Sharifi v Hunt
[2007] WADC 103
•21 JUNE 2007
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL |
| LOCATION | : PERTH | ||
| CITATION |
| ||
| CORAM | : WAGER DCJ | ||
| HEARD |
| ||
| DELIVERED |
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| FILE NO/S |
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| BETWEEN | : HOUSHMAND SHARIFI |
Plaintiff
AND
ANNE-MARIE HUNT
Defendant
| FILE NO/S | : | CIV 945 of 2006 |
| BETWEEN | : HOUSHMAND SHARIFI |
Plaintiff
AND
JOSEPH ANTHONY SANDON
Defendant
Catchwords:
Negligence - Motor vehicle accident - Liability only in issue - Turns on its own facts
[2007] WADC 103
Legislation:
Nil
Result:
964 of 2005 - Judgment for plaintiff
945 of 2006 - Plaintiff's claim dismissed
Representation:
CIV 964 of 2005
Counsel:
| Plaintiff | : | Mr K S Pratt |
| Defendant | : | Mr D R Clyne |
Solicitors:
| Plaintiff | : | Trewin Norman & Co |
| Defendant | : | Kakulas & Kakulas |
CIV 945 of 2006
Counsel:
| Plaintiff | : | Mr K S Pratt |
| Defendant | : | Mr J P W T Olivier |
Solicitors:
| Plaintiff | : | Trewin Norman & Co |
| Defendant | : | Talbot Olivier |
Case(s) referred to in judgment(s):
Mickelberg v Director of the Perth Mint [1986] WAR 365
Nelligan v Mickan and Mickan [1998] SASC 6935
[2007] WADC 103
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WAGER DCJ: Mr Houshmand Sharifi, the plaintiff in both actions in this trial, was the driver of a car that was involved in a motor vehicle accident on 6 June 2004.
2 The defendant in action number 945 of 2006, Mr Joseph Sandon,
was driving directly behind Mr Sharifi's car and avoided colliding into the rear of Mr Sharifi's car by veering on to a sandy embankment on the left side of the roadway. The defendant in action number 964 of 2005, Ms Anne-Marie Hunt, was driving a car behind Mr Sandon's car. Her car collided with the rear of Mr Sharifi's car. Given the related nature of the two proceedings, the matters were joined for the purpose of receiving evidence. The assessment of damages is agreed and the issue in both matters relates to liability.
3 The collision occurred at approximately 5 o'clock, p.m., on a squally,
dark Sunday when the rain was very, very heavy. Puddles had formed on the road and the drivers had very limited visibility. Mr Sharifi was driving in a northerly direction on Alexander Drive in Malaga, in the outside lane of the two northbound lanes, proceeding towards the intersection of Marangaroo Road. The intersection is controlled by traffic control lights and a slip lane to exit to the left when driving north commences approximately 100 metres from the intersection. Mr Sharifi's Mitsubishi vehicle ended up stationary but on a 45 degree angle to the left-hand side kerb, blocking the outside lane as a result of heavy braking and skidding in the wet conditions. Mr Sandon saw Mr Sharifi's car swerve and stop. He took evasive action by veering his Commodore from the left-hand lane to the sandy embankment on the left-hand side, adjacent to the roadway. The effect of the sand was to slow and eventually stop Mr Sandon's vehicle.
4 Ms Hunt was driving her Nissan Pulsar behind Mr Sandon's
Commodore. After Mr Sandon's car mounted the sandy embankment Ms Hunt's car collided with the rear passenger's side of Mr Sharifi's car. The collision caused damage to both vehicles. Both drivers sustained physical injuries as a result of the collision.
5 Mr Sharifi pleads that Mr Sandon swerved to the sandy embankment
because he failed to keep a proper lookout and was driving too fast in the circumstances. It is pleaded that as a result of Mr Sandon's negligence in failing to apply his brakes sufficiently or at all Ms Hunt was unable to observe Mr Sharifi's vehicle in sufficient time and was therefore unable to avoid colliding with the rear of Mr Sharifi's vehicle. Mr Sandon pleads
[2007] WADC 103
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that he was not negligent and that driving on to the sandy embankment
was an appropriate evasive action in the circumstances.6 Mr Sharifi pleads against Ms Hunt that she failed to keep a proper
lookout and was driving at an excessive speed in the circumstances. He pleads that the collision was caused by her negligence in that she failed to apply her brakes sufficiently or at all and failed to stop, steer or swerve her car to avoid the collision once Mr Sandon had driven on to the sandy embankment and her car was directly behind Mr Sharifi's vehicle in the left-hand lane.
