Sheryl Simone McCarthy by Her Next Friend Dawn May McCarthy v Jafari

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SHERYL SIMONE McCARTHY by her next friend DAWN MAY McCARTHY -v- JAFARI [2006] WADC 77

CORAM: WILLIAMS DCJ

HEARD: 30 & 31 JANUARY & 9 MAY 2006

DELIVERED : 25 MAY 2006

FILE NO/S: CIV 156 of 2005

BETWEEN: SHERYL SIMONE McCARTHY by her next friend DAWN MAY McCARTHY
Plaintiff
AND
SAYED KAMAL HUSSAIN JAFARI
Defendant

Catchwords:

Torts - Negligence - Road accident case - Responsibility for accident - Contributory negligence

Legislation:

Nil

Result:

Defendant liable to the plaintiff for 100 per cent of her damages

Representation:

Counsel:

Plaintiff: Mr J Staude
Defendant: Mr B Goetze

Solicitors:

Plaintiff: Bradley & Bayly
Defendant: Minter Ellison

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

WILLIAMS DCJ:

Introduction

This is a trial of liability as a preliminary issue in the plaintiff's action for damages for injuries sustained in a motor vehicle accident on 12 December 2002.
The plaintiff is under a disability due to the effects of her injuries.
The plaintiff's case, to which she is unable to attest by reason of loss of memory, is that she was driving in the left lane of the north bound carriage way of Rockingham Road Munster, when the defendant who was driving a boxed van, changed lanes from right to left when it was not safe to do so, causing the plaintiff to take evasive action with the result that her vehicle left the road and travelled on the verge where it went out of control and collided with a pole.
The defendant's case is that he was travelling in the kerbside lane and that the plaintiff passed him on his left hand side and gained a position in front of the defendant in the kerbside lane. The plaintiff then lost control of her vehicle and it mounted the verge and collided with a pole.
The factual issue arises because there were four independent witnesses to the accident whose recollections differ. Two were called by the plaintiff and two were called by the defendant.
The police plan tendered as exhibit 1 indicates that section of Rockingham Road runs in a north/south direction. For northbound traffic it is a bitumen dual carriageway with the left lane being approximately 3.65 metres wide and the total carriageway being approximately 7.4 metres wide. As one drives north the speed limit changes from 90 kilometres per hour (an agreed fact) to 80 kilometres per hour and the 80 kilometres per hour signs are clearly marked at either side of the road. Beyond the 80 kilometres per hour signs, is a gravel driveway for a left hand turn into the Russell Park Industrial Estate. To the left of the marked left lane is a strip of bitumen which then adjoins a grassed verge. Also marked on the plan are tyre marks which commence in the left lane just beyond the 80 kilometres per hour sign for a distance of 41.7 metres heading towards a power pole on the grassed verge area and beyond the Russell Park Industrial Estate entrance. It is common ground that the plaintiff's vehicle struck that power pole and continued along the verge for approximately 30 metres before striking a light pole and coming to rest against that light pole.
The chart and photographs (exhibit 3) indicates that some 200 metres south of the first power pole that the plaintiff struck there is a gentle curve in the road from left to right but in the area in which the accident took place the road is straight with a gentle upward incline.

