Stainton v Wright

[2008] WADC 55

STAINTON -v- WRIGHT [2008] WADC 55

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WADC 55
Case No:	CIV:802/2006	Heard:	15 APRIL 2008
Coram:	STEVENSON DCJ	Delivered:	24/04/08
Location:	PERTH
No of pages:	22	Judgment Part:	1 of 1
Result:	Accident not caused or contributed to by plaintiff's negligence
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Parties:	AMANDA IRENE STAINTON ADAM RUKUWAI WRIGHT
Catchwords:	Tort Motor vehicle accident Multiple vehicles involved Defendant's vehicle on wrong side of road Plaintiff's vehicle second vehicle struck by defendant Whether plaintiff guilty of contributory negligence
Legislation:	Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 s 4 Supreme Court Rules 1971 O 20 r 15(1), O 20 r 15(4), O 34 r 5(2)
Case References:	Manley v Alexander [2005] HCA 79 Water Board v Moustakas (1988) 180 CLR 491

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : STAINTON -v- WRIGHT [2008] WADC 55 CORAM : STEVENSON DCJ HEARD : 15 APRIL 2008 DELIVERED : 24 APRIL 2008 FILE NO/S : CIV 802 of 2006 BETWEEN : AMANDA IRENE STAINTON

Plaintiff

AND

ADAM RUKUWAI WRIGHT
Defendant

Catchwords:

Tort - Motor vehicle accident - Multiple vehicles involved - Defendant's vehicle on wrong side of road - Plaintiff's vehicle second vehicle struck by defendant - Whether plaintiff guilty of contributory negligence

Legislation:

Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 s 4

Supreme Court Rules 1971 O 20 r 15(1), O 20 r 15(4), O 34 r 5(2)

Result:

Accident not caused or contributed to by plaintiff's negligence

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Representation:

Counsel:

Plaintiff : Mr J D Staude
Defendant : Mr K N Allan

Solicitors:

Plaintiff : Donna Percy & Co
Defendant : K N Allan

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

Manley v Alexander [2005] HCA 79
Water Board v Moustakas (1988) 180 CLR 491

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STEVENSON DCJ:

Introduction

1 On Sunday, 11 July 2004 at about 2.30 pm the defendant's motor vehicle collided with three oncoming vehicles on Armadale Road, Forrestdale. At the time of each collision the defendant was on the wrong side of the road. The defendant does not dispute that the major cause of the accident was, insofar as it involved the plaintiff, a direct result of the negligent manner of his driving.

2 The plaintiff's vehicle was subjected to a major head-on collision with the defendant's vehicle in contradistinction to the other two vehicles struck by the defendant. Fortunately for the plaintiff, the point of impact on her vehicle was the front left-hand side, the non-driver's side of the vehicle, otherwise her injuries may have been far greater.

3 The issue the Court is required to determine is whether the plaintiff's manner of driving was negligent and, if so, did it cause or contribute to the occurrence of the accident insofar as it involved the plaintiff. If, on the balance of probabilities, the Court is persuaded that the plaintiff was negligent, it will be necessary to determine the relevant extent of the plaintiff's contributory negligence.

4 By order of the Court made on 19 February 2008 the issue of the quantum of the plaintiff's claim is to be determined on a later date.

Pleadings

5 The plaintiff's re-amended statement of claim filed 12 September 2007 pleads that the plaintiff was involved in a collision with a vehicle driven by the defendant on Armadale Road on 11 July 2004, about 200 metres west of the intersection of Armadale Road and Anstey Road, Forrestdale. This fact is admitted by the defendant.

6 Paragraph 3 of the statement of claim pleads that the accident was caused by the negligence of the defendant in that the defendant:

(a) drove without paying due care and attention;

(b) failed to brake, swerve, steer, manoeuvre or otherwise drive the motor vehicle in a manner to avoid the accident;

(c) drove at an excessive speed in the circumstances;

(d) failed to adequately control the motor vehicle so as to avoid the accident;

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(e) failed to keep any or any proper lookout.

7 In answer, the defendant pleads that "the plaintiff was the fourth in a line of motor vehicles travelling east on Armadale Road". I note the evidence is that Mrs Fell-Smith was driving the first vehicle in the line of traffic travelling east and that the plaintiff was the third vehicle behind Ms Wylde and in front of Mr Bergsma. Accordingly, I find that the plaintiff's vehicle was the third vehicle in a line of four travelling east on Armadale Road.

8 The defendant's defence contains an admission of fact that, as his "vehicle approached the first in the line of the eastbound vehicles, it commenced to move onto the incorrect side of the road". The defendant otherwise denies every particular of negligence alleged by the plaintiff.

9 The defendant further pleads that the collision between the parties' vehicles was caused or contributed to by the negligence of the plaintiff on the basis that she:

(a) failed to keep any or any proper lookout for motor vehicles travelling towards her on Armadale Road;

(b) failed to heed or observe that the defendant's motor vehicle had commenced to cross onto her side of the road;

(c) failed to heed or observe that motor vehicles travelling in the same direction as she was travelling were taking action to avoid a collision with the defendant's motor vehicle;

(d) failed to take any or any adequate action to avoid a collision with the defendant's motor vehicle;

(e) failed to take any or any adequate care for her own safety.

