Taylor (an infant) as the son of the late Barry James Taylor by his next friend Anita Weinbrecht v Scriben - [2006] WADC 54

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TAYLOR (an infant) as the son of the late BARRY JAMES TAYLOR by his next friend ANITA WEINBRECHT -v- SCRIBEN [2006] WADC 54

CORAM: MARTINO DCJ

HEARD: 1011 JANUARY 2006

DELIVERED : 12 APRIL 2006

FILE NO/S: CIV 2639 of 2004

BETWEEN: JAMES ROBERT TAYLOR (an infant) as the son of the late BARRY JAMES TAYLOR by his next friend ANITA WEINBRECHT
Plaintiff
AND
RYAN BARRY JONATHON SCRIBEN
Defendant

Catchwords:

Negligence - Motor vehicle accident - Claim for damages under Fatal Accidents Act 1959 - Whether defendant negligent in manner of parking car - Whether deceased was negligent in riding of motorcycle and whether he failed to secure his helmet

Legislation:

Fatal Accidents Act 1959

Road Traffic Code regs 3, 176 and 187

Result:

Both defendant and deceased negligent
Damage reduced by 55 per cent for contributory negligence

Representation:

Counsel:

Plaintiff: Mr D I Connor
Defendant: Mr M A G Jenkin

Solicitors:

Plaintiff: Hoffmans
Defendant: State Solicitor

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

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Sibley v Kais (1967) 118 CLR 424

Case(s) also cited:

Abela v Giew [1965] NSWR 913
Commissioner for Railways (Qld) v Ruprecht (1979) 142 CLR 563
Manley v Alexander [2005] HCA 79
Moralee v Mosey (1990) 11 MVR 65
Mouat v Grey 12 MVR 381
Phillips v Britannia Laundry Company [1923] 2 KB 832
Studiniczky v Fehling 10 MVR 213

MARTINO DCJ: At approximately 8 pm on Tuesday, 2 January 2003 the late Mr Barry James Taylor was riding his Honda Firestorm motorcycle on Roe Highway in Forrestfield. He had left Cannington approximately 10 minutes earlier and I conclude he was travelling north on Roe Highway. He turned left into Berkshire Road. On Berkshire Road his motorcycle collided with a parked Mitsubishi Sigma sedan. Mr Taylor died as a result of injuries suffered in the accident.
The car had been parked on Berkshire Road by the defendant ("Mr Scriven"). Mr Scriven's surname is incorrectly spelt in the title of this action.
The plaintiff, James Taylor, is the son of Mr Taylor. In this action it is claimed on his behalf that the death of Mr Taylor was caused by Mr Scriven's negligence. By his next friend he claims damages from Mr Scriven under the Fatal Accidents Act 1959 for loss and damage it is alleged he suffered as a result of the death of his father. The alleged negligence is particularised in the statement of claim as being that Mr Scriven:
"1Parked [his] vehicle such that it created a hazard for other road users.
2Failed to have parking lights or hazard lights illuminated.
3Failed to place warning cones to warn other road users of the vehicle.
4Failed to move the vehicle off Berkshire Road.
5Parked [his] vehicle without any regard to the safety of other road users.
6Failed to have [his] vehicle towed away.
7Failed to comply with the provisions of the Road Traffic Act and regulations made thereunder."
The breaches of the Road Traffic Act and regulations made under the Act on which the plaintiff relied were not specified in the statement of claim, but during the trial it became clear that the plaintiff was relying on two breaches of the Road Traffic Code 2000, reg 176 and reg 187. Regulation 176 provides:
"(1)The driver of a vehicle who parks on a carriageway (except in a median strip parking area) shall position the vehicle in accordance with subregulation (2) to (8), (subject to the exceptions in subregulations (9) and (10)).
…
(6)If the carriageway has a continuous dividing line, dividing strip or a median strip, the driver of a vehicle shall position the vehicle at least 3 m from any continuous line, dividing strip or median strip, unless otherwise indicated by information on or with a parking control sign."
Regulation 187 provides:
"(1)A person shall not stop a motor vehicle or a trailer, on, or partly on, a carriageway, during the hours of darkness, unless the parking lights fitted to the motor vehicle or the trailer, and any clearance and side marker lights required by the Vehicle Standards to be fitted to the motor vehicle or trailer are operating effectively and are clearly visible.
…
(2)Subregulation (1) does not apply in respect of the lighting of parking lights or clearance and side marker lights ‑
(a)where the street lighting in the vicinity renders the motor vehicle or the trailer clearly visible at a distance of 200 m; …"
"Stop" is defined in reg 3 as meaning in relation to a vehicle:
"to stop the vehicle and permit it to remain stationary, except for the purpose of avoiding conflict with other traffic or of complying with the provisions of any law."
Mr Scriven denies that he was negligent and does not admit that James Taylor has suffered any loss or damage. He also pleads that Mr Taylor's death was caused or contributed to by his own negligence, the particulars of negligence being that Mr Taylor was negligent in that he:
"(a)drove at a speed which was excessive in the circumstances;
(b)failed to keep any or any proper lookout;
(c)failed to stop, slow down, s[w]erve or in any adequate other way whatsoever control or manage his motor cycle so as to avoid colliding with [Mr Scriven's] vehicle;
(d)failed to have his helmet adequately secured, or at all;
(e)rode his motorcycle whilst under the influence of alcohol and drugs."

