Safranek v Vilkson
[2009] WADC 191
•15 DECEMBER 2009
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SAFRANEK -v- VILKSON [2009] WADC 191
CORAM: MARTINO DCJ
HEARD: 23 & 24 NOVEMBER 2009
DELIVERED : 15 DECEMBER 2009
FILE NO/S: CIV 2648 of 2008
BETWEEN: JURAJ SAFRANEK
Plaintiff
AND
DAVID ROBERT VILKSON
Defendant
Catchwords:
Negligence - Road accident - Contributory negligence - Apportionment of liability
Legislation:
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947
Result:
Plaintiff entitled to judgment for 20 per cent of damages to be assessed
Representation:
Counsel:
Plaintiff: Mr E J Myers
Defendant: Mr P E Jarman
Solicitors:
Plaintiff: Simon Walters
Defendant: Jarman McKenna
Case(s) referred to in judgment(s):
Henrick v Kubale [2001] WASCA 274
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Pennington v Norris (1956) 96 CLR 10
Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65
MARTINO DCJ: On 26 July 2007 at approximately 3.20 pm the plaintiff, Mr Safranek, was driving a Nissan Skyline south on Selby Street, Shenton Park, approaching the intersection of Selby Street and Nash Street. The defendant, Mr Vilkson, had driven a Holden Apollo north on Selby Street to the same intersection.
Mr Vilkson intended to turn right into Nash Street. Mr Safranek intended to cross the intersection and continue south on Selby Street. Their vehicles collided at the intersection.
The intersection is a T‑junction. Leading up to the intersection Selby Street is straight and runs north‑south. Nash Street approaches Selby Street from the east and terminates at the intersection. Traffic lights control the intersection. The traffic lights facing a driver travelling north on Selby Street regulate traffic continuing along Selby Street and also have an arrow for vehicles turning right into Nash Street. That arrow can show red, amber or green or it may not be illuminated. For vehicles travelling south on Selby Street the lights regulate traffic continuing along Selby Street and also have an arrow for vehicles turning left into Nash Street. That arrow can show amber or green, or not be illuminated. The speed limit on Selby Street is 60 kilometres an hour.
Selby Street has two lanes travelling in each direction. For traffic approaching the intersection from the south a third lane, for vehicles turning right into Nash Street, commences shortly before the intersection.
Mr Safranek claims that the accident was the result of Mr Vilkson's negligent driving. Mr Vilkson denies that he was negligent and claims that the accident was caused or contributed to by Mr Safranek's negligent driving. The trial was limited to the issue of liability.
Mr Safranek's evidence
Mr Safranek is aged 22. He was born in Slovakia and migrated to Australia when he was 7. At the time of the accident he was employed as a tiler. His evidence was that on the day of the accident he had commenced work at approximately 6.30 am to 7.00 am. He finished work at approximately 1.00 pm. After work he went home, showered and had some tea. At the time of the accident he was driving from his home to a shop in Stubbs Terrace to pick up a pot plant for his mother. He had his cousin's son, Mario Safranek, in the car with him. Mr Mario Safranek lives in Slovakia.
Mr Safranek was driving his 1994 Nissan Skyline. The car was in good condition. It had a 1.5 litre turbo charged engine.
Mr Safranek was familiar with Selby Street. He had driven along it approximately once a week.
As he approached the intersection of Selby Street and Nash Street Mr Safranek was travelling at approximately 60 to 65 kilometres an hour in the kerbside lane. There were approximately three vehicles in front of him in the lane. Mr Safranek does not remember much about those vehicles. He does not remember whether or not they were slowing down to stop at the intersection.
The lights at the intersection were green as he approached them. When he was approximately three to four car lengths from the intersection the lights changed to amber. Mr Safranek changed lanes, moving from the kerbside lane into the lane nearest the centre of the road. There were differences in Mr Safranek's evidence as to whether he changed lanes before or after the traffic lights turned amber. In his evidence‑in‑chief Mr Safranek's evidence was that as he approached the intersection the traffic lights "were green, but when I was getting closer, they turned amber. So I decided to manoeuvre into the right lane and speed up to - because it was too slow – too – too late to slow down pretty much" (T9). Later in his examination in chief, when he was looking at Exhibit 1, photographs of the approach to the intersection on Selby Street, Mr Safranek's evidence was that he was in the right hand lane when the lights turned amber. Mr Safranek's evidence in cross‑examination was "I changed lanes, then the lights turned amber, then I continued to accelerate." (T28)
As soon as the lights turned amber Mr Safranek looked at his speedometer and saw that his speed was 60 to 65 kilometres an hour. He accelerated and his speed increased. He was travelling at approximately 70 kilometres an hour, and no faster, when he entered the intersection.