10 As the plaintiff did not file a reply, there is an implied joinder on the issue of the plaintiff's alleged negligence: Supreme Court Rules O 20 r 15(1). The joinder of issue operates as a denial of every material allegation of fact made by the defendant: Supreme Court Rules O 20 r 15(4).

11 In my view the defendant's admission that he drove his vehicle onto the incorrect side of the road and therefore implicitly into the direct path of the approaching eastbound vehicles, together with the evidence of the evasive action taken by all the witnesses in this case (including the plaintiff), leads to the inescapable conclusion that the defendant's manner of driving was negligent and was causative of the collision between the plaintiff's and the defendant's motor vehicles. The evidence of all the

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witnesses was consistently to the effect that the defendant's vehicle crossed over the middle line onto the wrong side of the road and into their direct path. As a result, each witness was struck by the defendant's vehicle, except for Mrs Fell-Smith (the lead vehicle which managed to avoid a collision).

12 Although the defendant's pleading contained only the limited admission of fact referred to above, it was not contended at trial that the defendant's manner of driving was not negligent for the reasons particularised by the plaintiff. The only substantive issue raised by the evidence and by counsel for the defendant was the issue of the plaintiff's alleged negligence: see Water Board v Moustakas (1988) 180 CLR 491. Accordingly, I find that the accident involving the collision between the plaintiff's and the defendant's motor vehicles was caused by the defendant's negligence. Whether it was also caused, or contributed to, by the plaintiff's negligence is the only real issue which was in contention and required to be determined by this part of the proceedings.

13 At the commencement of the trial I ruled, based on the pleadings and counsel's submissions, that the defendant should open his case and adduce evidence first on the basis that the only substantial issue in the trial is whether the plaintiff's negligence contributed to the accident, being the issue upon which the defendant bore the burden of proof: O 34 r 5(2) Rules of the Supreme Court.

Evidence

14 The defendant called Senior Constable Gregory Colin Robinson. He attended the scene of the accident on 11 July 2004 and produced a series of 13 photographs that he had taken. They depicted the damage to the various motor vehicles immediately after the accident had occurred and before any of the vehicles were moved (Exhibit 1).

15 The defendant also called the investigating officer in charge of the accident, Senior Constable Lesley Norman Goddard of the Major Crash Investigation Unit. He produced a statement dated 15 September 2004 which he obtained from the plaintiff (Exhibit 2). The plaintiff said in cross-examination that she signed the statement while still in hospital.

Lorraine Fell-Smith

16 The defendant called Mrs Fell-Smith. She was the first of three drivers whose vehicles were involved in the accident, all of whom were to be called by the defendant. She was driving the first vehicle in the line of
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traffic travelling east on Armadale Road. Her vehicle did not collide with the defendant's vehicle.

17 Mrs Fell-Smith was driving a white Hyundai hire car on Armadale Road in an easterly direction. She was alone. Her evidence was that, at the time, Armadale Road was a two-lane road, one lane each way. She said she was the first car in the traffic heading towards Armadale and that there "were quite a number of cars" behind her. She said that there was a line of cars coming towards her and that she was travelling at about 70–75 kilometres per hour. The speed limit was 80 kilometres per hour.

18 Mrs Fell-Smith said she observed a dark-coloured Jaguar, which was "the second car" in the line of traffic travelling towards her, "pull out into the centre as if to pass the car in front of it". She said the car did not return to its position on its own side of the road as she expected but that it "continued down the centre of the road, not swerving, not moving". She said she "took evasive action when [she] realised that he was going to hit …" by steering two wheels of her car onto "the gravel verge" as the defendant's car passed by her. It was not clarified whether she was referring to the two front wheels, but I infer she was referring to the front and back left-hand side wheels. Her vehicle was not struck by the defendant.

19 In her evidence-in-chief Mrs Fell-Smith said she was unsure of the time interval between when she first saw the defendant's vehicle on the road in front of her and precisely at what point she took evasive action, but she said she had her car "off the road and under control" by the time the defendant passed her.

20 However, Mrs Fell-Smith said she thought the defendant's vehicle was about the distance equivalent to that between two lamp posts, ahead of her when she first saw him move out in front of her. Counsel for the defendant helpfully suggested that the distance between lamp posts used to be the length of a cricket pitch. Having traversed this distance at varying speeds on foot on countless occasions, I am well aware of the length of a cricket pitch. While I accept counsel's observation, I cannot of course take judicial notice of the contention (and nor did he ask me to). The evidence was not clear as to whether Mrs Fell-Smith meant the distance between two lamp posts, or whether she was in fact referring to the power poles at the scene observable in the photographs (see Exhibit 1) which were shown to her in the course of her evidence. Whatever the exact distance, it cannot have been very far considering the evidence that

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the eastbound line of traffic was travelling at about 80 kph. This is equivalent to a closing head-on speed of 160 kph, if one assumes the westbound line of traffic was travelling at a similar speed.