The accident scene and the evidence of witnesses at and near the scene

Mr Scriven was not called as a witness but his statement to police officers was tendered in evidence by consent.
On the day of the accident at approximately 4.45 in the afternoon Mr Scriven was driving his car north along Roe Highway in Forrestfield. His brother was a passenger in the car. Mr Scriven and his brother were going to their respective places of work, Mr Scriven in Cannington and his brother in High Wycombe. They were both running late for work. Mr Scriven was due to start at 5 pm and his brother had been due to start at 4.30 pm.
As he was travelling along Roe Highway Mr Scriven's left front tyre became flat. He turned left off Roe Highway into Berkshire Road and travelled west for a short distance from Roe Highway. He then parked the Sigma on the left side of the road, as close as he could to the curb. He did not have a jack in his car and he was unable to change the tyre. He had used the jack on another car at his home a week earlier and the jack was still under that vehicle.
Mr Scriven's brother attempted to telephone friends, seeking to obtain a jack, but was unable to do so. A friend of Mr Scriven's brother took Mr Scriven and his brother to their places of work. Mr Scriven left his car where he had parked it, intending to return to it after he finished work at 9 pm.
There was a grass verge on the side of Berkshire Road where Mr Scriven had parked his car. Mr Scriven did not park his car on that verge. He provided the following explanation for not doing so in his statement:
"I didn't pull off the road onto the grass area because I thought at the time that it wouldn't be safe to jack the car up on the grass and when I had parked the car I thought that it would be safe enough as it was off the highway and that it appeared not to be a busy road.
I did not know that at the time there was no street lighting provided for in the area that I had parked my car as I don't know the area and when I left the car it was daylight.
…
I thought that at the time this was the safest place to park my vehicle. Also at the time I didn't leave any lights illuminated, as this would have flattened the battery."
In the area of the accident Berkshire Road runs approximately east west. Commercial and light industrial buildings are on the south side of the road and small rural properties are on the north. Vehicles travelling north on Roe Highway turning left into Berkshire Road enter that road by a slip road that curves to the left. For a person travelling west on Berkshire Road after having entered it from the slip road, Berkshire Road curves slightly to the left.
For vehicles travelling west on Berkshire Road the road verge on the left side is sufficiently wide for a car to park on it and it is clear of vegetation.
The speed limit on Roe Highway is 80 kilometres an hour. There is no speed limit sign on Berkshire Road facing a person travelling Mr Taylor's direction before the accident site. After the accident site there is a 70 kilometres an hour speed limit sign.
Mr Scriven had parked his car on Berkshire Road approximately 83 metres from the intersection with the slip road. There are no street lights on Berkshire Road where Mr Scriven had parked his car. It is a light industrial and semi‑rural area.
There were no eyewitnesses to the accident, but there were some people near the scene on the day of the accident who provided statements to police officers, others who attended at the scene of the accident and some who had contact with the deceased before the accident. None of those people were called as witnesses at the trial, but the plaintiff tendered into evidence by consent statements to police officers and statements by police officers who attended the accident scene.
Joy Beatrice Kelly and her husband were walking their dog on Berkshire Road, heading towards Roe Highway. As she was walking along Berkshire Road Mrs Kelly heard a motorcycle approaching from Roe Highway. The following paragraph appears in her statement:
"At the time of hearing the motorcycle approaching, the sound of the motor was accelerating and the noise was continuous until the sound of a loud bang, there was no screech of brakes or anything like that."
The loud bang Mrs Kelly heard was Mr Taylor's motorcycle colliding with Mr Scriven's car. Mrs Kelly was approximately 150 metres from the accident scene.
Mrs Kelly had seen Mr Scriven's car at approximately 5.45 pm earlier that day when she drove past it on her way home from work. She thought it was a stupid place to park the car because "cars do come off Roe Highway into the slip lane of Berkshire Road and accelerate up the street."
She went to the scene after the accident. Mr Taylor was lying on the road, being attended to by others who had arrived at the scene. Mrs Kelly noticed Mr Taylor's helmet on the road, approximately 20 metres from where he was lying. She picked it up and placed it on grass beside the road.
Mrs Kelly described the conditions at the time of the accident as follows:
"The weather conditions at the time was (sic) fine and it was a clear night, the roads were dry and the visibility in the area was alright other than it is a dark road as there isn't any street lighting in this area until Ashby Close."
Kegan Paul Cameron was the State Commercial Manager of Grace Removals at its branch in Berkshire Road, Forrestfield in January 2003. In the afternoon of 2 January he saw a car parked on Berkshire Road. The following appears in his statement:
"I normally have lunch between the hours of 2 to 3 pm, each day and on the 2nd of January 2003 which was the Thursday I was returning from lunch at between 3.05 to 3.15 pm the same date and noticed this creamy yellow car parked on the left side of Berkshire road.
I noticed that at the time the boot was open, which brought my attention to it, and noticed three people of ethnic appearance, one male with two females standing outside the vehicle on the grass area outside the Grace Brothers, frontage.
I noticed the male person was standing on the road trying to attract vehicles travelling in the opposite direction, I presume it was to request assistance."