7 Ms Hunt pleads that she was not negligent and counterclaims that the
collision was due to Mr Sharifi's negligence because he stopped his car diagonally across the left-hand lane and failed to apply hazard lights or other lights to warn other drivers that he had stopped in this manner. She further claims that he failed to keep his vehicle under control and that he was driving without due care and attention.
8 All three vehicles were moved soon after the collision. There is no
evidence of the precise location of the vehicles or the mechanical condition of the vehicles at the time of the collision. Photographs showing the subsequent damage to Mr Sharifi's vehicle and Ms Hunt's vehicle were taken at another location.
9 Although each witness has estimated distances, speeds and the
location at which the accident occurred, the dark, stormy, wet conditions at the time of the collision did not provide any of the witnesses with an opportunity to clearly view the scene. All parties involved in the collision were shocked and distressed immediately after the collision occurred.
The Plaintiff's Case – Mr Sharifi
10 Mr Sharifi gave evidence that he is a 47-year-old student who speaks
English as his second language. He has held his motor driver's licence in Australia for 7 years and had held a licence in Iran, his country of origin, for 22 years. He had taken his wife for a driving lesson in his car earlier that day and both she and his son confirmed that the car was mechanically and electrically in good working order on the day. They also confirmed that it was Mr Sharifi's practice generally to illuminate the headlights when driving.
11 Prior to the collision Mr Sharifi was driving alone and had turned the
vehicle north onto Alexander Drive after being at the Malaga Markets. He says he believed that he had turned his headlights on because it was
[2007] WADC 103
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his practice to do so and because the weather conditions were so stormy and dark. He also believed that the street lights were operating at the time. Given the terrible weather conditions, Mr Sharifi could only see the road directly in front of him and estimates that distance to be a visibility of about 10 metres.
12 Mr Sharifi claims that a car in front of him braked or stopped and he
assumed that the car braked because of other traffic ahead of it waiting at the lights ahead. He cannot remember how or where the car in front stopped, but says that he braked when he saw that the brake lights of the car in front were illuminated. Given that he attempted to stop suddenly by braking in wet conditions, his car skidded and ended up on an angle with the front wheels facing the kerb of the outside lane.
13 Mr Sharifi's evidence was very vague in relation to the circumstances
of the accident. He claims that his memory is poor because of the 3 years that have elapsed from the date of the accident until the date on which he gave evidence in Court. He also says that his memory is impaired because he lost consciousness as a result of the collision and because of medication he has taken for the injuries he sustained, however no medical evidence was led to support this. Although his evidence is limited in relation to the reasons why he was required to stop his vehicle so suddenly, he does not dispute that his car ended up on a 45 degree angle to the kerb.
14 Mr Sharifi says that once he was stationary he noticed Mr Sandon's
car in his rear view mirror and watched it drive past onto the sandy verge to the left of his vehicle. He states that it was after Mr Sandon's car had passed him to the left at speed that he felt the collision to the rear of his vehicle.
15 Mr Sharifi confirmed that a police report completed by him was in
fact compiled by his English teacher. In any event he concedes that the diagram in the report does not accurately show the positioning of the motor vehicles at the time of the collision. Mr Sharifi estimated in the report that his vehicle was a distance of 100 metres from the traffic control lights at the point of collision and he maintains that estimate in his evidence.
16 In cross-examination Mr Sharifi confirms that he had admitted a
breach of an infringement notice issued contrary to reg 187 Road Traffic Regulations in relation to being parked or stopped in a roadway without having the vehicle's lights illuminated. He asserts that he had written and
[2007] WADC 103
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hand delivered a letter to the Warwick police explaining that he had his lights on and that he had not committed the infringement. He confirms that he did not defend the infringement in court and paid a fine of $50. His decision to pay the fine was, he asserts, a decision of convenience. In evidence Mr Sharifi acknowledges that he had admitted the infringement, but states that he did not know that the admission was important in the context of these proceedings. He states that the car in front that had caused him to brake remained in front of him for one-half to one minute before he took evasive action. He concedes that his memory of events both immediately prior to and at the time of the collision is incomplete.
