| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : RODRIGUES -v- ALIIVAA [2010] WADC 152 CORAM : SCOTT DCJ HEARD : 10 AUGUST 2010 DELIVERED : 14 OCTOBER 2010 FILE NO/S : CIV 1000 of 2009 BETWEEN : ANGELA RITA RODRIGUES Plaintiff
AND
JORDAN ALIIVAA
Defendant
FILE NO/S : CIV 1237 of 2009 BETWEEN : JORDAN ALIIVAA Plaintiff
AND
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Defendant
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Catchwords: Motor vehicle collision – Liability only – Negligence and contributory negligence – Turns on own facts Legislation: Fatal Accidents Act 1959
Motor Vehicle (Third Party Insurance) Act 1943 Result: CIV 1000 of 2009 - Plaintiff succeeds on liability
CIV 1237 of 2009 - Plaintiff's claim dismissed Representation: CIV 1000 of 2009 Counsel:
Plaintiff : Mr B G Bradley
Defendant : Mr D R Clyne
Solicitors:
Plaintiff : Bradley Bayly Legal
Defendant : Simon Walters
CIV 1237 of 2009 Counsel:
Plaintiff : Mr D R Clyne
Defendant : Mr B C Sierakowski
Solicitors:
Plaintiff : Simon Walters
Defendant : Brian C Sierakowski
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Case(s) referred to in judgment(s):
British Fame (Owners) v Macgregor (Owners) [1943] AC 197
Nance v British Columbia Electric Railway Co Ltd [1951] AC 601
Pennington v Norris (1956) 96 CLR 10
Tebbit v Dunne & Allianz Australia Insurance Limited [2009] QCA 86
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1 SCOTT DCJ: At or about 4 pm on 7 May 2006, a collision occurred between a Toyota sedan registered number 1AIR 557 (the Toyota) being driven by Derrick Rosario Rodrigues and a Nissan coupe registered number 1AUY 191 (the Nissan) being driven by Jordan Aliivaa.
2 Mr Rodrigues was driving the Toyota in a southerly direction in Karel Avenue, Leeming and was endeavouring to complete a right hand turn into Hartfield Crescent. Hartfield Crescent and Karel Avenue form a T-junction in which Karel Avenue is the continuing road. 3 Mr Aliivaa was driving the Nissan in a northerly direction in Karel Avenue towards that intersection. As Mr Rodrigues endeavoured to negotiate the right hand turn into Hartfield Crescent, the Nissan collided with the left hand side of the Toyota. 4 Mr Rodrigues sustained severe injuries in the collision and subsequently died, as a result of those injuries, on 19 May 2006. 5 Mr Aliivaa also sustained injuries as a result of the collision. In action 1000 of 2009, Mr Rodrigues' widow, Angela Rita Rodrigues, brought an action against Mr Aliivaa pursuant to s 9(1) of the Fatal Accidents Act 1959. 6 In action 1237 of 2009, Mr Aliivaa brought an action against the Insurance Commission of Western Australia pursuant to s 7(2) of the Motor Vehicle (Third Party Insurance) Act 1943. 7 The only issue at this trial was one of liability. 8 There is an inherent inconsistency in the stance taken by the Insurance Commission in its defence to Mrs Rodrigues' claim in action 1000 of 2009 where it acts as the insurer of Mr Aliivaa and in its defence of Mr Aliivaa's claim in action 1237 of 2009 where it acts on its own behalf. 9 The matter was raised by me at the commencement of the trial. Notwithstanding the inconsistency, counsel for the parties were in agreement that the determination by me of liability, including any finding as to contributory negligence, would dispose of the issues of liability in each case. 10 An aerial photograph upon which the distances between various roads intersecting with Karel Avenue were endorsed by Mr Williams of Blights Investigations (exhibit 1), 51 photographs (exhibits 2.1 and 2.2) (Page 5)
and an edited report from Mr Williams (exhibit 2.3) were admitted into evidence by consent.
Topography 11 Karel Avenue runs north – south. There are two marked lanes on each side of a medium strip. At the intersection of Karel Avenue and Hartfield Crescent there is, for vehicles travelling in a northerly direction in Karel Avenue, a slip road to facilitate a left turn into Hartfield Crescent. 12 The speed limit in Karel Avenue from the intersection at Farrington Road to Hartfield Crescent is 70 km per hour.