Mr Cameron saw a car stop and he went back into his office.
It is likely that the car that Mr Cameron saw was Mr Scriven's car but that he is mistaken about the time that he first saw it along with other details such as the occupants. Mr Scriven is more likely to be accurate about those details as he was driving the car on his way to work. At the time that Mr Cameron first saw the car it was not of any great significance to him.
Mr Cameron drove past the car on three other occasions that afternoon. On each occasion the car was parked with its boot closed and no one in the vicinity. He next saw the car after the accident when he travelled along Berkshire Road at approximately 9.30 pm on his way to work after having received a telephone call in which he was informed that the alarm at his place of work had not been set. When he arrived at the accident scene police officers were already at the scene.
In his statement Mr Cameron said of Mr Scriven's vehicle and its location:
"I think that the vehicle was parked in a safe distance away from Roe Highway, although I think it would have been much safer had the car been parked on the grass area. When approaching this vehicle a driver would have enough time to travel around and avoid direct contact with this vehicle at a reasonable speed.
Also at the scene there is no street lighting other than a glow from the Grace Removal building, with spot lights provided for the car park area."
He described the weather conditions at the time of the accident as being "fine, the roads were dry and the visibility was normal".
Nathan Aaron Fischer-Rasmussen was at his home at 221 Berkshire Road at the time of the accident. He had seen Mr Scriven's car at about 6.30 to 7 pm when he arrived home. Mr Fischer‑Rasmussen did not hear any noise before he heard a loud crash coming from Berkshire Road opposite his house. He immediately went to the accident scene. He saw that Mr Taylor was not wearing a helmet and that a helmet was approximately 20 metres west of Mr Taylor. In his statement Mr Fischer-Rasmussen described the accident scene as being "pretty dark and this section of the street has no street lighting."
Mr Nathan Fischer-Rasmussen's wife Linda Jane Fischer-Rasmussen had also noticed Mr Scriven's car when she arrived home from work. She went to the accident scene with her husband and also saw that Mr Taylor was not wearing a helmet and that a helmet was approximately 20 metres from him. She described the accident scene and weather as follows:
"The weather conditions at the time was clear, the roads were dry, the visibility was clear except it was getting dark and was around dusk or just after. There is also no street lighting in this area.
The traffic in the area is normally busy during the day with the trucks and cars up and down the street, but later in the evenings it is fairly quiet."
Mr Nathan Fischer-Rasmussen's brother Aaron Jeffrey Fischer-Rasmussen had noticed Mr Scriven's car when he returned home at approximately 5.15 pm that day. Mr Aaron Fischer-Rasmussen also heard the crash of Mr Taylor's motorcycle into Mr Scriven's car. He "didn't hear any skidding just a loud crash." He went to the accident scene and saw the aftermath of the accident. Mr Taylor was not wearing a helmet.
While at the accident scene he noticed a helmet lying on the road approximately 10 to 15 metres from Mr Taylor and he saw a woman put the helmet down in a different place. In his statement he described the scene as follows:
"The Berkshire Road has no lighting between [Roe] Highway and about one third of the way up Berkshire Road. It is a sealed road with no traffic islands or cat's eye's. It holds a lot of industrial traffic like trucks travelling the road. The weather conditions of the day were fine. I do believe that the road lacks lighting."
Constable Sean Linstead Brown attended the accident scene at 8.20 pm. He saw Mr Taylor's motorcycle lying on its side in the centre of the road approximately 150 metres from Roe Highway. He also saw Mr Scriven's car. Mr Taylor was lying on his back in the centre of the road in front of Mr Scriven's car.
Senior Constable Kim John Traynor attended the accident scene at 8.35 pm. By that time Mr Taylor had been taken from the accident scene to hospital. The motorcycle and car were still at the scene. The night was dark and there were no street lights in the area. Senior Constable Traynor marked the positions of the vehicles and Mr Taylor's position, which he determined by blood on the road approximately four paces in front of Mr Scriven's car. Mr Taylor's helmet was a further 16 paces further along the road.
Senior Constable Traynor inspected the helmet. It had minor scratches on it. The chin straps were not secured but were in working order. There were no visible skid marks leading up to Mr Scriven's car. There was a tyre mark that extended approximately 1.5 metres from the left rear tyre of the car.
On 3 January 2003 Constable Michael Ferdinand Lang examined Mr Taylor's motorcycle and Mr Scriven's car after the accident. The motorcycle had its light switch in the high beam position. The headlight globe was smashed. The filament was blued and burnt, indicating that the light was illuminated at the time of the accident.
At the time of the accident Mr Taylor was living with Brooke Louise Fardella. He had purchased his motorcycle shortly before Christmas 2002, but had his motorcycle rider's licence for approximately 10 years. Following the purchase of the motorcycle Ms Fardella had seen Mr Taylor riding the motorcycle without securing the strap to his helmet. On one occasion when Ms Fardella was a passenger on the motorcycle she had difficulty undoing the strap on her helmet. When he assisted her to undo the strap Mr Taylor told her that was the reason why he did not do up the strap on his helmet.
Mr Timothy James McCoy, a friend of Mr Taylor, saw Mr Taylor leave Cannington at approximately 7.50 pm on the evening of the accident. In his statement Mr McCoy said:
"When I saw Barry ride off, as far as I know he did have his helmet strapped up."

