Stafford v McDonald
[2003] TASSC 33
•27 May 2003
[2003] TASSC 33
CITATION: Stafford v McDonald [2003] TASSC 33
PARTIES: STAFFORD, Peter Mark
v
McDONALD, Nicholas Gilbert
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 1116/1990
DELIVERED ON: 27 May 2003
DELIVERED AT: Hobart
HEARING DATES: 20 May 2003
JUDGMENT OF: Underwood J
CATCHWORDS:
Torts - Negligence - Road accident cases - Liability of drivers of vehicles - Excessive speed - Travelling on a rural road with open speed limit but near tourist attraction.
Aust Dig Torts [98]
Torts - Negligence - Road accident cases - Actions for negligence - Apportionment of damages - Pedestrian accidents - Standard of care expected of pedestrian crossing rural road.
Aust Dig Torts [109]
REPRESENTATION:
Counsel:
Plaintiff: D J Porter QC
Defendant: K E Read
Solicitors:
Plaintiff: Hand Ogilvie & Breheny
Defendant: Piggott Wood & Baker
Judgment Number: [2003] TASSC 33
Number of Paragraphs: 27
Serial No 33/2003
File No 1116/1990
PETER MARK STAFFORD v NICHOLAS GILBERT McDONALD
REASONS FOR JUDGMENT UNDERWOOD J
27 May 2003
Introduction
The plaintiff was injured on 21 January 1989 when he was knocked down by a motor cycle. The parties have reached an agreement with respect to the quantum of damages. The trial was confined to the issue of liability.
The scene
The accident happened on a section of the Arthur Highway, just north of Pirates' Bay at Eaglehawk Neck. The weather was overcast, but the road surface was dry and the visibility was good. Today, the Arthur Highway commences its rather steep descent down to Pirates' Bay about a kilometre or so from the narrow strip of land known as "the Neck". At the time of the accident, that section of the Arthur Highway had not been constructed. At a point just short of where the steep descent now commences, the Arthur Highway veered east towards the coast for a short distance and then turned south and took a winding descent close to the coast until it reached "the Neck". This section of highway is now known as the scenic route.
Not far from the point where the scenic route veers east, drivers travelling towards Eaglehawk Neck pass a sign erected on the right hand side of the road. It is a tourist sign. It depicts a camera and bears the words "Pirates' Bay 200 Metres on Right". It was there at the date of the accident. Two hundred metres past the sign and on the same side as it, there is a "geological monument" and a tourist lookout giving a view out to sea over Pirates' Bay. The road is not straight and for traffic travelling towards Pirates' Bay, it slopes downhill.
At the time of the plaintiff's accident, the road surface was bitumen and marked with a centre dividing line. In the area of the tourist lookout, the left hand edge of the travelled portion of the bitumen used by traffic travelling from Pirates' Bay is marked with a continuous white line. At the lookout, the bitumen widens out past the continuous white line so that the traffic can pull off the highway by crossing over the line and coming to a stop on the bitumen but off the travelled section of the road. On the opposite side of the road there is a gravel verge just one car's width wide. The bitumen surface in the vicinity of the lookout is ten metres wide, but the marked travelled portion is six to seven metres wide, and as I have said, divided into two equal lanes.
Vehicles going to Eaglehawk Neck travel past the tourist sign and around one or two curves before entering a left hand bend. There was no evidence of a sign on this bend, but the unchallenged expert evidence was that its degree was such that the National Australian Road Guide to Geometric Design of Rural Roads would, today, prescribe a sign to warn drivers entering the bend that the appropriate maximum speed for its negotiation is 75 kilometres per hour.
For drivers going to Eaglehawk Neck this bend obscures the view of the roadway opposite the tourist lookout parking area until they are approximately 54 metres away from it.
The parties
The plaintiff, now 34 years of age, turned 20 the day before the accident. He then lived in the Australian Capital Territory, and had come to Tasmania for a holiday. He, and his then girlfriend (now Mrs Stafford) together with a number of others, had been walking in the Cradle Mountain Lake St Clair National Park. On the morning of the accident, the plaintiff and Mrs Stafford hired a car and set off for Port Arthur. Mrs Stafford was the driver. The plaintiff was in the front passenger seat. When they rounded the bend that I have described, Mrs Stafford decided to stop and look at the geological monument and the view. She pulled off the bitumen on the left hand side of the road opposite the tourist lookout.
It appears that not too far behind the plaintiff and Mrs Stafford, and travelling in the same direction, were two motor cyclists. One was the defendant and the other was his brother, who then lived in New South Wales. The defendant was riding a Suzuki GSX-R 1100 machine. The expert evidence was that its power/weight ratio was equal to that of a Formula 1 racing car.