21 In examination-in-chief, Mrs Fell-Smith said she heard the defendant's vehicle hit one car behind her and then there was "a horrific collision". She said she saw the post-accident position of the Jaguar "on the opposite side of the road in a ditch" with "the young man standing outside the car speaking on a telephone". I infer from her evidence that she was referring to the driver of the Jaguar. After waiting for assistance to be provided to the plaintiff, she approached a policeman and gave him her contact details as a person involved in the accident.

22 In cross-examination, Mrs Fell-Smith said there was no traffic in front of her on her side of the road and the defendant's vehicle was the second vehicle in a line of vehicles approaching her. She said she assumed that the defendant was going to overtake the vehicle in front of it and formed this view because he was travelling down the centre of the road in the direction of the road. It was at about this point in time that she said she took evasive action. She said as the defendant passed her, she looked directly at him and that he was staring directly ahead with his eyes wide open. As he passed she said the three vehicles were abreast of each other on the road: "there were three cars across the road". It was not clear whether all three cars were still on the pavement or the extent to which Mrs Fell-Smith had already partly pulled over onto the gravel.

23 In my view, Mrs Fell-Smith had a good recollection of the circumstances leading up to the accident and was a reliable witness. She was definite about the evidence she gave. She, like all the witnesses, was not challenged in cross-examination about any material aspect of her evidence.

Jennifer Margaret Wylde

24 Ms Wylde was called by the defendant. On 11 July 2004, she was driving home to Lowlands (near Albany) in a white Commodore with her 18-year-old daughter in the front passenger seat. She was on Armadale Road and said there were cars in front of her and behind her, but that the plaintiff was behind her. She said there was also a line of traffic coming towards her and "the whole time there was traffic going past". She remembered a four-wheel drive in front of her (not mentioned by anyone else). The evidence suggests that Ms Wylde was driving the vehicle travelling towards Armadale behind Mrs Fell-Smith and directly in front of the plaintiff's vehicle.

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25 Ms Wylde said she saw "the car in front swerve". She also saw the defendant's vehicle pull over onto her side of the road. She thought this was for the purpose of having a look with a view to overtaking another vehicle. At the time she regarded the defendant's actions "as cheeky". Although Ms Wylde said she was not sure, she thought both events "happened at the same time". I infer from this evidence that everything happened in a very short period of time - a matter of seconds.

26 Ms Wylde said she maintained her direction and speed until she realised that the defendant was in fact "coming even faster towards" her, at which point she veered to the left. Her vehicle was struck by the defendant's vehicle on the right side behind the rear back door – "as soon as he hit me all I could hear was debris and banging and clanging" from her damaged car. Neither she nor her daughter was physically injured.

27 In cross-examination, Ms Wylde said the defendant's vehicle was travelling in a single direction, "apart from when it had come out across the road". Up until this point in time, she said she assumed the defendant would simply pull back in as soon as he could see it was unsafe to overtake. Instead she was forced to swerve suddenly. She thought she took her foot off the accelerator "with a view to thinking about what I needed to do but having no time to think". Clearly, when regard is had to the speed of the vehicles, Ms Wylde had little time to react because she swerved when the defendant was only "a couple of feet away".

28 Ms Wylde's evidence was to the effect that she only swerved when she realised the defendant was not going to pull back in and because he, in fact, did the opposite of what she expected him to do. Rather than slow down and pull back in, the defendant "picked up speed" and went even further across onto the plaintiff's side of the road.

29 Ms Wylde also said that when the defendant passed her his eyes were closed and that he was gripping the steering wheel with straight arms in the classic "ten to two" position.

30 In view of the evidence of Mrs Fell-Smith that the defendant's eyes were open when he passed her, and there being no evidence from the defendant himself, an inference open to the Court on the evidence is that the defendant panicked when he realised it was too late to pull back in and thought his only hope of avoiding a collision was to accelerate into the gap provided by the opening on the road as a result of Mrs Fell-Smith pulling over to her left. Unfortunately it seems there was not enough time and distance for the defendant to get back across to his side of the road

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before he collided with the rear end of Ms Wylde's vehicle which in turn caused his vehicle to be swung sharply even further across the road directly into the path of the plaintiff's vehicle.

31 Ms Wylde gave her evidence in a spontaneous manner. She was not challenged in cross-examination but was encouraged to explain more fully the circumstances of the accident than she gave in evidence-in-chief. Her evidence was clear and in my view her recollection of events was reliable.

Jacob Willem Hendrik Bergsma

32 Mr Bergsma was called by the defendant. He is a patient care assistant. At the time of the accident, on 11 July 2004, he was driving home alone from work in a red Suzuki Swift. He recalled other vehicles were travelling in the same direction as himself towards Armadale on Armadale Road. He remembered "about four or five cars" ahead of him. He said he was driving at 80 kilometres per hour.