Scientific and medical evidence

Two reports dated 4 February 2003 and 29 November 2004 from Mr Robert Hansson, principal chemist at the Chemistry Centre were also tendered into evidence. Samples from Mr Taylor were analysed at the Chemistry Centre. Mr Hansson calculates that Mr Taylor's blood alcohol content at the time of the accident as being between .038 per cent and .065 per cent depending on when Mr Taylor had his last drink. A blood sample had a methylamphetamine concentration of .03 mg/litre. In his second report Mr Hansson responded to a request from the solicitor for Mr Scriven as to the effect of methylamphetamine on Mr Taylor's ability to drive. Mr Hansson noted that he was not a clinical pharmacologist, but quoted from scientific literature that epidemiological evidence suggested that methylamphetamine adversely affects the skills necessary for safe driving.
The solicitor for Mr Scriven also obtained a report dated 18 April 2005 from Dr G A Cadden, a forensic pathologist at the PathCentre, which was tendered into evidence. Mr Taylor sustained severe pelvic and head injuries and died as a result of those injuries. Dr Cadden would not put the onus of the cause of death solely on the head injury. The solicitor had asked Dr Cadden four questions about Mr Taylor's helmet, however Dr Cadden felt that some of the questions were outside his expertise and within the expertise of a crash investigator or scientist. He did express the following opinions:
"There is an element of commonsense that a securely protected head could be less vulnerable to injury than a lesser protected (unsecured helmet) head in a high velocity impact … If it is being put forward that Mr Taylor's head impacted with the tarmac then the absence of extensive damage to the helmet would appear to suggest that the helmet was not worn throughout the time of the impact on the tarmac … Mr Taylor had severe head injury. It would be fair to say that one sees a spectrum of head injury in people with protection by a helmet and that spectrum would include the type of injuries seen in Mr Taylor. I certainly would not be able to give you an endorsement to the proposition that it was 'more consistent' [with his head impacting on the road or a vehicle whilst unprotected by a helmet] as it would appear simply to be too open to discussive argument."

Engineering evidence

Mr Rodney Style is an automotive engineering consultant with 36 years' experience with vehicle construction, 25 years' experience in race track and speedway accident investigations and over 20 years' experience in investigating motor vehicle accidents on roads. He has trade qualifications as a motor mechanic, various other qualifications in that field and is a fellow or member of several professional bodies in the automotive engineering field. He has a Bachelor's degree and a Master's degree in education. He has attended several courses on crash investigation in Western Australia and in other States. The plaintiff's solicitors commissioned a report from Mr Style on the accident, called him as a witness at trial and tendered his report into evidence.
To prepare his report Mr Styles inspected statements and photographs taken by investigating police officers and also attended the accident scene where he inspected the scene and took further photographs. Included in the papers inspected by Mr Styles was a memorandum by First Class Constable Hockey in which he wrote that Mr Scriven had driven approximately 150 metres on Berkshire Road before parking his vehicle. Mr Styles measured the distance from the give way sign on the slip road to where Mr Scriven's car appeared in the photographs taken at the scene as being 83.5 metres. After deducting 1.5 metres, being the estimated distance the vehicle moved in the collision, he estimated that Mr Scriven had parked his car 82 metres along Berkshire Road.
