at the roadside after the collision.
11 The defendant does admit his vehicle was nudged from the rear by the car behind him when he was stationary at the intersection. Whatever his belief may be now I am satisfied he did tell the plaintiff at the roadside after the accident that the vehicle behind him had pushed him forward and had sounded his horn. It is impossible to explain or disregard this conflict in his evidence. In the end it has caused me to have real doubt as to the accuracy of his account.
12 That is not to say that the plaintiff's version is without its blemishes. I have already referred to the very minor damage done to both vehicles and to the improbability of the plaintiff's account that she was doing 60 kilometres per hour and only applied her brakes 4-5 metres from the stop line when the defendant's car turned very quickly in front of her. If, as the plaintiff has asserted, she went through a green light and only saw the defendant's car at the last moment I cannot understand why the impact was not a lot more severe. But I do not think that is fatal to the plaintiff's claim. It is possible that she was doing less than 60 kilometres per hour as she entered the intersection and that her speed at the point of impact was very low. It is also feasible that her act of braking might have slowed her vehicle to the point where the impact was minimal. In the end I am satisfied that her account, though not without its inherent difficulties, is the more plausible of the two and that it is more probable that the accident occurred in the way she said it did. I find, on the balance of probabilities, that the lights at the intersection immediately prior to the accident were in a green mode for the plaintiff as she entered the intersection. In the light of that finding it follows that the defendant did not have a green arrow indicating that it was safe to turn right. I am satisfied either that the right hand turn arrow was either red or that there was no right hand display at all which meant that he could only turn right if it was safe to do so and there was no oncoming traffic and it was safe to do so.
13 In his Defence the defendant pleaded that the plaintiff was negligent in that she failed to have any regard for the presence of the vehicle driven by the defendant as it was turning right into Mirrabooka Avenue from Yirrigan Drive and that she failed to keep a proper lookout. The plaintiff conceded that she only saw the defendant's turning car when she was approximately 4-5 metres from the stop line in Ravenswood Drive. She conceded the defendant's vehicle had already begun its turn into the
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- intersection when she first saw it. The photographs of the intersection show that she would have had a clear view of the intersection from a considerable distance to the west as she travelled towards it. Had she been keeping a proper lookout she undoubtedly would have seen any vehicles, including that of the defendant, either approaching or stationary at the traffic lights on the Yirrigan Drive side of the intersection. I believe it is significant that she did not see the defendant's car until the last moment. Had she been keeping a proper lookout it is reasonable to assume she would have seen it earlier either as it approached the intersection or began its turn. Had she been keeping a proper lookout she would have had a greater opportunity to see the turning vehicle earlier, appreciate the danger and slow down or, if necessary, bring her own vehicle to a standstill. As it was the impact was very slight and, had she been keeping a proper lookout and brought her vehicle to a standstill earlier, it is reasonable to assume that a collision might have been avoided altogether. Given this finding it follows that the plaintiff, through having the right of way, contributed by her own conduct to the accident that occurred. In my view her contribution to the accident was in the order of 20 per cent.
14 I find that the defendant's negligence was the cause of the collision but that due to her own contribution the plaintiff is only entitled to recover 80 per cent of any damages that might be agreed upon or assessed.
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