Issues 13 In her claim against Mr Aliivaa, Mrs Rodrigues alleges that Mr Aliivaa: (a) drove at an excessive speed; (b) failed to keep any or any proper lookout; (c) belatedly veered his vehicle from the median lane (right hand lane for vehicles travelling in a northerly direction) to the left lane of Karel Avenue and overtook a slower moving vehicle as he approached the intersection with Hartfield Crescent without first checking that the road ahead was clear of traffic; and (d) failed to brake, manoeuvre, steer or otherwise control the Nissan so as to avoid the collision. 14 In that action, Mr Aliivaa in his defence denied the allegations of negligence and pleaded that he was at all times travelling within the speed limit and at a safe speed in the circumstances and says further that the collision was caused solely by the negligence of Mr Rodrigues in that he: (a) failed to keep any or any proper lookout; (b) failed to drive the Toyota with any or any proper control; (c) drove the Toyota at a speed which was excessive in the circumstances; (d) failed to brake in time to avoid the collision; (e) failed to steer or control the Toyota so as to avoid the collision; (Page 6)
15 In action 1237 of 2009, Mr Aliivaa as plaintiff recited sub-paragraphs (a), (b), (c), (d), and (e) above but did not recite the allegations of negligence on the part of Mr Rodrigues referred to in sub-paragraphs (f), (g) and (h). 16 By its defence in action 1237 of 2009, the Insurance Commission denied that Mr Rodrigues was negligent as alleged and further or alternatively said that the collision was caused solely or in part as a result of Mr Aliivaa's negligence which in the main reflected the particulars of negligence relied upon by Mrs Rodrigues in action 1000 of 2009. In addition the Insurance Commission asserted that Mr Aliivaa drove the Nissan at a speed of at least 120 km per hour in Karel Avenue towards the intersection with Hartfield Crescent and failed to have or have any sufficient regard for his own safety.
Evidence 17 Mrs Rodrigues said that she and her husband had been to a church function and were returning to their home in Leeming. She was driving her Toyota Corina immediately behind the Toyota being driven by Mr Rodrigues. 18 She said that the Toyota stopped in the gap in the medium strip in Karel Avenue whilst oncoming traffic passed. She and Mr Rodrigues intended to complete a right hand turn into Hartfield Crescent. 19 She said that she saw a white vehicle in the median lane of Karel Avenue which appeared to be about 100 m away. The median lane being the right hand lane for vehicles travelling north. She said that the white vehicle appeared to be travelling at a normal speed, being the speed limit of 70 km per hour. 20 She said that she suddenly noticed the Nissan pull out from behind the white vehicle at high speed. She said that the Nissan was travelling much faster than the oncoming traffic which had passed the Toyota and her vehicle and much faster than the approaching white vehicle. She said that the Nissan appeared to be accelerating as it passed the white vehicle. (Page 7)
21 She said that when she first saw the Nissan, it was about 50 to 60 m away. By that time she said that the Toyota had started to move off and was already in the median lane. 22 She said that she did not see the Nissan behind the white vehicle and did not see it until it changed lanes. 23 She said that it was only a few seconds between the time that she saw the Nissan pull out from behind the white vehicle and the collision. 24 She said that the Nissan was 'flying' and that it was going excessively fast. 25 She said that the white vehicle passed the intersection after the collision and kept on going. 26 She said that from where she was stopped in Karel Avenue, she could see clearly down the left hand lane of Karel Avenue (for vehicles travelling north) which she said was completely clear. 27 She said that she could see about 100 to 120 m in a southerly direction in the median lane. 28 She was referred to a photograph numbered 31. This was a photograph taken from a position north of the gap in the median strip in Karel Avenue facing south. There was no evidence of the date upon which that photograph was taken. When it was put to her in cross-examination that from the gap in the median strip one can see for at least 200 m down both lanes in Karel Avenue right up to Beasley Road, Mrs Rodrigues said that she could not see down the median lane that far. She said that the foliage shown in photograph 31 had, by the time that photograph was taken, been cut back. 29 The difficulty with photograph 31 is that it does not depict the line of sight of Mrs Rodrigues from her vehicle which she said was behind Mr Rodrigues' vehicle. 30 Nor does it necessarily depict the line of sight which Mr Rodrigues had given that he was in the driver's seat of the Toyota which was in the gap in the median strip in preparation to negotiate the turn into Hartfield Crescent. 31 Mrs Rodrigues denied that the Nissan was being driven in the left hand lane of Karel Avenue before it passed the white vehicle in the (Page 8)