The lack of damage to the helmet indicated to Mr Styles that it was jarred from Mr Taylor's head at the first road contact.
The motorcycle's headlights would have provided a straight line illumination for vision of at least 100 metres. However in Mr Style's opinion "the shape of the roadway did not allow the motorcycle headlights to illuminate the reflective material of the stationary Sigma until 40 metres distance away." If the Sigma's lights had been on it is Mr Styles' opinion that Mr Taylor would have had sufficient peripheral vision that the rear lights on the car would have provided at least 82 metres to react and avoid impact.
In his report Mr Styles wrote:
"Since the force of impact was below the motorcycle centre of gravity, the Victoria Police, Technical Accident: Investigation and Reconstruction recommend the use of Searle's Equation".
Mr Styles estimated the centre of gravity of the motorcycle with the rider on board as being 860 millimetres. The height of the top of the Sigma's rear bumper was 610 millimetres and Mr Styles calculated the point of impact as being between 560 millimetres and 610 millimetres from the ground.
Mr Styles used Searle's equation and calculated the speed of the motorcycle at the point of impact as being between 49 and 51 kilometres an hour.
The solicitors for Mr Scriven obtained reports from Mr Martin Simms dated 5 April 2005, 22 June 2005 and 12 August 2005 and Mr Simms was called as a witness at the trial. Mr Simms is a consultant engineer. He holds a Bachelor of Applied Science in mechanical engineering and a graduate diploma in computer studies and is a fellow of the Institution of Engineers Australia. He has 16 years experience in practice as a consulting engineer. His experience includes investigating and reporting upon industrial, vehicle and personal accidents and mechanical failures, the design of mechanical equipment and the testing of motor vehicles for compliance with Australian Design Rules.
Mr Simms estimates that at the time of the accident Mr Taylor's motorcycle was travelling at approximately 70 kilometres an hour. In making this estimate Mr Simms disregarded the distance that the Sigma moved. If the force of the collision moved the Sigma 1.5 metres then the motorcycle's speed could be calculated at 30 kilometres an hour. Mr Simms considers this almost certainly too low and suggests that the distance the Sigma was pushed has not been accurately reported and that other factors such the energy expended in crushing the vehicles are significant. Based on the estimated distance of Mr Taylor's body from the point of the collision Mr Simms calculated the speed at the point of impact at 68 kilometres an hour. However that distance was not measured precisely and so it is not possible to accurately calculate the speed of the motorcycle in that way.
If the headlight of Mr Taylor's motorcycle complied with the Australian Design Rules that applied to it the headlight would have illuminated the road surface to approximately 65 metres ahead on low beam and 400 metres on high beam. As I have noted the headlight switch on Mr Taylor's motorcycle was in the high beam position.
In Mr Simms' opinion the distance of the motorcycle from the Sigma at which the motorcycle's headlight would have first illuminated the Sigma depends upon the path the motorcycle took when it rounded the corner, ie, how wide it swung and how quickly it moved to a path parallel with the kerb. The more quickly that the motorcycle's path was parallel to the kerb on Berkshire Road the greater would be the distance between the motorcycle and the Sigma at the point at which the motorcycle's headlight first illuminated the Sigma. In Mr Simms' opinion the distance could range between 20 metres and 60 metres.