Defendant's Evidence – Mr Sandon
17 Mr Sandon, a 29-year-old self-employed cabinet maker, was driving
a 1998 Holden Commodore behind Mr Sharifi's vehicle, and travelling north in the outside left-hand lane of Alexander Drive. His heavily pregnant wife was in the front passenger's seat at the time. Mr Sandon describes how Mr Sharifi's car swerved to the right and then immediately to the left over a distance that he estimates to be one to two metres. Mr Sharifi's car had stopped at a 45 degree angle to the kerb on the left-hand side after dropping from a speed of approximately 60 kilometres per hour to zero over a distance of approximately two metres. Mr Sandon made a comment "Look at this guy" to his wife when Mr Sharifi's vehicle swerved to a halt. Mr Sandon estimates that his car was five to six metres behind Mr Sharifi's car when he noticed that Mr Sharifi's car was swerving. Mr Sandon asserts that he kept his eye on the road but veered when his wife called out "Stop".
18 Immediately prior to taking evasive action Mr Sandon estimates that
he was driving at a speed of approximately 60 kilometres per hour in what he believed was a 70 kilometre per hour zone. He was driving under the speed limit because of the weather conditions and because of his concern for his wife's pregnancy. Mr Sandon was very familiar with the area and aware of the sandy embankment so that when he realised that Mr Sharifi's car was blocking the left-hand lane, he veered on to the embankment to the left of that lane. Mr Sandon states that his vehicle slowed before he mounted the kerb, however he denies that he had applied his brakes. He states that he did not apply his brakes because of his concern that his vehicle would skid due to the wet conditions and he feared for his wife's safety if this occurred. Mr Sandon estimates that his car's speed dropped to 20 or 30 kilometres per hour once he had mounted the kerb and that the car came to a stop to the left but approximately 1.5 metres behind the front of Mr Sharifi's car. Once the car was stationary on the verge
[2007] WADC 103
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Mr Sandon heard his wife scream and then heard the bang of the collision between Ms Hunt's car and Mr Sharifi's car. Mr Sandon had noticed lights from a car in his rear view mirror and estimates that the collision occurred 15 to 20 seconds, or, at least not in a split-second, after his vehicle was stationary. Mr Sandon ran between the two damaged vehicles after the collision occurred to check on the drivers. He estimates that the collision occurred at a distance of 100 to 200 metres from the intersection of Alexander Drive and Marangaroo Road opposite a bus bay on the left-hand side. He noticed that there were big pools of water on the road when he went to assist the drivers.
Mr Butler
19 Mr Butler, an insurance assessor, gave evidence that he had recently
measured the distance from the bus bay referred to by Mr Sandon to the traffic control lights at the intersection of Alexander Drive and Marangaroo Road and, using his speedometer only, estimated the distance to be 0.4 kilometres.
Mrs Sandon
20 Mrs Sandon gave evidence that at the time of the collision she was
heavily pregnant and seated in the front passenger's seat of the Commodore. She describes the traffic conditions as being not overly busy but nor were they light. She cannot remember if the streetlights were on, however she recalls clearly that the weather was very dark and stormy.
21 Mrs Sandon could see that there was a car driving in front of her
husband's Commodore and she estimates that the Commodore and the vehicle in front were travelling at similar speeds. She describes how all of a sudden the car in front swerved to the left when the Commodore was about 10 metres or four to five car lengths behind it. After swerving to the left the car in front came to a sudden stop on an angle. Mrs Sandon does not recall seeing the headlights of Mr Sharifi's car, however she agrees that Mr Sharifi's vehicle's headlights could have been illuminated. She did not see big red brake lights at the rear of Mr Sharifi's vehicle and she inferred that the headlights were not illuminated because red lights were not showing to the rear.