33 In examination-in-chief Mr Bergsma said that he noticed five or six vehicles coming towards him. He said he noticed the defendant's vehicle "coming out of the line of traffic … over the white line in the middle of the road". He said he thought the defendant "was just weaving over the line a bit" and he expected he would correct his line but he did not. His thought process was a concern about the possibility of a collision with the cars travelling in front of him, not with the defendant so, when the moment came, he veered to the left but not sufficiently in time to avoid being struck by the defendant's vehicle.

34 Mr Bergsma's vehicle was struck on its right rear side and he said he subsequently saw red paint from his car on the right rear fender of the defendant's vehicle. He said the two left-hand wheels of his vehicle were off the road at the time of impact with the defendant's vehicle. Even though it all happened "in a matter of seconds", Mr Bergsma expressed surprise that he could not avoid colliding with the defendant's vehicle. He said he did not have time to see what happened ahead of him because he was "focusing on evasive action". Mr Bergsma suffered neck and upper shoulder pain as a result of injuries sustained from the collision.

35 In cross-examination, Mr Bergsma said he did not see the defendant's vehicle collide with any of the vehicles in front of him, and in particular the plaintiff's vehicle, even though it was directly in front of him. Mr Bergsma's evidence was:

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"From the moment I saw the Jaguar, it was, to me, only a matter of seconds before I was hit on the rear of my vehicle. So from the moment I estimated that something was going to happen, I thought, it was a matter of seconds before he actually hit the rear of my vehicle."

36 Mr Bergsma said his vehicle stopped because the engine stalled on impact and it ended up in the driveway of a house about 5 metres off the road facing south. He said he had no control over his vehicle after he was hit. He confirmed that the post-accident position of his vehicle was as shown in Exhibit 1.3.

37 Mr Bergsma gave his evidence in an objectively detached manner. He was precise and measured in his recall of the events at the time. I note by the time his vehicle was struck, the defendant's vehicle had already been involved in a substantial front-on impact collision with the plaintiff's vehicle, and I infer it had slowed as a result, and yet he was unable to avoid a collision.

Amanda Irene Stainton

38 The plaintiff gave evidence on her own behalf. She is married with three young children. At the time of the accident she was driving home on Armadale Road after visiting her mother in South Lake. She has held a motor driver's licence since the age of 22. She has not been involved in any previous car accidents. At the time of the accident she was alone and had been in the car for about 15 minutes. She said she knew the route well as she visited her mother on most Sundays.

39 The plaintiff recalled that there were cars in front of her and behind her and she described the traffic travelling towards her from the opposite direction as "a moderate line of traffic … it wasn't heavy, it wasn't light. It was just cars passing as you were going along".

40 The plaintiff said she was driving at 80 kilometres per hour and that she knew this was the speed limit. She was approaching the Anstey Street intersection when she "noticed a goldy-coloured car coming over to my side of the road very quickly, at quite a speed". She observed "that it was a lot faster" than the other vehicles. In examination-in-chief, Ms Stainton said that she first noticed the defendant's vehicle when "it was already out of position in the normal line of cars, and it was heading straight for me". She said the defendant's vehicle was close enough for her to see its arc-shaped front grille and that:

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"… everything just happened so quickly, you know, in terms of distance away from me; it came up so suddenly … I had no time to react. I put on my brakes, I knew there was going to be some collision, and we impacted. My car spun around three times, came to a rest facing in the opposite direction, and then there was people starting to gather around my car, asking me if I was alright and asking me for phone numbers, and keeping me alert.

…….

I did sound my horn, and the car that was coming towards me did not attempt to veer or swerve, and it appeared that he did not apply his brakes either.

…….

There was just no time to react, it just happened so quickly."

41 In cross-examination, the plaintiff said that she was trapped in her car at chest level, the car in effect having been forced back onto her by the force of the impact. Some time later, the plaintiff was cut out of the wreckage of her motor vehicle by members of the Fire Brigade. She said she was aware the windscreen had been broken and that her car had been damaged, but she did not appreciate the extent of the damage until she saw photographs of the wreckage.

42 The plaintiff identified Exhibit 2 as the statement she made to Senior Constable Goddard while still in hospital. At this time, the plaintiff was in hospital for 2 ½ to 3 months as a result of the accident and, at the time of giving her evidence, was in a wheelchair, presumably as a result of her accident injuries. In the statement given to the police officer, the plaintiff said in respect of the circumstances immediately before the accident that:

"All of a sudden, without any warning, a car appeared in front of me. It was heading toward me on my side of the road. I am not sure of (sic) what kind of car it was, but it was a flash one. This car crashed head-on into my car. I slammed on my brakes, but it hit me. My car spun around, then stopped."

43 In her statement the plaintiff went on to say that at the time of the accident the weather was fine, the road was dry and "the traffic flow was moderate". The statement was signed by the plaintiff in its handwritten form, but the typewritten version of the statement was unsigned. I infer the statement was actually written by Senior Constable Goddard.