Conclusions as to evidence of witnesses at scene and experts

Although in his report Mr Styles wrote that the use of Searle's equation was recommended by the Victorian police where the force of impact was below the centre of gravity, in cross-examination Mr Styles' evidence was that it is his view that Searle's equation could be applied even if the force of impact was above the centre of gravity. A large part of the paper from which Searle's equation is drawn relates to pedestrians being struck by vehicles. One of the aspects of the equation relates to the person bouncing on or after impact with the road.
In my view the motorcycle's centre of gravity with a rider on board was not 860 millimetres above the ground. The top of seat of a motorcycle of the same type as that ridden by Mr Taylor was measured by Mr Styles to be 765 millimetres from the ground. The specification sheet of the motorcycle specified a 192 kilogram dry mass. It is unlikely that the mass above a point 95 millimetres above the seat will be the same as the mass of the motorcycle below that point. Mr Simms, an engineer who provided reports to the solicitors' for Mr Scriven, estimated the centre of gravity as being approximately half the height of the motorcycle. I consider that far more likely. In my view it is unlikely that the point of impact was below the motorcycle centre of gravity. I am not satisfied from Mr Styles' evidence that Searle's equation provides an accurate estimate of the speed of the motorcycle at the point of impact with the Sigma.
For reasons I have noted earlier Mr Simms' estimate of the speed of the motorcycle was an approximation only. In my view it is not possible to make any precise conclusion as to the speed at which the motorcycle was travelling on Berkshire Road. I do not conclude that the motorcycle was travelling at an unsafe speed.
I have noted that Berkshire Road curves slightly to the left after the slip road from Roe Highway. That curve is very slight and the road quickly becomes straight. It is shown on a plan prepared by the Shire of Kalamunda which is contained in Mr Styles' report. That report also includes a photograph, numbered 11R at p 25 of the report which Mr Styles has marked in an endeavour to show the direction of the light of the motorcycle at the point of the curve. In my view that photograph does not demonstrate or assist in determining the path of the light of the motorcycle. Photographs record three dimensional scenes in two dimensions. That two dimensional record cannot be relied upon as being an accurate representation of distance or lines.
Mr Styles estimated the distance from which Mr Taylor could see the Sigma would have been 40 metres. Mr Simms' estimate was between 20 metres and 60 metres. Although I do not regard photograph 11R as being helpful I accept that the distance was approximately 20 metres and 60 metres and that 40 metres is a reasonable estimate.
Because the curve on Berkshire Road is so slight I accept that if the Sigma's lights had been on Mr Taylor would have been able to see them as soon as he entered Berkshire Road, 82 metres from the Sigma.
In his report Mr Styles wrote:
"I challenge the inference that the motor cycle rider did not attempt to swerve to avoid the Sigma based on the final position of the rider on the road."
He then cites several papers but does not explain his reasoning. In his evidence Mr Styles said that "[Mr Taylor] was probably not expecting [the Sigma] and had to process the information then decide what action or reaction to take and in doing so didn't have the time to avoid the vehicle." [T 29]
There is no evidence from the marks at the accident scene nor the sounds heard by the witnesses at the scene that Mr Taylor attempted to apply the brakes on his motorcycle, slow down or swerve to avoid the Sigma and I conclude that he did not do any of those things.
Neither Mr Styles nor Mr Simms are qualified to assess reaction time, but both referred to it in their evidence and to the fact that there have been many studies on reaction time. Their evidence was not precise. Mr Styles' evidence was:
"If you're expecting it, the reaction time is about a second. If you are in average thinking mode, the modes that we get from the research throughout the world is between one and a half and two and a half seconds."[T 28]
Mr Simms' evidence was:
"Reaction times are a function of the state of mind of the individual, their state of rest, whether they're rested or otherwise, whether they've got something on their mind and concentrating, whether they're expecting a hazard. All I really said was that it's accepted that for an alert, young adult male one second is about the sort of time for an alert, adult male of the deceased's age doing an activity that requires a reasonable degree of concentration." [T 102-103]
I am unable to reach any precise conclusions as to reaction time from this evidence. I accept that it takes time to react and that the time varies from person to person and depends upon a number of factors, including alertness.
While I accept that alcohol and methylamphetamine consumption can adversely affect a person's ability to drive I cannot conclude from the evidence in this case, which I referred to earlier in these reasons, that Mr Taylor's capacity to drive was impaired by the consumption of alcohol or drugs.
I conclude from the evidence of the location and state of Mr Taylor helmet after the accident and the evidence that he had said before the accident that he did not do up the straps on his helmet that he did not do up the straps on his helmet before the accident. Mr McCoy's statement that as far as he knew Mr Taylor did have his helmet strapped up does not alter that conclusion because it does not appear to have been based on observation.