The plaintiff's unchallenged evidence was that after the accident, the defendant told him that he had only bought his bike about three weeks before the accident and that day was "the first time he had had a chance to take it for a run". From the conversation that passed between the plaintiff and the defendant while the former was waiting at the scene for the ambulance to arrive, I find that this was not the first time that the defendant had travelled on this section of the Arthur Highway. The evidence does not permit me to make a finding as to how well he knew this section of the highway, but I do infer that before the day of the accident, the defendant knew of the existence and location of the tourist lookout.
The accident
The only eye witness to the accident was the plaintiff. Although Mrs Stafford gave evidence, she did not actually see the accident happen. To support his case, the plaintiff called evidence from a Mr Jamieson, a consulting forensic engineer from Sydney who has studied all aspects of crash investigation and traffic safety. The defendant was present at the hearing, but chose not to give evidence. The plaintiff tendered a statement that the defendant made to the police about three weeks after the accident. There was very little difference between the contents of that statement and the evidence of the plaintiff. Mr Read, counsel for the defendant, did not suggest that the plaintiff's evidence was other than truthful and accurate, notwithstanding that 14 years had past between the date of the accident and the date of trial.
There were three or four cars already parked off the road opposite the tourist lookout when Mrs Stafford stopped. She found a space between them. The plaintiff said that there was a van to the immediate rear of their car. Mrs Stafford got out and crossed the road to look at the view. The plaintiff did not immediately get out, as he was unsure how long Mrs Stafford would be. After a moment or two, he decided that he would also go across to the lookout. He got out of the car, walked around the back of it, stopped, and looked around the front of the van up the hill to the bend, a distance of about 54 metres. Nothing was in sight. The plaintiff then looked left, looked right again and took a step forward. As he did that, the defendant's brother came into view around the bend riding his motor cycle. The plaintiff saw him and stepped back to let him go past. The bike went by at what the plaintiff described as "a considerable speed". On the other side of the road, Mrs Stafford heard this bike go by.
After the defendant's brother had gone by, but before the noise of his bike had died away, the plaintiff again looked to his right. The road was clear. He looked left and then right again and stepped out onto the bitumen. The plaintiff reached a point somewhere in the middle of the lane in which the defendant's brother had travelled, when he discerned the sound of another motor cycle engine over the sound of the one that was going away from his left. After an instant the plaintiff realised that this other bike was coming from his right. He paused, I find, frozen with indecision, for the briefest moment and then sprinted to the other side of the road.
In his statement to the police, the defendant described these events from his point of view as follows:
"I was travelling down the hill on the section of the road approaching the Pirates Bay Lookout. As I rounded a left hand bend prior to the lookout, I noticed a male person on my left, he appeared to see me coming. When I first saw him he was just leaving the edge of the road starting to cross from my left to my right.
He kept walking, about 1/3 to ½ way across to the centre line, he stopped.
When I first saw him I started to brake. When he stopped walking I started to move out to my right to go around him, when all of a sudden he started to run to get across the road. When he started I was only about 40 yards from him, there was nothing I could do, I tried to swerve around him but he kept running into my path. We collided, I came off the bike and the pedestrian was knocked to the ground."
I find that the plaintiff was hit by the defendant just as the former reached, or passed over, the continuous white line that marked the edge of the travelled portion of the highway for traffic travelling from Eaglehawk Neck.
Mrs Stafford heard the sound of the defendant's motor cycle as it approached. She heard the thud of the impact and said that she then saw the plaintiff on the ground close by, with his head near her feet. The plaintiff said that his head was just under the bumper of one of the cars which were parked on the tourist lookout.
Was the defendant in breach of the duty of care he owed the plaintiff?
The only evidence of the speed at which the defendant was travelling came from the defendant's statement to the police. He said:
"Prior to the accident, I would have been travelling at about 100 k p h, after braking I would estimate my speed at impact to be about 60-70 k p h."
As the defendant started to come out of the bend, he saw, or should have seen, the two or three cars that were parked on the tourist lookout area and the people who were there, including Mrs Stafford and a woman with a pram who had crossed the road just before Mrs Stafford crossed. He would then have been some 60 to 70 metres from the point where the plaintiff crossed the road.
I accept the expert evidence that to negotiate the bend at 100 kilometres per hour, the defendant would have been leaning to his left some 29 degrees from the vertical. This would have meant that before the plaintiff could safely brake heavily, he would have had to slow and bring his motor cycle to the upright position.
It appears that the defendant was keeping a proper lookout, for he saw the plaintiff virtually as soon as he stepped into sight in front of the van. However, because of the close proximity of the bend to the point of crossing, the plaintiff was then only 54 metres or so from the defendant's bike. Travelling at a continuous speed of 100 kilometres per hour, it would have taken the defendant only two seconds to reach the plaintiff.