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44 In cross-examination, the plaintiff was asked about what action she took at the time of the accident. She said she "slammed on the brakes" and that "everything happened so quickly". The plaintiff agreed that she was not aware what had happened to the first two vehicles in front of her but she was aware that there was traffic in front of her and behind her immediately before the collision. She said:

"I saw [the defendant's vehicle] come over onto my side of the road, it happened so suddenly. It happened very quickly, everything was sudden, there was very little time to react."

45 The plaintiff explained more fully the statement she made to the police and did not accept that it was literally correct in the sense that the first time she saw the defendant's car was when it was actually in right in front of her car.

46 The plaintiff accepted in cross-examination that, as a driver, she had a duty to keep a lookout and to take notice of what was going on around her. Her evidence was that "you take notice of what is going on, and you drive the best way you can, and I believe that is what I was doing on that day. Everything did happen very suddenly".

47 The plaintiff gave her evidence in an open and frank manner. She was calm and in control of her emotions, notwithstanding the devastating injuries she appears to have suffered and the consequential impact on her life and family that the accident must have had. She listened carefully to the questions put to her and I am satisfied was truthful in her responses, the answers being given without any hesitation or apparent calculation of their importance to her case. In my view she was an open and honest witness, and I have no hesitation in accepting the truthfulness and reliability of her account of the events as she related them in the course of her evidence.

Findings of fact

48 I make the following findings of fact having regard to the oral evidence of the witnesses and the documentary evidence, namely the photographs and the plaintiff's statement made to the police:

1. On 11 July 2004 at about 2.30 pm the plaintiff was driving a Holden Camira, motor vehicle registration no 7FX-735, on Armadale Road, Forrestdale about 200 metres west of the intersection of Armadale Road and Anstey Road.

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2. At the time and place mentioned above:

(a) the plaintiff was travelling in an easterly direction towards Armadale;

(b) Armadale Road was a two-lane road with single broken line markings between the lanes and a solid white line delineating the edge of the road pavement on both sides;

(c) the speed limit was 80 kilometres per hour;

(d) the road was flat and straight in a semi-rural setting with some residential housing and a sportsground nearby; and

(e) the road was dry, the weather was fine and the traffic flow in both directions was moderate.


3. The defendant was driving a gold-coloured Jaguar motor vehicle in a westerly direction on Armadale Road, Forrestdale and was in a line of traffic with at least one vehicle in front of him. The traffic travelling west was travelling at the speed limit, namely 80 kilometres per hour and the defendant drove at a greater speed at the time he pulled out with a view to overtaking the traffic in front of him. The defendant then went even faster to try to complete his overtaking manoeuvre when he realised the oncoming traffic was closing more quickly than he had estimated.

4. The plaintiff was alone in her motor vehicle and on her way home after visiting her mother. She had been driving for about 15 minutes before the accident and knew the stretch of road from regular usage.

5. The plaintiff was travelling at about 80 kilometres per hour in a single line of traffic with two vehicles in front of her and at least one other vehicle immediately behind her.

6. Mrs Fell-Smith was driving a white Hyundai hire car in an easterly direction on Armadale Road at about 80 kilometres per hour. She was alone. There were no other cars in front of her in the same lane. There were vehicles behind her, including vehicles being driven by Ms Wylde, the plaintiff and Mr Bergsma in that order. To avoid the defendant's vehicle when it pulled out in front of her to overtake another vehicle, Mrs Fell-Smith took evasive action by driving her vehicle partially off the left-hand side of the road. Instead of pulling back in, the defendant's vehicle passed her while it was in the centre of the road so the three vehicles were at one point in time adjacent or abreast of each other. The defendant's vehicle did not collide with Mrs Fell-Smith's vehicle.

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7. Ms Wylde was driving a white Holden Commodore in an easterly direction on Armadale Road. Her daughter was in the front passenger seat. She was in a line of traffic which included Mrs Fell-Smith in front of her and the plaintiff's vehicle immediately behind her. She saw the defendant's vehicle appear to pull out of the line of oncoming traffic as if to overtake the vehicle in front of him. She saw Mrs Fell-Smith's car in front swerve to the left. Because the defendant did not pull in or back across to his side of the road, Ms Wylde was obliged to swerve her car suddenly and without warning to the left to avoid the defendant's vehicle. At this point of time, the defendant's vehicle was only a few feet in front of her but was picking up speed as it approached rather than slowing down. On passing the defendant's vehicle, the defendant was holding onto the steering wheel with both hands in the "ten to two" position with straight arms and his eyes closed. Ms Wylde's vehicle was struck by the defendant's vehicle on the right-hand side behind the rear passenger's door. She drove the vehicle along the verge of the road for as long as she could. She heard the defendant's vehicle collide with the vehicle behind her. Neither Ms Wylde nor her daughter were physically injured.