Conclusion as to negligence of Mr Scriven

As a user of Berkshire Road, Mr Scriven owed a duty of care to other users of the road to take reasonable care to avoid foreseeable injury. That duty was not confined to careful and attentive users of the road, but extended to bad and inattentive users of the road: March v E & M H Stramare Pty Ltd (1991) 171 CLR 506.
Mr Scriven left his car on a road without any street lighting and in an area which was not built up. When he left his car on Berkshire Road he did not know that there was no street lighting in the area as it was daylight. He could easily have found out by looking for lamp posts. He intended to return to his car after dark. In my view it was foreseeable that driver taking the course taken by Mr Taylor would not expect a car to be parked where Mr Scriven's car was parked and, in the absence of street lighting and any lighting on the car, not notice the car until it was too late to avoid a collision.
In my view this foreseeable risk of injury to other road users could easily have been prevented by Mr Scriven driving his car off the road onto the verge. It could also have been prevented by Mr Scriven leaving the park lights on his car on, so that when it became dark road users would see his car as soon as they entered Berkshire Road from the Roe Highway slip road. I conclude that Mr Scriven was negligent in leaving his car parked in the location in which he left it and without the park lights on.
It is my view that the road traffic regulations have no bearing on this conclusion. Road traffic regulations are not definitive of the duty of care owed to other users of the road: Sibley v Kais (1967) 118 CLR 424. Regulation 176 exists to ensure that drivers of motor vehicles can pass parked cars without crossing the double white lines. That is not a factor in this accident.
Notwithstanding the definition of stop in the Road Traffic Code I think it unlikely that Mr Scriven has been in breach of reg 187 because when he stopped his car and permitted it to remain stationary it was not during the hours of darkness.

Conclusion as to negligence of Mr Taylor

For reasons I have expressed I do not consider that Mr Taylor was negligent in the speed at which he was travelling. Nor is there sufficient evidence from which I can conclude that he was negligent in driving after having consumed alcohol or drugs. There was evidence from which I can conclude that he had consumed alcohol and drugs, but insufficient for me to conclude that the amount he had consumed impaired his ability to drive safely.
I am however satisfied that Mr Taylor was negligent in two respects. The first is that he failed to keep a proper lookout. In my view if he had paid attention to the road in front of him he could have seen Mr Scriven's car in sufficient time to avoid the accident by stopping or swerving to avoid the parked car.
The second is his failure to secure his helmet. The severe pelvic injuries that Mr Taylor suffered would not have been reduced by wearing a helmet, but his head injuries would have been, and his head injuries were a contributing factor to his death.