The evidence

The plaintiff is presently 25 years of age and at the time of the accident was a computer operator. She remembers nothing of the accident. Her friend Ms Ingram gave evidence that it was the plaintiff's habit to drive to work each morning along Rockingham Road including the section on which the accident occurred and then turn left at the intersection of Russell Road West which is not shown on the plan but is just north of Russell Road East which is shown on the plan.
Ms Priddy is a student nurse who was on her way to work at about 8.20 am on the day of the accident. She was driving a Ford Falcon Sedan in the left lane in a line of traffic which she described as "heavy and solid". She had just come out of the 90 kilometre per hour zone into the 80 kilometre per hour zone when she saw a small truck veer from the right hand lane to the left hand lane causing a Commodore Sedan to move on to the grass verge. Her position was that she was the third car back from the Commodore with all vehicles fairly close together. The Commodore was never in the right hand lane. The Commodore went off the road on a sharp angle, hit the grass and the driver lost control. She saw the Commodore slide and then impact with the poles. She was able to stop her vehicle at the first power pole. She did not see the truck again. She saw the truck veer to the left and the Commodore (which came out of the left lane) shoot over on to the grass. The Commodore was not out of control before it hit the grass. That was when it became out of control.
Ms Rhodes is an office cashier. At about 8.15 am or 8.20 am she was driving along Rockingham Road in the left lane travelling north in front of the Russell Road Industrial Estate. In the right hand lane some two to three car lengths in front of her was a boxed truck. A blue-green Commodore Sedan was immediately in front of her. She was driving a white Holden Barina. (I note that Ms Priddy in her evidence stated that two small white cars were in front of her and Ms Rhodes is in a vehicle which would fit that description). The driver of the truck continued to move to the left lane causing the Commodore to go off the road and collide with the two poles. Ms Rhodes pulled up and ran back but the truck kept driving. She denied that the truck was in the left hand lane before it got to the Russell Road Industrial Estate. She did not see the Commodore driving on the hard shoulder.
The defendant is a 35 year old truck driver. In 2002 he was employed by Mias Bakery delivering bread. On the day of the accident he was driving a Mias bakery truck (see exhibit 7 - photograph of truck) north along Rockingham Road approaching Russell Road and doing about 80 kilometres per hour. He was in the left lane. He saw a white car in the left hand lane and moved into the right hand lane to pass that vehicle and then back into the left lane. After what he described as "50 to 20 seconds" he saw a green car pass his truck on the left hand side. This car was not on the road at all. Then it came in front of him into the left lane and moved across to the right lane. Then the driver moved back to the left lane and then lost control of the vehicle. The vehicle went through the bush side ways and hit the pole side on. He was approximately 30 metres behind that vehicle. He was very shocked but kept on driving. His explanation was that it was not his mistake and he had to do his deliveries. When shown exhibit 3 photograph HW10 the defendant stated that in this area he was always in the left lane and the green car passed him on his left, then across to the right hand lane and back to the left lane and into the bush.
The defendant was cross-examined about the conversation he had with Sergeant Appleby at Mias Bakery on the morning of the accident. The transcript reads as follows:
" …
I'm putting to you, Mr Jafari, that - - - ? --- I never told him. You're putting it differently, no, because - - -
You can say so?--- - - you're telling me two stories because I'm telling you everything true because I don't want you - - -
…
Did you tell Sergeant Appleby that a white car passed you? --- No
…
Do you understand my question, Mr Jafari, that - - -? ---I understand it, yes.
Did you tell Sergeant Appleby that a white car passed you? ---No.
Did you tell Sergeant Appleby that you changed lanes from right to left?---Yes.
You told him that?---I said from right to left, yes.
Did you tell Sergeant Appleby that you saw a vehicle in your mirror?---Which vehicle?
…
I am putting to you what I suggest you told Sergeant Appleby? ---Yes.
…
Staude, Mr: Did you tell Sergeant Appleby that the vehicle you saw in your mirror went off the road and hit a tree or something?---Yes, I said that, yes.
So you told him that the vehicle that you saw in your mirror go off the road and hit a tree or something?---I don't understand that one. I don't get that one.
I'm asking about the conversation. I want you to try to remember the conversation that you had with Sergeant Appleby on the morning of the accident at the bakery?---Yes, I remember that.
…
Did you tell Sergeant Appleby that you saw the vehicle go off the road and hit a tree or something?---Yes, saw, yes.
Did you tell him that you saw a vehicle in your mirror? ---Yes, I saw a white vehicle in the mirror.
…
Staude, Mr: Did you think at that time when you said that to Sergeant Appleby that the vehicle may have hit a tree? ---Yes.
Did you say anything to Sergeant Appleby about the vehicle hitting a power pole--No, he didn't ask me at all.
Why didn't you if you saw it?---It's just that - he didn't ask me properly everything so - I couldn't remember. This is a long time ago also. Because I can - since then I had also accident between two and half years. I'm not working any more. I got 30 per cent disability.
You have got 30 per cent disability in you - - -?---In my hand also, yes, because I'm on medication too much. I couldn't do it properly also because that's why you're putting me too much question. I'm very confused.
I don't want to confuse you, Mr Jafari, so I apologise if that's what it had had the effect of doing. You say you have had another accident or you have had an accident yourself?---Because (indistinct) fell down with a crate for my hand. I have got a disability.
…
Do you recall the conversation that I'm talking about?---Yes, I understand everything, yes.
