Rodman v Kerber

[1991] TASSC 177

Serial No B63/1991
List “B”

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Rodman v Kerber [1991] TASSC 177; B63/1991

PARTIES:  RODMAN, Peter
  RODMAN, Margrave
  v
  KERBER, Linton Marcus

FILE NO:  206/1990
DELIVERED ON:  11 October 1991
JUDGMENT OF:  Underwood J

Judgment Number:  B63/1991
Number of paragraphs:  7

Serial No B63/1991
File No 206/1990

PETER RODMAN, MARGRAVE RODMAN v LINTON MARCUS KERBER

REASONS FOR JUDGMENT  UNDERWOOD J

(Delivered Orally)  11 October 1991

1. I should observe at the outset, that I regard all the witnesses who gave evidence as honest and doing their best to give a completely accurate account of events that took place over a second or two nearly two years ago. In fact, there is very little difference between the four accounts given in evidence. There was little dispute about the following primary facts and I so find.

(1)About 3.45 on the afternoon of 28 October 1989, the plaintiffs were travelling north in Wellington Street, Launceston heading for the centre lane that crosses over its intersection with Howick Street. Their speed was between about 50 and 60 kmh. The traffic lights were showing green in their favour as the plaintiffs' vehicle approached.

(2)The defendant was stationary in Wellington Street waiting to turn right into Howick Street and facing south. He was there quite a little time in order to give way to traffic travelling in the opposite direction. The defendant's vehicle was waiting in the right turn lane, but past the stop line across that right turn lane in Wellington Street, that is, almost on the centre of the intersection.

(3)When the green light turned amber, the plaintiffs were some distance back from the intersection. The defendant estimated this to be in the order of 60 metres and his wife 55 metres, but I find they are mistaken as to these distances.

(4)Both vehicles proceeded across the intersection whilst the amber light was displayed. With respect to this finding, I should add that Mrs Kerber's evidence is confined to the proposition that the defendant started to move while the amber light was displayed but, where her evidence differs in this respect, I prefer the evidence of the other three witnesses and the agreed admissions made to a police officer by the two drivers. I accept the submission made by Mr Law that there was an element of reconstruction, albeit honest reconstruction, in the evidence of Mrs Kerber.

(5)I find that the point of impact was in about the centre of Howick Street and in about the centre of the two lanes available for north bound traffic in Wellington Street.

(6)The plaintiffs' vehicle hit the defendant's vehicle square on, about the middle or slightly to the rear of the defendant's centre post, passenger side.

1. The first named plaintiff's account was that, when he was about five metres or so back from the stop line, the lights turned to amber and, being too close to stop easily, he decided to proceed across the intersection. He did not then see the defendant who must have been plainly within his vision, stationary in the middle of the road. His first sighting of the defendant's car was as it was moving to its right. The first named plaintiff immediately slammed on his brakes but was unable to avoid the impact. Had he been keeping a proper lookout, the first named plaintiff would have seen the defendant's vehicle, been alert to the danger that it might make the manoeuvre that it did make, and slowed to accommodate this risk. His failure to do so was a breach of the duty of care the first named plaintiff owed the defendant.

1. The defendant said that he saw the plaintiffs' vehicle when it was about 60 metres away and his wife confirmed this, as about 55 metres. At this time the lights turned to amber, and in his judgment he had time to pass in front of the plaintiffs' vehicle which he expected to stop. I find that he and his wife are in error when they judge that distance to be in the order of 50 – 60 metres and I make that finding on the following basis.

1. From the facts not really in dispute, it is clear that the defendant's vehicle travelled no more than about 1 to 1½ car lengths from its stationary position to the point of impact, the last part of this short distance was under acceleration. In the short time this manoeuvre must have taken, the plaintiffs' vehicle, under heavy braking at the last moment, could not have travelled between 50 and 60 metres or thereabouts, at a speed which was not disputed as being not in excess of 60 kmh. This, of course, is equal to a maximum speed of 16.6 metres per second and, although I do not espouse the production of a slide rule in a case such as this, that gives an indication that if the defendant's account is accurate, about 3 seconds or so would have elapsed while the plaintiffs' vehicle travelled to the point of impact and of course that could not have been the case, having regard to the very short distance the defendant moved.

1. I find that the defendant made an error of judgment with respect to the relative positions of his and the plaintiffs' car when he started off from his stationary position and the error was causative of the damage sustained.

1. The defendant was not entitled to move across the path of an oncoming vehicle upon an assumption it would stop. The defendant carried the primary duty of giving way to oncoming vehicles and given my finding that both vehicles were moving over, or in the plaintiffs' case, onto the intersection whilst the amber light was showing, the defendant must bear the major responsibility for the accident. However, as previously mentioned, if the first named plaintiff had been keeping a proper lookout, the accident may have been avoided and that breach of duty contributed to the damage sustained by all the parties to this action.

1. I apportion liability as to 80% against the defendant and 20% against the first named plaintiff. As it has just been agreed that, for the purpose of this proceeding, at all material times the first named plaintiff was the agent of the second named plaintiff and driving within the course and scope of his agency, I order that on the claim there will be judgment for the plaintiff in the sum of $4,512.80 and on the counter–claim, judgment for the defendant against both plaintiffs in the sum of $473.44.