Apportionment of liability

The making of an apportionment of liability between Mr Scriven and Mr Taylor involves an assessment of both their culpability and the relative importance of their acts in causing Mr Taylor's death: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529. It is my view that the appropriate reduction for contributory negligence of Mr Taylor in failing to keep a proper lookout and failing to fasten his helmet is 55 per cent, so that the plaintiff is entitled to damages of 45 per cent of the loss suffered by the death of his father.

Assessment of damages

James was born on 15 August 1995. His mother is Anita Christina Weinbrecht. Mr Taylor and Ms Weinbrecht lived together for approximately five or six years. They separated in approximately 1998 or 1999. James is the only child of their relationship. After their separation James remained living with Ms Weinbrecht. Ms Weinbrecht has another child who also lives with her.
Ms Weinbrecht gave evidence at the trial. She was clearly an honest witness and I accept her evidence.
Mr Taylor was not always close to James, but they became close. Ms Weinbrecht's evidence was:
"It took him a couple of years but as from about the age of five when he was in school at the age of school he was very close to his son. He had him all weekends. He was … continuously with him. They were, like, best of friends." [T 8-9]
In mid to late 2002 Ms Weinberg went to the north of the State to work and Mr Taylor stayed in her house and looked after the two children for approximately two months.
After Ms Weinberg returned to her home Mr Taylor rented a house close to her house. James would stay with Mr Taylor from Friday afternoon to Monday morning and on occasions Mr Taylor would pick James up after school.
Ms Weinberg and Mr Taylor had agreed that when James was older he would live permanently with Mr Taylor, but they had not fixed a time when this would occur. Mr Taylor had decided to purchase a house near to the house in which Ms Weinberg lived.
Mr Taylor was required by the Child Support Agency to pay child support to Ms Weinberg for James. In June 1997 the monthly amount payable was $459.50, in the period from 1 January 2000 to 30 June 2000 it was $615.67 and from 1 January 2001 to 31 March 2002 it was $399.67. He was not a good payer. Because he had so much contact with James he did not feel he should make all the payments he was required to make.
Mr Taylor purchased clothing for James and gave gifts to him. He had also purchased a dog for him.
Mr Taylor worked as a machinery operator in earthworks. His income after payment of income tax in the years before his death was:
Year endedAfter tax income
30/6/94$29,176
30/6/95$27,189
30/6/96$30,717
30/6/97$33,907
30/6/98$35,486
30/6/99$31,797
30/6/00$28,433
30/6/01$41,199
At the time of the accident Mr Taylor was about to commence work in a new job in regional Western Australia.
I am satisfied that Mr Taylor was very close to James and that he provided him with financial support. He did not always make the Child Support payments he was obliged to make because he felt he was relieved of his obligation to do so by the other support he provided to James. Having regard to the imprecise nature of the evidence it is my view that it is appropriate to estimate the total of financial support and gratuitous services and support at $400 a month, or $4,800 per annum, and to make no further deduction for contingencies.
I therefore calculate past loss of dependency at $15,584. Interest on that sum at the rate of 3 per cent per annum for the whole of the period since the date of death is $1,518.
In my view it is appropriate to calculate dependency to the age of 18, a period of approximately nine and a half years. I use a multiplier of 380.5 to calculate the loss for that period and calculate the future loss of dependency as being $35,123.
The total loss is award to James is therefore $52,225 and the award I make after allowing for contributory negligence of Mr Taylor is $23,501.
Claim is also made for the balance of funeral expenses, which were, I understand, paid by Mr Taylor's parents. Although not expressly pleaded as persons on whose behalf the claim is made I am willing to interpret the claim as impliedly made on their behalf. The total of funeral expenses is $6,670.73. After allowing for contributory negligence the award would be $3,000, in round terms. The compulsory insurer has paid $2,250 and so the award for funeral expenses is $750.