22 Mrs Sandon screamed out "Stop" when she saw that the car was
stationary in the lane in front and her husband then drove up onto the sandbank on the verge. Her husband did not screech on the brakes, nor did she experience a big bump when he drove up onto the kerb and off the road. The Commodore became bogged when it was completely off the
[2007] WADC 103
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road. Mrs Sandon states that she could see that there were headlights behind her husband's vehicle because she looked in the side wing mirror beside her. She recalls noticing the headlights before the Commodore commenced veering to the left.
23 She agrees that she had signed a statement soon after the collision to
the effect that she could not say whether the Nissan Pulsar, being the car behind, had its lights on or not. When giving evidence, however, she was emphatic that the lights had been illuminated and she explains that her recollection of seeing lights in the wing mirror triggered and confirmed her memory of seeing headlights to the rear.
24 Once the Commodore was on the kerb Mrs Sandon heard a screech
and then a big bang. She estimates the collision occurred approximately five seconds after the Commodore had gone onto the verge. Mrs Sandon also estimates that the accident occurred approximately 100 metres south of the traffic control lights at Alexander Drive and Marangaroo Road, a distance that she describes as being a long way from the traffic control lights.
The Defendant's Evidence – Ms Hunt
25 Ms Hunt was driving her four-year-old manual Nissan Pulsar vehicle
in the left lane because she intended to turn left at the intersection of Alexander Drive and Marangaroo Road. She describes the weather conditions as being very dark and wet and recalls that the rain was driving towards her windscreen. Her vehicle's headlights, windscreen wipers and demister were all set on full.
26 Ms Hunt estimates that she was driving at a speed of 40 to
45 kilometres per hour in a 60 kilometre per hour zone when she first turned on to Alexander Drive. Another driver on the road flashed their headlights at her and she believes that this meant that the driver was unhappy with the slowness of her speed. After seeing the flashing lights three or four cars passed her vehicle leaving two cars driving behind her car. Ms Hunt was driving at a slower speed and using greater caution than usual because of the severe weather conditions.
27 Ms Hunt recalls that the Commodore motor vehicle was driving in
front of her car for a distance of 400 to 500 metres along Alexander Drive before the collision. Her visibility was limited to up to two or three car lengths ahead because of the dark stormy conditions and she remembers that she was driving two or three car lengths behind the Commodore because it remained visible to her.
[2007] WADC 103
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28 Ms Hunt says that she is sure that she saw the Commodore's rear
brake lights go on. She believes that the brake lights were on for maybe a few seconds and estimates the precise time period to be about five or six seconds. Ms Hunt did not apply the brakes in her car when she saw that the Commodore's brake lights because it did not occur to her that the driver of the Commodore could be avoiding something on the road surface ahead. She saw that the Commodore veered to the left and onto the kerb and she thought that the driver may have gone off the road for some reason unrelated to the conditions on the road ahead. Ms Hunt did not put her foot on the brake, nor on the accelerator and acknowledges that she was distracted by the Commodore going off the road.
29 Once the Commodore was at least partly over the kerb she again
focused on the road ahead and saw Mr Sharifi's vehicle in her headlights for the first time. She estimates that at that point she was travelling at a speed of 48 to 50 kilometres per hour and that Mr Sharifi's car was only one to two car lengths ahead of her vehicle.
30 Ms Hunt did not believe that the headlights of Mr Sharifi's car were
illuminated, however she acknowledged that it was possible that she was mistaken about this given the angle of the front of Mr Sharifi's car in relation to the roadway.
31 Ms Hunt realised that Mr Sharifi's car was too close to her car for her
to safely brake and stop as soon as she saw it. She checked to the right to see if she could drive to the right-hand lane to avoid colliding with the stationary car. She noted that there were cars in the right-hand lane and accordingly she could not veer safely to the right lane. Ms Hunt decided to veer to the left and onto the verge by following the Commodore. She started to turn to the left, however given her speed and the short distance between her vehicle and Mr Sharifi's car she was unable to complete the manoeuvre. Ms Hunt's car collided with the left rear of Mr Sharifi's vehicle thereby setting off the airbag in her car because of the impact of the collision.