Mr Safranek went through the traffic lights, then he saw a car coming towards him. Mr Safranek swerved to the left, but he was not able to avoid the collision. He did not see that car until a split second before the impact. The last thing that Mr Safranek remembers is swerving to the left. His next memory is waking in hospital.
Mr Safranek does not recall seeing a red traffic light facing him. He is not sure if a red light was showing when he entered the intersection, but he does not think so as he remembers seeing the amber light only.
Following the accident Mr Safranek was charged with dangerous driving. He pleaded guilty and was fined $400. He attended court with a lawyer. He pleaded guilty because Mr Mario Safranek had returned to Slovakia and Mr Safranek believed that Mr Mario Safranek would not be able to give evidence as to how the accident occurred. Mr Safranek agreed that the accident occurred as described in the statement of material facts that was read out in court when he pleaded guilty, except that he was not travelling at 80 kilometres an hour prior to the collision.
The evidence of Mr Vilkson
Mr Vilkson is aged 27. He is employed by the Army in maintenance and supply. On the day of the accident he finished work at 3.00 pm.
Prior to the accident he was driving his Holden Apollo north along Selby Street. He intended to turn right into Nash Street and he was in the lane for vehicles to make that turn.
His evidence was that as he approached the intersection the lights facing him were green. He entered the intersection and waited for cars travelling in the opposite direction to stop. The arrow for traffic to turn right was not green. When the lights facing him were orange a car travelling in the opposite direction stopped at the intersection. That car was in the left lane and was indicating that it was going to make a left turn into Nash Street. The lights were orange when that car stopped. The lights changed from amber to red. Mr Vilkson looked at the centre lane on Selby Street. He commenced turning into Nash Street and was hit by a car coming in the opposite direction. He first saw the oncoming car a split second before the collision. He heard the car screeching first.
Mr Vilkson estimated that the light facing him was red for one second before he commenced turning into Nash Street. He did not recall seeing any vehicles behind the oncoming vehicle that stopped at the intersection. He estimated that could see probably 100 metres along Selby Street.
Mr Vilkson did not notice the oncoming car veer to the left, but he could not say that it did not do so.
It is Mr Vilkson's practice to look into a rear view mirror before turning right, and his evidence was that he did so on this occasion, but he cannot remember if a vehicle was behind him.
The evidence of witnesses to the accident
Mr Vilkson called evidence from three witnesses to the accident.
Mr Nicholas Gill was driving south on Selby Street, heading towards Nash Street. His evidence‑in‑chief was that approximately half a kilometre before the intersection he was travelling at approximately 60 to 65 kilometres an hour in the lane closest to the centre of the road when he was overtaken by a Skyline travelling in the kerbside lane.
Mr Gill continued along Selby Street. A car in front of him indicated to turn right into Shenton Park Rehabilitation Hospital and Mr Gill concentrated on that car. Then he looked up and he saw that the Skyline was in the kerbside lane heading towards the traffic lights. A car in front of the Skyline was stationary at the lights. The Skyline veered to the right and went through the intersection. The lights were red when the Skyline entered the intersection. A car that was turning right into Nash Street started to turn and the Skyline veered out to miss that car and then contacted it. There was contact between the two cars and the Skyline flicked into the air, spun, clipped a road traffic sign and ended on a bank on the side of the road. Mr Gill was approximately 30 to 40 metres from the intersection at the time.
In cross‑examination, Mr Gill was asked about a written statement he gave to a police officer on 11 September 2008. In that statement Mr Gill said that he was near the opening in the centre island which goes into Shenton Park Rehabilitation Hospital when the Skyline passed him in the left lane. The Skyline was travelling faster than 60 kilometres an hour. Mr Gill's evidence was that the entry to the hospital is approximately 70 to 80 metres before the intersection. Mr Gill acknowledged that he made the statement. His evidence was that it is possible that the statement was more accurate than his evidence‑in‑chief. Mr Gill was could not remember whether his evidence‑in‑chief or the statement were correct.
Mr Gill thought that the Skyline was going to hit the car that was stationary in the left lane at the intersection. He thought that he had included that in his police statement, but he did not do so.
Mr Victor Scurrah had driven along Nash Street to the intersection. He was stationary at the intersection, in the right lane, intending to turn right into Selby Street. The traffic lights facing him were red and he was waiting for them to change.