median lane. She maintained that she could see a significant distance south in the left hand lane which she said was clear. 32 Mr Timothy Brade gave evidence that he entered Karel Avenue from Farrington Road and travelled in the left hand lane in a northerly direction. He said that his vehicle was travelling a little over the speed limit, perhaps 75 km per hour. 33 He said that the Nissan was being driven in the median lane just ahead of him. He thought that he knew some of the occupants in the Nissan so he drove up to within about half a car length of the Nissan before he realised that he was mistaken. He was then close to the intersection of Westminster Road and Karel Avenue. 34 Mr Brade said that the Nissan then accelerated away from his vehicle. He said that he maintained a speed of about 75 km per hour. He said that he lost sight of the Nissan. 35 He said that there was a dip in Karel Avenue at about the intersection with Beasley Road. He said that just before Beasley Road he was able to see over the dip. 36 He said that as he approached Beasley Road the intersection at Hartfield Crescent came into view at which time he saw the Toyota spinning out of control. 37 He said that when he first saw the Toyota spinning, it was travelling across the left hand lane in Karel Avenue towards where it ultimately came to rest. He said that it was totally out of control. It had by then obviously been struck by the Nissan. 38 Mr Aliivaa gave evidence. 39 He said that he was driving the Nissan with his ex-girlfriend in the front passenger seat and his 5-year-old daughter in the back seat, behind his ex-girlfriend. They had been to the shopping centre off Farrington Road. 40 He said that he drove down Farrington Road towards the intersection with Karel Avenue and stopped at the red lights. 41 When the lights turned green, he turned into the left hand lane in Karel Avenue and travelled north. He said that because a number of cars in front of his were travelling at less than 70 km per hour he changed lanes to the median lane. (Page 9)
42 He said that as he approached Beasley Road traffic was stopped and there were a number of cars banked up in the median lane. As a consequence he again changed lanes to the left hand lane. 43 He said that he continued in the left hand lane and as he approached the intersection with Hartfield Crescent, he noticed the Toyota parked in the median strip just about to turn into Hartfield Crescent. 44 He said that when he was roughly 10 m or less from the Toyota, it suddenly pulled out in front of him. He did not have any time to brake or do anything and collided with the Toyota. 45 He said that he was at the time, travelling at the speed limit of 70 km per hour. 46 He said that the only other vehicle in the vicinity was a motorbike which was behind him but travelling in the median lane and was pulling up beside the Nissan at high speed. 47 He denied that he was travelling in the median lane after Beasley Road. He said that when he changed lanes prior to Beasley Road, he was travelling just below 60 km per hour because the vehicles in front had slowed down. 48 He denied that, as the Nissan approached Hartfield Crescent, it was travelling in excess of 120 km per hour. 49 He said that when he first saw the Toyota his vehicle was roughly midway between Beasley Road and Hartfield Crescent.
Findings 50 I accept the evidence of Mr Brade. He was an independent witness who I consider gave his evidence candidly. He had no interest in the outcome of these two actions. 51 As to his evidence, I find as follows. After his vehicle and the Nissan turned from Farrington Road into Karel Avenue his vehicle was travelling in the left hand lane and Mr Aliivaa's vehicle was travelling in the median lane. He endeavoured to draw alongside the Nissan because he thought he knew some of the occupants. 52 He drew within about a half a car length of the Nissan and at that time his vehicle was travelling at about 75 km per hour. He continued to maintain that speed as he drove north in Karel Avenue. (Page 10)
53 The Nissan then accelerated away from his vehicle at a point near to the intersection of Westminster Road and Karel Avenue. Shortly thereafter, he lost sight of the Nissan and did not see it again until after the collision occurred. 54 The intersection with Hartfield Crescent came into his view when his vehicle drove out of the dip just before Beasley Road. It was at that time he saw the Toyota spinning, seemingly out of control in the left hand lane. 55 Mr Williams calculated that the distance between Westminster Road and Beasley Road was 258.8 m and the distance between Beasley Road and Hartfield Crescent was 211 m. 56 This means that in the time that it took Mr Brade's vehicle to travel approximately 260 m at 75 km per hour, the Nissan had travelled a further 210 m or so. Not far short of double the distance. 57 As far as the evidence from Mrs Rodrigues is concerned she was understandably traumatised by the sight of her husband's vehicle being involved in this collision and for her, the events took place within a very short time frame. 