32 In evidence Ms Hunt states that she did not consider it safe to drive
on Alexander Drive in the wet conditions at 60 kilometres per hour. It was her belief that 50 kilometres per hour was a speed that was safe given the weather conditions.
Constable McKenna
33 Constable McKenna confirms that he attended the scene on
6 June 2003 after the vehicles had been moved. He recalls driving over
[2007] WADC 103
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the median strip in order to change his direction from south to north and estimates that the debris at the scene was approximately 180 metres or the length of a soccer pitch from the traffic control lights on the corner of Alexander Drive and Marangaroo Road. He did not recall a bus bay being at the location or on Alexander Drive as described by Mr Sandon.
Sharifi v Sandon
34 It is submitted on Mr Sharifi's behalf that by taking evasive action
and moving off the roadway and onto the sand verge Mr Sandon was negligent and breached his duty of care to other road users who would not have been aware of his actions and therefore could not have taken evasive action. It is submitted that Mr Sandon was driving too fast in the circumstances and failed to keep a proper lookout. It is also submitted that Mr Sandon failed to apply his brakes sufficiently or at all. The fact that Mr Sandon adopted emergency measures is, it is submitted, evidence that he breached his duty to other road users.
35 It is not disputed that a vehicle in an emergency situation is not
entitled to drive in a manner that disregards all other persons or potential traffic. In Nelligan v Mickan and Mickan [1998] SASC 6935, a case relating to a driver taking action because of an emergency situation, Olsson J said at par 43:
"…
A duty of care still exists, although the standard of care may well vary according to the particular circumstances. Much the same point was made by White J in Morgan v Pearson (1979) 22 SASR 5, where he drew attention to what was said by Napier CJ in Blight v Warman and McAllan [1964] SASR 163 at 170. The learned Chief Justice there reiterated that the driver of a vehicle in an emergency situation is not relieved of the obligation to use such care as may be reasonable in the circumstances, given that the urgency of the situation may well justify the taking of risks which would not be justified in other circumstances."
36 At the time of the collision Mr Sandon was an experienced driver
who was very familiar with Alexander Drive. He estimates that he was driving at a speed of 60 kilometres per hour being 10 kilometres below the speed limit. This speed was, in his view, an appropriate speed in light of the severe weather conditions. Mr Sandon saw Mr Sharifi's car swerve. He estimates he was five to six metres behind Mr Sharifi's car when it
[2007] WADC 103
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swerved and stopped, dropping its speed from 60 kilometres per hour to zero in a distance of two metres. I do not accept the distances estimated by Mr Sandon, however I accept that Mr Sharifi's car was the next vehicle ahead and that it stopped very abruptly. I accept Mrs Sandon's estimate that the distance between the two cars was 10 metres or four to five car lengths. This estimate is consistent with the speed of the vehicles and the time taken by Mr Sandon's vehicle to veer to the left.
37 Although Mr Sandon gave evidence that he did not brake when his
car was still on the roadway, Ms Hunt recalls observing his brake lights for a period of five to six seconds. Ms Hunt's car was directly behind Mr Sandon's car for a distance of 400 to 500 metres. Her proximity to the Commodore is corroborated by Mrs Sandon who recalls seeing Ms Hunt's headlights in the side wing mirror. Although Mrs Sandon signed a statement soon after the collision indicating that she was unsure of the position in relation to Ms Hunt's headlights, Mrs Sandon was, in evidence, able to link the headlights to the vision that she observed in the mirror. She had signed the statement on a prior occasion indicating that its contents were correct, however I accept that her recollection in evidence was accurate and that the statement was incorrect because of her ability to link the visual sighting to her side mirror in a manner that she had not explored at the time that the statement was provided. I find that Mr Sandon did brake for five to six seconds.
38 Ms Hunt estimates that Mr Sandon took seconds to drive off the road
and to complete the manoeuvre. The time taken by Mr Sandon in braking followed by the move on to the kerb provided Ms Hunt with sufficient time to brake and slow her vehicle. She should have braked so that she was in a position to anticipate or to take evasive action in the event that Mr Sandon continued to brake or drove in an erratic manner. Ms Hunt should have considered that there was a potential danger on the road ahead in light of the medium flow of the traffic on a four-lane road and the heavy squally weather conditions.