There was a small white car in the intersection. That car was preparing to turn right from Selby Street into Nash Street. Mr Scurrah was looking to his right along Selby Street. The traffic lights facing Selby Street changed to yellow. There was a car coming down Selby Street approaching the intersection. That car was slowing down. The traffic lights changed to red and the car that had been slowing down came to a standstill. Then Mr Scurrah's focus went back to the white car that was in the intersection. That car was stationary. The car inched forwards and then Mr Scurrah noticed a Nissan coming extremely fast down Selby Street. The Nissan changed from the right hand lane into the left hand lane and continued through the red light. The Nissan collided with the white car and was airborne in front of Mr Scurrah.
Mr Scurrah estimated that he could see two or three hundred metres up Selby Street. He first saw the Nissan when it swung out from the car that had stopped at the intersection. Mr Scurrah estimated that the Nissan was travelling at 70 kilometres an hour.
Mr Travis Lithgo was stationary on Nash Street, in the left‑hand lane, intending to turn right into Selby Street. He saw a white car in front of him, ready to turn right into Nash Street. Mr Lithgo looked right up Selby Street. There was a grey Nissan Skyline coming down Selby Street and through the traffic lights. The white car proceeded to turn through the intersection and hit the Skyline in the driver's side door, just behind the driver's side wheel arch. The white car spun around 180 degrees. The Skyline continued through the intersection and over a median strip for the left turning lane from Nash Street into Selby Street. It ended up resting across that lane and the verge.
Mr Lithgo estimated that the Skyline was travelling at approximately 80 kilometres an hour, its speed could have been as low as 70 kilometres an hour.
Damage to the vehicles
Mr Safranek's car suffered damage to the centre of the car on the driver's side. The front of Mr Vilkson's car was damaged, most of that damage was on the driver's side.
The timing of the traffic lights
Mr Safranek called evidence from Mr Kenneth Matthew, a traffic systems operations officer with the Main Roads Department. Mr Matthew gave evidence as to the operation of the traffic lights at the intersection. When the traffic lights change from green to amber they display amber for four seconds. There is then a period of two seconds when the lights show red on both Selby Street and Nash Street. I calculate that if a vehicle approaching those lights at 60 kilometres an hour was 66.67 metres from the intersection when the lights turned amber it would reach the intersection when the lights turned red, if it did not change its speed. If a vehicle approaching those lights at 70 kilometres an hour was 77.8 metres from the intersection when the lights turned amber it would reach the intersection when the lights turned red, if it did not change its speed.
Findings of fact
The fact that there are differences in the evidence of the witnesses is not surprising and does not lead me to conclude that a witness is being untruthful. A motor vehicle accident happens very quickly, it is not expected and it can be a frightening experience. There is a natural tendency to reconstruct the events of an accident and to believe that reconstruction is a memory. That is likely to have happened for every witness in this case. This affects the reliability of each witness' evidence, although each witness gave his evidence honestly and to the best of his ability.
The witnesses' evidence as to distances and speeds were estimates only. Those estimates are a guide as to what each witness observed, but they are not accurate measurements.
Mr Scurrah was the only witness who gave evidence that the Skyline moved from the centre lane into the kerbside lane immediately before the accident. I find that he is mistaken in that recollection. I accept Mr Safranek's evidence that he approached the intersection in the kerbside lane and that he changed from the kerbside lane into the centre lane very shortly before the intersection.
I accept Mr Safranek's evidence that he was travelling at approximately 60 to 65 kilometres an hour as he approached the intersection, that he accelerated shortly before the intersection and that he was travelling at approximately 70 kilometres an hour when he entered the intersection. I accept Mr Safranek's evidence that he did not see Mr Vilkson's car until a split second before the collision.
I do not accept Mr Safranek's evidence that the lights facing him turned amber when he was approximately three to four car lengths from the intersection. Mr Vilkson gave evidence that the lights facing him were red when he commenced the turn and estimated that it had been red for approximately one second before he did so. Mr Gill gave evidence that the lights were red when the Skyline entered the intersection. Mr Scurrah gave evidence that the lights on Selby Street were red before the Skyline entered the intersection. I accept their evidence. I find that the lights facing Mr Safranek were red when he entered the intersection. As the lights changed from green to amber four seconds before they changed from amber to red Mr Safranek must have been a considerable distance greater than three to four car lengths from the intersection when they changed from green to amber. I find that Mr Safranek did not notice when the lights changed from green to amber and that he did not notice that the lights were amber until he was approximately three to four car lengths from the intersection.
I find that Mr Safranek does not have a clear recollection of whether he changed lanes before or after he noticed the lights were amber. I find that he changed lanes at approximately the same time that he noticed that the lights were amber, which was when he was approximately three to four car lengths from the intersection.