58 She said that when her vehicle was stationary behind the Toyota, she could not see more than about 120 m in a southerly direction in the median lane. She said that she did not see the Nissan until such time as it accelerated past the white vehicle. 59 Unfortunately, there was no evidence as to the position, or the location and angle, of the Toyota when it was stationary before it commenced the turn towards Hartfield Crescent. Nor was there evidence of the location and angle of the vehicle being driven by Mrs Rodrigues when she was stationary behind the Toyota. 60 What Mrs Rodrigues could see of the northbound traffic in the median lane may well not have been the same as or similar to the line of sight of Mr Rodrigues. 61 She did however give evidence that the left hand lane for north bound traffic was clear and that she could see a far greater distance south along the left hand lane than she could in the median lane. I accept her evidence in that regard. Her evidence that she could see that the left hand lane was clear was not shaken. (Page 11)
62 I am satisfied that the Nissan was travelling in the median lane before it changed lanes to pass the white vehicle in front of it at the point where Mrs Rodrigues first saw the Nissan. 63 I accept Mrs Rodrigues' evidence that when she saw the Nissan pull out from behind the white vehicle into the left hand lane, the Nissan was only 50 to 60 m from the point of the collision. By that time her husband had already commenced to turn across Karel Avenue and the Toyota was in the median lane. 64 I accept that when the Nissan pulled out from behind the white vehicle in the median lane as Mrs Rodrigues described it, it accelerated and was travelling at a speed far in excess of the white vehicle and of other vehicles which Mrs Rodrigues had observed travelling north in Karel Avenue at a speed she estimated to be the speed limit. Her evidence is consistent with and derives support from the evidence of Mr Brade. 65 I accept her evidence that the white vehicle passed the intersection with Hartfield Crescent after the collision had occurred. 66 I did not find the evidence of Mr Aliivaa to be reliable. He said that the Nissan was at all times travelling at a speed no greater than 70 km per hour and, at some point near Beasley Road, it had slowed to less than 60 km per hour. 67 If that was the case, having accepted the evidence of Mr Brade, the Nissan could not at any time have drawn ahead of Mr Brade's vehicle between Westminster Road and the point of the collision given that Mr Brade maintained a speed of 75 km per hour. 68 I am satisfied that the Nissan, over a distance of about 470 m, reached a speed such that by the Hartfield Crescent intersection, it had covered about 210 m more than had the vehicle being driven by Mr Brade. I reject Mr Aliivaa's evidence as to the speed he was travelling after Westminster Road. 69 On the basis of simple mathematics, the speed reached by the Nissan must have been substantially in excess of the speed limit. 70 Accepting as I do the evidence of Mr Brade and Ms Rodrigues I am satisfied that when the Nissan passed the white vehicle and when it collided with the Toyota it was travelling at a speed substantially in excess of the 70 km per hour speed limit. Even taking into account the difficulty in estimating speed where the estimation is made in a short time (Page 12)
frame as is the case here, I think it likely that the speed of 120 km per hour estimated by Ms Rodrigues is not unreasonable. 71 I accept Ms Rodrigues' evidence that she first saw the white vehicle when it was about 100 m south in the median lane. I am satisfied that the white vehicle was seen by Mr Rodrigues before he commenced to turn across Karel Avenue. He had already waited for vehicles to pass and so he must have been able to see a distance sufficient to make a judgment to allow those vehicles to pass before negotiating Karel Avenue. 72 I am satisfied that when Mr Rodrigues commenced to drive across Karel Avenue, a reasonable person in his position would not have perceived the white vehicle to pose a threat to him such that there was a need to give way to it. 73 That there was no evidence that the driver of the white vehicle had to slow or take evasive action to avoid the Toyota and passed through the Hartfield Crescent intersection after the collision occurred, supports that finding. 74 The Nissan was only 50 to 60 m away from the point of collision when Mr Aliivaa changed lanes at substantial speed. 75 There was then no time for Mr Rodrigues to take any evasive action to avoid the collision. By the time that the Nissan passed the white vehicle it was too close to the Toyota for the collision to be avoided. 76 I am satisfied that the material cause of this collision was the manner of driving of Mr Aliivaa in changing lanes when he did and driving his vehicle at a speed which, on any reasonable estimation, was far in excess of the speed limit and in all of the circumstances unsafe.