39 I reject Mr Sharifi's evidence that Mr Sandon was driving on the wet
sandy verge at speed. I accept that Mr Sandon mounted the kerb gently and was mindful of the need not to jolt or distress his heavily pregnant wife and that his car's brake lights were visible for a period of five to six seconds prior to him completing his manoeuvre to veer to the left. I find that Mr Sandon used such care as was reasonable in the circumstances given the urgency of the situation and that the manner of his driving was not negligent in the circumstances.
[2007] WADC 103
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Sharifi v Hunt
40 It is submitted on Mr Sharifi's behalf that the accident was caused as
a result of Ms Hunt's negligence in failing to keep a proper lookout, failing to apply her brakes, failing to stop, steer or swerve her vehicle and because she was driving at an excessive speed in the circumstances.
41 At an earlier point on Alexander Drive Ms Hunt was driving at
40 to 45 kilometres per hour because of the terrible weather conditions. The weather conditions were equally as terrible at the time of the collision, however she had increased her speed. Ms Hunt estimates that her speed was 48 to 50 kilometres per hour immediately prior to the collision, however she maintained her distance behind Mr Sandon's Commodore vehicle for a distance of 400 to 500 metres and her headlights were able to be observed by Mrs Sandon in the Commodore's wing mirror. Her position in relation to the Commodore is consistent with Ms Hunt driving at a speed similar to that of Mr Sandon prior to Mr Sandon braking and veering to the left. I accept that Mr Sandon was driving at a speed of 60 kilometres per hour. I find that Ms Hunt's speed was at least 50 kilometres per hour and probably slightly higher in light of the positioning of her vehicle prior to the collision.
42 Ms Hunt had earlier assumed that another driver had flashed their
headlights at her because it was that driver's view that she was travelling at a speed that was too low in the circumstances. She was also aware that three cars had overtaken her vehicle implying that she was travelling at a speed that was too slow in the circumstances. I find that Ms Hunt may have viewed the actions of the other drivers as a request that she increase her speed. The pressure to increase her speed above 40 to 45 kilometres per hour placed her in a position where she was no longer able to safely drive her vehicle in the heavy weather conditions. Although a speed of 50 kilometres per hour is below the speed limit set for Alexander Drive, the stormy dark weather conditions and the traffic conditions meant that her speed was excessive in the circumstances.
43 Ms Hunt was driving two to three car lengths behind Mr Sandon's
Commodore. She was able to see Mr Sandon's vehicle's brake lights illuminate for a period of five to six seconds before his car veered gently onto the sandy verge. The sight of brake lights ahead in heavy weather conditions should have indicated to Ms Hunt that she should slow her speed by braking in order to be prepared for potential difficulties ahead. Ms Hunt, however, decided that Mr Sandon's braking and veering from the road was not related to any potential danger ahead. She did not brake
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at all and she continued to maintain her speed of approximately
50 kilometres per hour.44 Ms Hunt acknowledges that she was distracted by Mr Sandon's
vehicle until it had almost completed its manoeuvre onto the sandy verge. It was only at that point that she paid attention to the traffic conditions ahead of her in her lane and immediately saw Mr Sharifi's vehicle in her headlights. By the time she registered his vehicle and reached a decision to brake and attempt to veer to the left she was less than one or two car lengths from Mr Sharifi's stationary vehicle. It was inevitable given the terrible weather conditions coupled with Ms Hunt's speed and her proximity to Mr Sharifi's car that a collision would occur. Ms Hunt failed to keep a proper lookout and failed to brake in sufficient time to take evasive action. She did not exercise an appropriate degree of care. Her manner of driving was, in the circumstances, negligent.
Sharifi v Hunt - Counterclaim
45 It is pleaded on Ms Hunt's behalf that the collision was partly caused
because Mr Sharifi had stopped his car in a diagonal position across the left-hand lane facing the edge of Alexander Drive and that he had failed to apply hazard lights or other lights to his vehicle to warn other drivers of the location of his vehicle. It is further pleaded that he failed to keep his vehicle under any proper control and was driving without due care and attention.