8. Mr Bergsma was driving a red Suzuki Swift in an easterly direction on Armadale Road at about 80 kilometres per hour. He saw the defendant's vehicle come out of the line of traffic as it approached him. Although he started to veer his vehicle to the left to avoid a collision with the vehicles in his lane in front of him, because it happened so quickly, his vehicle also was struck on the right-hand rear side by the defendant's vehicle. Mr Bergsma did not see what happened in front of him. Because everything happened in a few seconds, and because he was trying, albeit unsuccessfully, to avoid colliding with the vehicles in front of him in his lane, he did not see the defendant's vehicle collide with either the plaintiff's or Ms Wylde's vehicle. His judgment at the time was that he would avoid the collision but his vehicle was struck, which is indicative of the lack of time available for the affected drivers to react. His engine stalled on impact and his vehicle ended up in the driveway of a house 5 metres off the road facing south as a result of the collision with the defendant.

9. The plaintiff first noticed the defendant's vehicle when it was out of position (i.e. it was not on the correct side of the road) and was heading towards her. The time interval available to her from this

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point in time to the point of impact was a only a few seconds. In my view, the plaintiff had no reasonable opportunity in the circumstances in which she found herself to prevent the defendant's vehicle from colliding with her vehicle.

10. The circumstances with which the plaintiff was confronted, were factually different to that of the other drivers. At the point in time when it became inevitable that the defendant's vehicle was actually going to collide with her, she in fact had less time to react than the other drivers.

11. The plaintiff braked and sounded her horn. Notwithstanding her responsive actions, the front left-hand side of the defendant's vehicle struck the front left-hand side of her vehicle, causing substantial damage to both vehicles. I infer from the plaintiff's evidence that she did not deviate onto the defendant's side of the road. Therefore, at the moment of impact, the defendant's vehicle must have crossed the plaintiff's lane at a reasonable angle for both vehicles to have been damaged head-on, on their left side. This was obviously an entirely different factual situation to that which confronted the other drivers.

12. The opportunity for the plaintiff to react and take evasive action was also minimised by reason of the fact that the defendant's vehicle collided with Ms Wylde's vehicle immediately in front of the plaintiff. This would have created little or no opportunity for the plaintiff to take any effective evasive action which would have prevented the two vehicles from colliding at all, or in a lesser way. This is supposition only and not an express finding of fact, but it may be that the plaintiff's instinctive reactions caused her to position her vehicle in such a way as to prevent her from being physically at the closest point of contact between the two vehicles when they collided. Alternatively, it may have been fortuitous that she did not slow down more than she did by using her brakes or pulling over to the left. If the plaintiff had been a racing car driver, one might more easily be able to infer that she had instinctively taken such evasive action to minimise the risk of injury to herself, given the point of impact of the two vehicles. I note, however, this is not the degree of care and skill that the law demands of her as a driver. The law permits and recognises that some drivers will have better reaction times and cognitive decision making abilities than others, especially in stressful or out-of-the-ordinary situations.

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13. In my view, the opportunity for Mrs Fell-Smith and Ms Wylde to take evasive action to minimise the risk and possible impact of a collision was greater. Mrs Fell-Smith had no other vehicles in front of her to contend with or concern herself about. From a timing and opportunity to react viewpoint, even Mr Bergsma did not see the defendant's vehicle hit either Ms Wylde's vehicle or the plaintiff's vehicle (which was directly in front of him) and he was unable to avoid being struck by the defendant's vehicle. The plaintiff must have had less opportunity because she was in front of him.

14. In view of the travelling speeds of the vehicles, the time available to the plaintiff to take any evasive action in order to avoid or minimise the collision was only a few seconds. In my view, if the plaintiff had swerved to the left (as did the other drivers), anticipating in some way that the defendant would hit the vehicle in front of her, and also the likely direction of travel of the defendant's vehicle afterwards, it is very probable that the point of impact would have been on the driver's side of the vehicle.

15. I infer, and find accordingly, that the defendant's vehicle attempted to overtake another vehicle in front of oncoming traffic which was travelling in an easterly direction on Armadale Road, and of which Mrs Fell-Smith's car was the first. The defendant's vehicle forced Mrs Fell-Smith off the road before colliding with the next vehicle being driven by Ms Wylde. It then substantially front-end impacted the plaintiff's vehicle. I find that there was no reasonable action the plaintiff could have taken, or opportunity for the plaintiff to avoid the collision, either completely or in a way which would have minimised the result of the collision with her vehicle. Thereafter the defendant's vehicle went on to collide with Mr Bergsma's vehicle which was behind the plaintiff. I find that the defendant accelerated into the gap created by Mrs Fell-Smith when she started to pull over, thinking that he would be able to clear the remainder of the oncoming traffic. It is also probable that there was some point of hesitation before the defendant committed himself to complete his overtaking action when he realised he was going to collide with the affected vehicles.

Discussion

49 In closing submissions, Mr Staude for the plaintiff, described the case as a "simple case". This observation was no doubt made on the basis of the limited amount of oral evidence, all of which was non-contentious

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and unchallenged in any serious way. Mr Staude also relied on the damage to the motor vehicles as depicted in Exhibit 1 and, in particular the location of the damage to the parties' motor vehicles. He submitted that it was open to the Court to infer, as a matter of commonsense, that the defendant's vehicle moved sharply across the road in front of the plaintiff's vehicle (because the location of the point of impact on the plaintiff's vehicle was on the front left-hand side).