Contributory negligence 77 The question which then arises is whether Mr Rodrigues was contributorily negligent as Mr Aliivaa, in the alternative, alleges. Although not pleaded, the issue of contributory negligence was dealt with by the parties at trial. 78 A finding on a question of apportionment as between a defendant who has been found to be negligent, and a plaintiff who has been found guilty of contributory negligence, is a finding upon a 'question not of principle, or of positive findings of fact or law, but of proportion, of balance and a relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well (Page 13)
be differences of opinion by different minds': British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. 79 It involves making a finding as to whether the plaintiff failed to take reasonable care for his own safety in that his behaviour constituted a 'departure from the standard of care of a reasonable man': Pennington v Norris (1956) 96 CLR 10 at 16. It involves a consideration of the relevant importance of the conduct of each party in causing the damage (to the plaintiff). 80 Mr Aliivaa bears the onus of proving that Mr Rodrigues was negligent and that by reason of that lack of care on his part, he contributed to the injuries which he sustained in the collision (Nance v British Columbia Electric Railway Co Ltd [1951] AC 601). 81 That requires a consideration as to the circumstances in which it may be shown that when Mr Rodrigues commenced the right hand turn across Karel Avenue, the presence of the Nissan posed a foreseeable risk of colliding into the Toyota if he did not give right of way to it. It is for Mr Rodrigues of course to give way to vehicles travelling in Karel Avenue as the continuing road. 82 I am satisfied that Mr Rodrigues, before commencing to drive the Toyota across Karel Avenue, saw the white vehicle in the median lane. 83 Save for my finding that Mr Rodrigues saw the white vehicle in the median lane, there is no evidence from which I can make a finding of just how far south in the median lane he had a view. 84 The exhibited photographs do not depict his likely line of sight. As I say photograph 31, which is the photograph depicting the southerly view in the median lane, has been taken from a point back from the location of the Toyota before it commenced the turn and at an unknown height. It may therefore not be representative of Mr Rodrigues' line of sight. 85 That being the case there was no evidence from which I can make a finding as to whether before driving into Karel Avenue, Mr Rodrigues saw or should have seen the Nissan at a time when it was behind the white vehicle. Or if he did see it, or should have seen it that he was able to make any judgment as to the speed of the Nissan. 86 The evidence does not establish that a reasonable person in Mr Rodrigues' position ought to have perceived a threat from the Nissan before it pulled out from behind the white vehicle into the left hand lane. (Page 14)
By then it was only a few seconds (on the evidence of Mrs Rodrigues) before the collision occurred. 87 I am satisfied on the evidence I accept that when Mr Rodrigues commenced to drive the Toyota into Karel Avenue the only vehicle which posed a risk about which an exercise of judgment was required by him was the white vehicle in the median lane. 88 As I say, I am satisfied that when Mr Rodrigues commenced to drive across Karel Avenue a reasonable person in his position would not have perceived the white vehicle to pose a threat to him such that there was a need to give way to it. 89 In Tebbit v Dunne & Allianz Australia Insurance Limited [2009] QCA 86, the Queensland Court of Appeal there dealt with a factual scenario not unlike the scenario the subject of this matter. 90 In Tebbit the plaintiff was riding his motorcycle south along the Mackay – Bucasia Road and proceeded to make a right hand turn at an intersection. 91 The first defendant was driving a utility at a speed in excess of the speed limit when it struck the plaintiff's motorcycle. The first defendant had been travelling behind another vehicle, in the same lane as the first defendant. As the first defendant approached the vehicle in front, he changed into the left lane and accelerated into the intersection colliding with the motorcycle. 92 The Court of Appeal held that even if the plaintiff could have seen earlier that the first defendant's vehicle was accelerating towards the one in front of it, that did not necessarily mean that it was reasonable for him then to infer that the first defendant would also execute the dangerous manoeuvre that followed, vizchanging lanes and accelerating. The Court of Appeal said that the more likely and reasonable conclusion would have been that the first defendant's vehicle would slow down to match the speed of the vehicle ahead of it. 93 The Court of Appeal held that reasonable care for his own safety did not require the plaintiff to anticipate the first defendant's last second surge of high speed from behind the vehicle in front of it and into the intersection which the plaintiff was then leaving. 94 In that case, the Court of Appeal did not disturb the trial judge's findings that in those circumstances there was no contributory negligence. (Page 15)
95 Of course, every case requires a determination on its merits and much care must be taken when comparing factual scenarios. There will no doubt be cases in which a person intending to negotiate a right hand turn as did Mr Rodrigues, may have an opportunity of assessing a vehicle travelling at speed behind another vehicle approaching him. And a reasonable man may well perceive there to be a risk that instead of that vehicle slowing down to match the speed of the vehicle in front of it, the driver of it may change lanes at speed which may then require the person to refrain from entering the intersection until the extent of that risk became known. 96 In this case however, I am not satisfied on the evidence that Mr Rodrigues saw or ought to have seen the Nissan as it travelled in the median lane, or even if he did or ought to have done that he could have perceived that the Nissan was travelling at an excessive speed and would thereby pose a risk to him in changing lanes rather than remaining behind the white vehicle. 97 I am not satisfied that Mr Aliivaa has discharged the onus of proving that Mr Rodrigues was contributorily negligent. 98 In my view the collision was caused wholly as a result of Mr Aliivaa's negligence.
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