46 Mr Sandon was driving only five to six car lengths or 10 metres
behind Mr Sharifi's car when Mr Sharifi commenced swerving. Ms Hunt's vehicle was two to three car lengths behind Mr Sandon's car and all three vehicles were travelling at similar speeds. It is submitted that if Mr Sharifi had to brake because he was in a queue of traffic near to the traffic control lights, then the other stationary vehicles would have been obvious to both Mr Sandon and Ms Hunt, and therefore warned them of the need to stop. I do not accept this submission because Mr Sandon and Ms Hunt both gave evidence that, given the extreme weather conditions, their visibility was severely impaired. It is therefore unlikely that Mr Sandon or Ms Hunt would have been aware of the actions of vehicles that were car lengths ahead of Mr Sharifi's vehicle.
47 It makes little difference whether the collision occurred 100 metres
from the traffic control lights as was estimated by Mr Sharifi and Mrs Sandon or up to 180 metres or 200 metres from the traffic control lights as was estimated by Mr Sandon and Constable McKenna. I reject that the collision occurred at a bus bay measured by Mr Butler as being
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0.4 kilometres from the traffic control lights because this was twice the estimate given by Mr Sandon, yet he was the witness who referred to the bus bay. I find that the collision occurred between 100 to 200 metres from the intersection.
48 Mr Sharifi was the only witness who gave evidence in relation to the
actions of motor vehicles positioned between his car and the traffic control lights. Given the extreme weather conditions, the large puddles and the estimates given that traffic was of medium density, there are many reasons why a motorist would be required to stop in the course of driving. Although his evidence was very vague, I find that Mr Sharifi was required to slow down suddenly and as a result of slowing quickly in the wet conditions his vehicle swerved and ultimately stopped. Mr Sandon does not recall seeing brake lights on Mr Sharifi's car, yet he assessed that Mr Sharifi's vehicle went from a speed of 60 kilometres per hour to zero kilometres per hour in a distance of one or two metres. I do not accept Mr Sandon's estimate of the distance required for the vehicle to stop, however I accept that the effect of Mr Sandon's evidence was that Mr Sharifi's vehicle stopped very abruptly consistent with some braking.
49 Mr Sharifi's vehicle stopped in the left-hand lane on an angle to the
oncoming traffic that was travelling towards the rear of his vehicle. It was Mr Sharifi's evidence that it was his usual practice to turn his headlights on and, given the dark and overcast conditions on this day, he believed that he had illuminated his headlights when he left the Malaga Markets. Mr Sandon, Mrs Sandon and Ms Hunt cannot recall seeing headlights on Mr Sharifi's car, however given the road conditions and the angle of Mr Sharifi's vehicle when it stopped none of the witnesses may have been able to see the headlights clearly. If the headlights were illuminated then, given the angle of the vehicle, they would not have illuminated the roadway ahead and, given the weather conditions, would have provided limited assistance to the other road users. It is trite law that Mr Sharifi's admission that he pleaded guilty to a traffic infringement acknowledging that he had failed to illuminate the headlights of a stationary vehicle is prima facie evidence of his failure to do so (Mickelberg v Director of the Perth Mint [1986] WAR 365). English is Mr Sharifi's second language and I accept that he did not realise that it was important to defend the infringement in the context of the present trial. I find that his admission to the infringement was made because he considered it convenient to do so, rather than as an admission of guilt. I am satisfied that it is more likely than not that at the time of the collision Mr Sharifi's headlights were illuminated.
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50 It is also pleaded on Ms Hunt's behalf that Mr Sharifi's hazard
warning lights were not operating at the time of the collision and therefore she was unable to see his vehicle given that it was stationary and on an angle. All three motor vehicles were travelling close to each other at similar speeds. There were only seconds between Mr Sharifi's car ending up in a stationary position and the collision to the rear with Ms Hunt. It is unreasonable in the circumstances to expect that Mr Sharifi would have had an opportunity to activate his hazard lights in the intervening seconds before the collision. I do not find that Mr Sharifi's manner of driving contributed to the collision.
Accordingly, in the matter of Sharifi v Sandon the claim is
dismissed.
In the matter of Sharifi v Hunt, there is judgment for the plaintiff. The counterclaim is dismissed.
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