Although the defendant was not travelling in excess of the speed limit, I have reached the conclusion that in all the circumstances, negotiating that bend at 100 kilometres per hour was a breach of the duty of care that the defendant owed the plaintiff. Those circumstances include:
· the defendant knew that the tourist lookout was located at that point just around the bend;
· the defendant knew, or ought to have known, that it was likely, given the time of the year and the time of day, that cars and pedestrians were likely to be in the area of the tourist lookout; and
· the defendant saw, or ought to have seen, parked cars and people at the tourist lookout when he was some 60 to 70 metres from the point of impact and ought to have anticipated that there may have been cars parked on the opposite side of the road and that persons might do just what the plaintiff in fact did.
Had the defendant negotiated the bend at 75 kilometres per hour, there would have been less of a lean on his bike facilitating his capacity to brake heavily. He would have been travelling at 20.83 metres per second instead of 27.7 metres per second. In those circumstances, the defendant would have had increased capacity to assess the situation that faced him, increased ability to substantially reduce the rate of travel, and increased manoeuvrability. All of these factors would have made it likely that he could have avoided the collision, notwithstanding the plaintiff's sudden dash to the other side of the road.
Contributory negligence
The issue under this head is whether the plaintiff's loss and damage was partly caused by his failure to take the care that was reasonable in the circumstances for him to take for his own safety. The following passage is taken from the judgment of Windeyer J in Teubner v Humble (1963) 108 CLR 491. His Honour was referring to a statement by Dr Bray that "the motorist and the pedestrian are on different planes in respect of negligence". Windeyer J said that there was a likelihood that such a statement might be misleading. He said, at 504:
"If it means only that the degree of care that must be exercised in any operation varies with the risk involved, this goes without saying. The question is one of fact. I know of no relevant rule of law except that a man driving a motor car must act as a reasonable and prudent man driving a motor car would act in the circumstances: and a pedestrian must act as would a reasonable and prudent pedestrian in the circumstances. Whether or not either has done or failed to do so is essentially a question of fact. A motor car does not become anything different from what it is by calling it 'a lethal weapon'. Doing so may bring home, if it be not sufficiently obvious, that if the driver of a motor car does not drive carefully he may kill somebody: whereas the carelessness of a pedestrian is a carelessness for his own safety rather than a disregard of the safety of others. But when both are at fault the question is how far in the circumstances did the motorist depart from the standard of care of a reasonable man driving a motor car, and the pedestrian from the standard of care of a reasonable pedestrian."
The same proposition holds good, of course, for a motor cyclist and at the risk of disobeying his Honour's injunction not to exalt cases on issues of fact to cases involving issues of law, see Campbell v Jewell [1970] Qd R 192.
The plaintiff knew that he was about to cross a country highway with a maximum speed limit of about 100 kilometres per hour. He was aware that the line of sight for a driver approaching on his right was limited and he had been warned by the actions of the defendant's brother, that vehicles could approach very quickly. When the defendant's brother went past, the plaintiff did just what he did immediately prior to the accident. He looked right, he looked left, he looked right again and nothing was coming. He then took a single step forward and then saw the defendant's brother and immediately stepped back.
In his statement to the police, the defendant said, in effect, that the plaintiff appeared to see him before he stepped off. This is contrary to the plaintiff's evidence in that he said that the last thing he did before he stepped out was to look right and nothing was coming. I prefer the plaintiff's oral testimony to the written statement of the defendant. However, it is clear that at no time thereafter did the plaintiff look to his right. Had he done so as he moved out across the road, he would have seen the defendant approaching, and likely would have stepped back as he did when he saw the defendant's brother approaching. That experience, and the limited line of sight to the right, obliged the plaintiff to maintain an alert visual watch to his right until he at least reached the centre of the road. His failure to do so at a time when his sense of hearing was still dealing with the sound of the retreating bike, caused him not to see or hear the defendant's approach as early as he could have done. This in turn caused him to dart to the other side of the road in a moment of panic. In the circumstances, the plaintiff's failure to maintain a continuous vigil to his right as he crossed the road contributed to the loss, injury and damage that he suffered.
However, I do not accept Mr Read's submission that in the event of a finding of contributory negligence, each party was equally at fault. There is a big difference between the objective standard of care imposed on the rider of a high powered motorcycle driving along a country highway, such as the Arthur Highway in the vicinity of the tourist lookout, and the standard of care the plaintiff was expected to maintain for his own safety as he crossed the road as a pedestrian. I would assess the plaintiff's liability for his own loss, injury and damage at 20 per cent.
Judgment
Damages are agreed in the sum of $185,688.84. This sum should be reduced by 20 per cent to $148,551.08. From this sum should be deducted $65,684.84, being the agreed scheduled benefits that have already been paid by the Motor Accidents Insurance Board. There will be judgment for the plaintiff against the defendant for $82,866.24.
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