I accept Mr Vilkson's evidence that he entered the intersection when the lights facing him were green. He waited for cars travelling in the opposite direction to stop. A car in the kerbside lane, which was indicating to turn left into Nash Street, stopped on an orange light. The lights changed to red. He commenced turning into Nash Street. He heard a car screeching and then saw Mr Safranek's car a split second before the collision.
I do not accept Mr Vilkson's evidence that he looked at the centre lane. If he had looked at the centre lane he would have seen Mr Safranek's car in that lane or entering that lane. I find that when he saw that the car in the kerbside lane had stopped Mr Vilkson assumed that it was safe for him to turn into Nash Street.
Mr Vilkson's evidence was that his car was struck by Mr Safranek's car. Mr Safranek did not recall the collision, the last thing he remembered was swerving to the left.
Mr Gill's evidence that the Skyline veered to miss the turning car and then contacted it is equivocal as to which car struck which. Mr Scurrah's evidence is also equivocal on that issue.
Mr Lithgo gave evidence that Mr Vilkson's car struck Mr Safranek's car. There was no expert evidence as to what conclusions can be drawn from the damage to the cars, but I conclude from that damage that the impact to Mr Safranek's car was on the driver's side and the impact to Mr Vilkson's car was to the front. The damage is consistent with Mr Lithgo's evidence. Mr Lithgo's evidence on this point was clear and specific. I accept it. I do not accept Mr Vilkson's evidence that he was hit by Mr Safranek's car.
Duty of care owed to Mr Safranek by Mr Vilkson
Mr Vilkson owed a duty of care to other drivers on the road. That duty of care is not confined to careful road users, but extends to all foreseeable road users, including bad and inattentive road users: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.
Whether Mr Vilkson was negligent
Mr Vilkson was turning across the path of oncoming traffic. Mr Vilkson's ability to observe Mr Safranek's car was restricted because Mr Safranek changed lanes so close to the intersection and entered the intersection at an excessive speed. However if Mr Vilkson had kept a proper lookout he would have seen Mr Safranek's car earlier than he did. He would have been able to stop his car and not drive into Mr Safranek's car.
Counsel for Mr Vilkson referred to a number of factually similar cases. He submitted that there was little to distinguish Henrick v Kubale [2001] WASCA 274 from this case. In that case the accident occurred when a driver turned right at an intersection controlled by traffic lights across the path of a motorcyclist who had changed lanes before the intersection and accelerated. The driver was held not to be negligent. However there are differences between this case and that case. In Henrick (supra) the driver had noticed the motorcyclist when the motorcyclist was approximately 30 to 40 metres from him and the motorcyclist rode his motorcycle into the car. In this case Mr Vilkson did not notice Mr Safranek's car until a moment before the accident and Mr Vilkson drove into Mr Safranek's car.
I find that Mr Vilkson was negligent in failing to keep a proper lookout, that if he had kept a proper lookout he would have seen Mr Safranek's car earlier than he did and that he would have avoided the accident by stopping his car and not driving it into Mr Safranek's car.
Whether Mr Safranek was negligent
Mr Safranek's conduct in accelerating as he approached the intersection, so that he entered the intersection at a speed of approximately 70 kilometres an hour was negligent. That speed was excessive in the circumstance. His conduct in entering the intersection against a red light was also negligent. Mr Safranek also failed to keep a proper lookout. If he had kept a proper lookout he would have seen the amber lights and Mr Vilkson's car earlier than he did. If he had kept a proper lookout he would have been able to stop at the intersection and the accident would have been avoided.
Apportionment of liability
The apportionment of liability requires the damages recoverable by Mr Safranek to be reduced to such extent as is just in accordance with the degree of negligence attributable to Mr Safranek. The making of the apportionment involves comparison of the degree that each party has departed from the standard of what is reasonable and the relative importance of the acts of the parties in causing the damage. The apportionment requires an examination of the whole conduct of each in relation to the circumstances of the accident: Pennington v Norris (1956) 96 CLR 10; Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65.
In my view Mr Safranek's departure from the standard of what is reasonable, and the relative importance of his acts in causing the collision, are greater than that of Mr Vilkson. Mr Vilkson stopped at the intersection. He took steps to observe the oncoming traffic before he commenced his turn. His negligence consisted in failing to keep a proper lookout for oncoming traffic. Mr Safranek failed to keep a proper lookout at the traffic lights and for vehicles turning right at the intersection. He drove at an excessive speed and entered the intersection against a red traffic light.
In my view the appropriate apportionment is that the damages recoverable by Mr Safranek should be reduced to 20 per cent of his loss. Mr Safranek is entitled to judgment for 20 per cent of his damages to be assessed.
0
4
1