So you didn't tell Sergeant Appleby, did you, that you saw everything happen in front of you?---Yes, I think I saw - I told him everything.
You didn't tell Sergeant Appleby that the vehicle that you saw, the green commodore, hit a pole?---Yes, I did. I told them.
I put it to you describing to Sergeant Appleby was what you saw in your rear mirror?---(indistinct) was fast bonnet on the car - Commodore.
…"
In my view this is a wholly different account to the one given by the defendant in court and I do not accept his evidence as to how the accident occurred.
Ms Hogg is on a year's maternity leave. At the time of the accident she was driving to work on Rockingham Road. She had first noticed the plaintiff's vehicle some distance back in Ennis Road because its weaving had drawn her attention to it. When on Rockingham Road she noticed the plaintiff's vehicle behind a bakery truck in the left lane. She was travelling in the right hand lane may be three cars lengths behind. The Commodore was in the left hand lane in front of her. It was right behind the bakery truck and trying to pass it. The Commodore went to the left of the Bakery truck and just made it in front of the bakery truck and then lost control. She did not recall any vehicle in front of her in the right hand lane. At the time she considered that her speed was under 80 kilometres per hour. The bakery truck did not stop but kept on driving. She obtained the licence number of the bakery truck and rang that information through to the police.
Ms Hogg has described the plaintiff as being in front of her vehicle for some considerable distance before the accident. Ms Hogg, some 10-15 minutes later, was still only two to three car lengths back and on her evidence is travelling at less than the 80 kilometres per hour speed limit. In my view this is difficult to reconcile with her evidence that the plaintiff was weaving in and out of traffic. She also gives no evidence of being aware of the vehicles of Ms Rhodes or Ms Priddy and on their evidence they must have been there. I find difficulty in reconciling Ms Hogg's evidence with that of both Ms Rhodes and Ms Priddy.
Ms Benny is a personal assistant at the Fremantle Football Club. On the day of the accident she was travelling in a Silver Nissan Exa along Rockingham Road heading north. She was in the left hand lane. She described a truck in the right hand lane which passed her followed by a green car and behind that a small white car. The truck remained in the right hand lane and the green car and the small white car moved into the left lane in front of her. A short distance further the green car pulled in front of the truck and a few moments later appeared to bounce and swerve into the left hand lane. It then commenced to fish-tail across both lanes and hit a pole which swung it around to drive back in the wrong direction towards Ms Benny and then it hit another pole and it stopped. She described the truck that overtook her as an open tray truck like a utility that was open on the back.
When shown exhibit 7 (being photographs of the defendants truck) it was her evidence that she did not see that truck at all.
I found Ms Benny's evidence confusing in the extreme and not at all helpful and I propose to discount it when making findings of fact. Her description of how the accident occurred and the fact that she never saw the defendant's bakery truck lead me to the conclusion that I should discount her evidence.
Senior Constable Jones from Crash Investigation Section attended the scene of the accident at approximately 9.30 am. He identified the three photographs in exhibit 4 as being taken whilst he was present at the scene. Photograph 1 indicates slew marks from a vehicle sliding across grass in the northerly direction. There is some minor damage to bushes or trees on the western side of the slew marks. Photograph 2 indicates the shattered first pole which appeared to have been side swiped by the vehicle which has ended up against the second pole as depicted in photograph 3. He ascertained that the occupant had been severely injured and removed. It was his duty to mark out the scene as best he could whilst waiting for the arrival of the Major Crash Investigation Unit. He did that and the marks depicted in exhibit 3 (photograph 2) in orange paint are his markings. Senior Constable Jones walked south beyond the 80 kilometres per hour sign and there were no vehicle marks on the verge south of the driveway to the Russell Road Industrial Estate. There was no indication that the plaintiff's vehicle had travelled through that area. If it had he would have expected to see slew marks. He did not do any measurements and the scene was handed over to the Major Crash Investigations Unit. He had five years experience in traffic accidents and did not feel that speed was a major factor here.
Senior Constable Pillage was presently on 12 months leave but at the time of the accident had been with the Major Crash Investigation Unit for a period of three years and before that a crash investigator at Albany. He has a Diploma in Major Crash Investigation from the Western Australian Police and a Certificate in Traffic Accident Investigation from the North Western University in Illinois, USA.
He attended the accident at 9.30am on that day. The Commodore had extensive damage to the right side at the centre pillar. It had minor damage down the left hand side. There was damage to the shrub or tree line on the left verge of the road. He also observed tyre marks on the grass road verge. It was his conclusion that the Commodore had travelled off the bitumen and struck the first pole with its left hand side. The Commodore has continued on and the rear has rotated to the right so that it is travelling sideways facing in a westerly direction. It was his view that he was unable to get a conclusive speed from the tyre marks and it would not have been possible to re-inact the accident.
Senior Constable Pillage did not believe that the tyre marks shown on the bitumen in exhibit 5A are related to this accident. (see exhibit 6 where he has marked a copy of exhibit 5A). It was his conclusion that those tyre marks were made by another vehicle on a different occasion. The tyre marks on the grass show the Commodore moving across the grass slewing sideways having struck the first pole. It has then slewed across the grass and through the vegetation and hitting the second pole so that the Commodore ended up in an east/west orientation.