50 As an aid, Mr Staude produced a schematic drawing indicating the position and direction of the defendant's vehicle together with the damage to the three vehicles involved in the collision. The drawing did not indicate the position of Mrs Fell-Smith in front of the vehicle being driven by Ms Wylde. Mr Staude did not rely on the angle indicated as the direction of travel of the defendant's vehicle on the drawing (and nor could he), but suggested it was merely indicative of what it must have been. The purpose of the drawing was to make plain the predicament in which the plaintiff found herself, in contradistinction to the other drivers involved in the accident. The plaintiff was travelling in a convoy of vehicles in a single lane in an easterly direction on Armadale Road and approaching an intersection. Mr Staude relied upon the point of impact of the plaintiff's and defendant's vehicles for the inference that the plaintiff was unable to move left, as did the other vehicles in order to avoid the collision. If she had in fact done so, she would have put herself at the point of impact which may well have resulted in a more substantial injury. He distinguished the circumstances in which the other drivers found themselves from that of the plaintiff by reason that the plaintiff found the defendant "coming directly towards her", whereas Mrs Fell-Smith and Ms Wylde were at least confronted by the defendant's vehicle when it was still travelling parallel to both lines of traffic.

51 Mr Staude submitted that the plaintiff's evidence was in effect not challenged in cross-examination, particularly in relation to her alleged ability to take evasive action which may have prevented the defendant colliding with her vehicle at all. I note it was not put to the plaintiff that she should have done "this or that" in the circumstances which confronted her, and why had she not acted accordingly. In my view, it was not seriously suggested by the defendant that there was anything the plaintiff could have done or should have done which would have prevented a collision. Rather, the defendant's submission was to the effect that because the other three drivers swerved left at different points in time and were not seriously injured then, if the plaintiff had also swerved left (at some point in time), she would not have been injured as seriously as she was. With respect, this contention does not admit to the fact that each

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driver was confronted with the need to make a different decision based on the circumstances with which they had to deal. There was also the possibility that the plaintiff's vehicle may have been impacted on the driver's side if she had veered to the left at an earlier point in time. In my view the time interval available to the plaintiff in the circumstances, when it became apparent that a collision was imminent, did not permit a conscious process of decision-making to occur.

52 Even if the plaintiff should have observed the defendant a few seconds earlier than she did, there was nothing in my opinion that she should have or could have done as a driver exercising reasonable care and skill, that would have avoided the collision. Simply because an oncoming vehicle in front pulls out to overtake does not mean that a driver must take immediate evasive action by pulling off the road. At speed this in itself would create a dangerous situation for all traffic and a risk of the driver losing control of the vehicle on the gravel verge. There is always a point of time when the driver must assume, and is entitled to assume, that the oncoming vehicle will see that it is unsafe to overtake and will pull in. The drivers in this case all thought at some point before they took evasive action that the defendant would pull back onto the correct side of the road.

53 The defendant relies on s 4 of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 which relevantly provides:

"Contributory negligence, Court may reduce plaintiff's damages

(1) Whenever in any claim for damages founded on an allegation of negligence the Court is satisfied that the defendant was guilty of an act of negligence conducing to the happening of the event which caused the damage then notwithstanding that the plaintiff had the last opportunity of avoiding or could by the exercise of reasonable care, have avoided the consequences of the defendant's act or might otherwise be held guilty of contributory negligence, the defendant shall not for that reason be entitled to judgment, but the Court shall reduce the damages which would be recoverable by the plaintiff if the happening of the event which caused the damage had been solely due to the negligence of the defendant to such extent as the Court thinks just in accordance with the degree of negligence attributable to the plaintiff: …"

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54 Mr Allan, counsel for the defendant, in his closing submissions objected, in my view quite properly, to the "emotive" content of part of the plaintiff's written outline of submissions. I have approached my task of having to determine the issue of whether there was any negligence on the part of the plaintiff which caused or contributed to the accident without any regard to the plaintiff's present predicament and the injuries which she sustained as a result of the accident.

55 Mr Allan relied on the fact that Mrs Fell-Smith, Ms Wylde and Mr Bergsma all observed the defendant's vehicle at some point in time on the incorrect side of the road which, they assumed, was for the purpose of overtaking another vehicle. He said all three "kept watch" as required by the law and when they realised it was necessary, all three took evasive action to avoid the defendant's vehicle. The contributory negligence of the plaintiff was said to be the fact that "she never saw the defendant's car" until it appeared in front of her. This was based primarily on the plaintiff's statement as recorded by Senior Constable Goddard and, to a lesser extent, on the plaintiff's oral evidence. The latter was more detailed and not to the same effect which is always the risk a party takes when they seek to rely literally upon a statement obtained by a police officer (often for a different purpose). It was said that it was on this basis that the plaintiff was not cross-examined as to what she could have done to avoid the collision.