Findings of fact

There was no evidence from the plaintiff as the circumstances in which the accident occurred. The plaintiff must rely upon the evidence of Ms Priddy and Ms Rhodes. Ms Rhodes was immediately behind the plaintiff's vehicle and Ms Priddy was the third car behind the plaintiff's vehicle. Both were clearly close to the scene. Ms Priddy came to a stop before the first pole that the plaintiff struck. Ms Rhodes stopped her vehicle and walked back. They both described the traffic as moderately busy with the traffic flow travelling at about 80 kilometres per hour. In my view there is no evidence of speed at that point on the part of the plaintiff. Both Ms Priddy and Ms Rhodes had a clear view of the accident. Ms Priddy saw the movement of the plaintiff's vehicle out of the line of traffic and stated that the vehicle came off the road just north of the Russell Road Industrial Estate entrance. It was not out of control until it hit the grass.
Ms Rhodes had the best view. She was immediately behind the plaintiff's vehicle. In my view the police evidence was consistent with the evidence of Ms Priddy and Ms Rhodes. Constable Jones marked all the tyre marks but Senior Constable Pillage was certain that the tyre marks on the bitumen were not made by the plaintiff's vehicle. I accept that evidence. The police found no marks indicating the plaintiff's vehicle had been fish tailing or any marks on the verge south of the entrance to the Russell Road Industrial Estate. Ms Priddy and Ms Rhodes were both very clear as to the movements of both vehicles and I accept their evidence as reliable.
Paragraph 5 of the defence is in the following terms:
"As to paragraph 3, the defendant says that:
(a)the defendant was travelling in his vehicle in the kerbside lane;
(b)the plaintiff in her vehicle attempted to pass the defendant in his vehicle on his left hand side;
(c)the plaintiff in her vehicle passed the defendant in his vehicle;
(d)the plaintiff in her vehicle gained a position in front of the defendant in his vehicle in the kerbside lane; and
(e)the plaintiff lost control of her vehicle as a result of which it mounted the verge to the north of the entrance to the Russell Park Industrial Estate and crashed into a power pole and then it crashed into a second power pole."
In my view that is a glaringly improbable situation. Just prior to the accident there was a bend in the road from left to right. It would be a foolhardy exercise. There were power poles ahead of the plaintiff which would have been obvious. Additionally there was no benefit to the plaintiff as she would have been turning left at Russell Road just a short distance away.
The defendant was a most unconvincing witness. In my view he was attempting to finesse what he told Sergeant Appleby. I do not accept his evidence.
There are a number of reasons why I do not accept the evidence of Ms Hogg. At the trial her evidence was that the plaintiff's vehicle was weaving in and out of traffic but she accepted that in her police statement she had stated only that it changed lanes abruptly on one occasion. It was her evidence that she observed the plaintiff's movement for some 10-15 minutes prior to the accident over a distance of some 15 kilometres and that the plaintiff was weaving in and out of traffic. Yet Ms Hogg remained within close range over the entire distance of 15 kilometres. She was unable to say where the accident occurred in relation to the Russell Road Industrial Estate. She only ever saw the truck in the left hand lane. She was unaware of what traffic was in front of her and what traffic was behind her. She was unable to say how far she was behind the Commodore. In my view Ms Hogg's evidence demonstrated a considerable degree of uncertainty and I am not prepared to accept her evidence.

Neither am I able to accept Ms Benny's evidence. She denies ever seeing a vehicle that looked like the defendant's vehicle. She was unable to give any explanation for the plaintiff's loss of control of her vehicle.
It follows in this matter that I find the accident occurred in circumstances where the defendant has changed lanes from right to left without warning forcing the plaintiff to take evasive action with the result that the Commodore left the road and travelled on to the verge where it went out of control and collided with a pole.
I find that the defendant was negligent.

Contributory negligence

In my view there has been no contributory negligence on the part of the plaintiff. She was forced to take evasive action because of the defendant's manner of driving and in doing so lost control of the vehicle.

Conclusion

The defendant is liable to the plaintiff for 100 per cent of her damages to be assessed.

[2006] WADC 77

25 May 2006