56 Mr Allan also submitted that the plaintiff was negligent for "failing to keep being aware of what was happening ahead of her and knowing that a vehicle had come out as if preparing to pass a vehicle in front of it". I observe that if this test was applied to Mr Bergsma, he would be guilty of negligent driving because on his own admission he never saw the defendant's vehicle collide with Ms Wylde's vehicle or the plaintiff's vehicle, both events occurring directly in front of him. Mr Allan was more specific, saying that the plaintiff failed to keep a proper lookout in two respects.

57 First, he submitted the plaintiff did not see the defendant's vehicle or what it was doing. The plaintiff's evidence is that, when she first saw the defendant's vehicle, it was already out of line from the normal position on the other side of the road. This on its own would not in my view be sufficient to base a finding of negligent driving on the part of the plaintiff. It was not made plain or clarified precisely when the plaintiff saw the defendant's vehicle out of line. However, in cross-examination she did say that it was before the vehicle was directly in front of her. With respect, I would reject the defendant's submission that had the plaintiff

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seen the defendant's vehicle coming towards her, she could have made a judgment about going to the right-hand side of the road or perhaps behind it or somewhere else. In my view, this calls for speculation and is not helpful. To suggest in the circumstances that the plaintiff should have driven her car into the path of oncoming traffic, behind of, or in front of the defendant's vehicle to avoid the defendant, does not admit to the possibility that the defendant himself might have pulled back to his correct side of the road, where he lawfully should have been. To my mind, the submission in effect invites the plaintiff to play "Russian roulette".

58 Secondly, the defendant submitted that the plaintiff breached her duty to keep a proper lookout because she was not aware that the two vehicles in front of her had swerved to the left to avoid the defendant's car. But, as already mentioned, Mr Bergsma did not either. This, in my view, is merely indicative of the speed at which everything happened in a few seconds. The fact is that two lines of traffic in single lanes travelling at about 80 kph were converging on each other. An intersection was coming up for the eastbound traffic. The plaintiff was hemmed in by cars in front of and behind her. She had a gravel verge on the side of the road pavement. She saw the defendant's vehicle before it was turned directly into her path as a result of colliding with the car in front of her. The plaintiff took evasive action by braking and sounding her horn.

59 In my view, when it became apparent to the plaintiff that the defendant's vehicle had changed course as a result of hitting Ms Wylde's car and a collision was unavoidable, the time available was too short to permit or allow for any rational or conscious decision-making process by a prudent driver exercising ordinary care and skill. Unfortunately, the plaintiff was third in line, and the first two vehicles were able to avoid any collision and a head-on collision in that order. However, as the defendant proceeded onwards with increasing speed, it was inevitable that at some point he would hit an oncoming vehicle, because he failed to move back across to his side of the road.

60 In further submissions Mr Staude, on behalf of the plaintiff, submitted that even if the Court made a finding of fact that the plaintiff did not keep a proper lookout, then there is no evidence that there was anything she could have done to avoid the collision, whether or not she had been keeping a proper lookout. In other words, the plaintiff submitted that any failure on her part to exercise the duty of care required of the driver of a motor vehicle was not causative of the collision. In his submission, even if the plaintiff had pulled over to the left, there would

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still have been a collision between the parties' respective vehicles. Therefore, in such circumstances, there should not be any apportionment of responsibility. Finally, Mr Staude submitted that any negligence of the plaintiff which contributed to the accident was so "negligible" that it should not attract any liability.

61 The defendant did not give evidence and no comment was made by either party in this regard. I was not invited to draw any adverse inference by reason of the fact that the defendant did not give evidence and, accordingly, have not given any consideration to the matter. I note no evidence was led as to the age or driving experience of the defendant.

62 The defendant relied on the decision of the High Court in Manley v Alexander [2005] HCA 79 and, in particular, the following passages of Gummow, Kirby and Hayne JJ:

"11. No doubt the appellant's attention was drawn to the figure of Mr Turner standing at the side of the road and behaving in a way that suggested that he might act in some way that would require the appellant to respond. But recognising one possible source of danger does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path.

12. It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Road at 4.00 am is properly to be described as remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events."

63 Mr Allan submitted by reference to this decision that driving requires a reasonable attention to all that is happening on and near the roadway which may present a source of danger, and that it will often require
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simultaneous attention to and a consideration of a number of different matters that might be present or coming up ahead.

64 With respect, I think this is an accurate statement of the law. It is trite that every case must be determined according to its own facts, particularly when assessing whether or not the conduct of one person is said to fall short of the duty of care owed to another person. In my opinion, it cannot be said that this is a case where the plaintiff failed to give reasonable attention to everything happening around her and that any such failure was causative of, or contributed to, the collision of the motor vehicles.

Conclusion

65 For these reasons I am not persuaded on the balance of probabilities that the circumstances as they confronted the plaintiff at the time of the accident on 11 July 2004 would have permitted or enabled an ordinary driver exercising reasonable care and skill to have avoided the collision with the defendant's vehicle. I am not satisfied that any of the particulars of the plaintiff's alleged negligence have been made out, and that even if they had that they would have caused or contributed to the occurrence of the accident.

66 I will hear the parties as to the precise terms of the orders to be made.