Thomas Ashley Davey v Benjamin Michael Geoffrey Nylen - [2013] ACTMC 13

THOMAS ASHLEY DAVEY v BENJAMIN MICHAEL GEOFFREY NYLEN [2013] ACTMC 13 (24 April 2013)

DAMAGES FOR PERSONAL INJURIES - whether defendant contravened Australian Road Rules - whether defendant failed to keep proper lookout - whether plaintiff guilty of contributory negligence.

No. CS 339 of 2011

Magistrate: Morrison
Magistrates Court of the ACT

Date: 24 April 2013

IN THE MAGISTRATES COURT OF THE         )
  )          No. CS 339 of 2011
AUSTRALIAN CAPITAL TERRITORY               )

BETWEEN:THOMAS ASHLEY DAVEY
Plaintiff

AND:BENJAMIN MICHAEL GEOFFREY NYLEN
Defendant

DECISION

Magistrate:  Morrison
Date:  24 April 2013
Place:  Canberra

The plaintiff's claim is for damages for personal injuries arising out of a motor vehicle accident which took place on 8 August 2010 at the intersection of Tillyard Drive and Ginninderra Drive in Canberra.
It is not in dispute that a collision took place on that day between a Falcon motor vehicle driven by the plaintiff and a Subaru motor vehicle driven by the defendant. It is not in dispute that a giveway sign exists at that intersection facing the direction in which the plaintiff’s vehicle was travelling.
For convenience in these reasons I refer to the right turn lane off Ginninderra Drive as the slip lane and to the lane immediately next to it as the through lane.
The plaintiff's case was conducted on the basis that the defendant changed lanes from the through lane into the slip lane on Ginninderra Drive only very shortly before the intersection. The plaintiff said he had concluded, on the basis of his observations of the defendant’s vehicle, that the defendant was intending to continue to travel straight along Ginninderra Drive in the through lane and that he (the plaintiff) could safely turn right across the intersection and into the merge lane on Ginninderra Drive heading west. Had the defendant continued to travel straight on Ginninderra Drive no collision would have occurred. The plaintiff says that the late lane change by the defendant and his subsequent turn right into Tillyard Drive was negligent and caused the collision along with his subsequent injury.
The defendant gave sworn evidence. He said that he drove his vehicle into the slip lane on Ginninderra Drive well before the intersection and activated his right indicator. He denied any late lane change before turning right.
In his sworn testimony the plaintiff said he first observed the defendant’s vehicle when it was on Ginninderra Drive at about the point where the slip lane commences. He marked exhibit P2 with the letter B to indicate that point. He said that he did not see the Subaru vehicle move from the through lane into the slip lane. As I understood his evidence he was saying that even though he did not see the Subaru change lanes, it must have been very late — meaning very close to the intersection and across the unbroken white dividing line between the slip lane and through lane – because the Subaru was not in the slip lane when he last saw it.
The principal difficulty for the plaintiff is the lack of precision in his testimony about his observations of the position of the Subaru.
After giving his evidence about the point at which he first observed the Subaru vehicle (and marking it on exhibit P2) the plaintiff said that he “continued on”. He said that the other vehicle was still in the through lane and not the slip lane and that its turn indicator was not operating.
In giving the evidence to which I have just referred, the plaintiff did not say whether that observation of the Subaru being “still in the though lane” was made as part of his continuing observation following first seeing the Subaru vehicle or if he looked away and then looked back later. If it was that the observation referred to was made as part of continuing observation after the Subaru vehicle was first seen – that is that the plaintiff saw the Subaru and continued to watch its progress for some time before looking away – there is no evidence as to the period of time or the distance over which its progress was observed. If it was that the plaintiff first saw the Subaru at the start of the slip lane, looked away and then looked back and, on a second occasion made the observations referred to, there is again no evidence as to when that second observation took place and, most importantly, how far the Subaru was from the intersection at that time.
Mr Richards presses on me that the absence of precise evidence demonstrates the plaintiff’s candour in conceding that he did not see the defendant’s vehicle moved into the slip lane, but that is not to the point. The plaintiff’s argument relies upon a premise that, whilst he did not see the point at which the Subaru changed lanes, it must have been a late lane change because when the vehicle was last observed by the plaintiff it was not in the slip lane. But in the absence of evidence about a point in the progress of the Subaru vehicle where it was observed to be still in the through lane, no inference about a late lane change can rationally be drawn.
As I have said, there is no evidence from the plaintiff as to period of time or distance over which he observed the progress of the Subaru. Exhibit P2 marks the position of the Subaru when first observed by the plaintiff. It was at that time at the very start of the slip lane. The plaintiff was not asked to mark on exhibit P2 the position of the Subaru vehicle when he last saw it in the through lane. No observations of the vehicle at the point in time when it was at the position marked “B” on Exhibit P2 would justify the plaintiff concluding that the driver of the vehicle was intending not to turn right.
In the course of addresses, Mr Richards pointed out that the plaintiffs testimony was that, albeit at an unspecified point, the plaintiff observed the defendant’s vehicle still in the right lane - i.e. the through lane - and not in the slip lane. Mr Richards says that because of the plaintiffs reference to both the right lane and the slip lane in that answer I can infer that the observation was made at a point in time when there was a slip lane – in other words at a point where the road was three lanes wide.
The difficulty for the plaintiff with that submission is that it is apparent from exhibit P2 that Ginninderra Drive becomes three lanes wide a significant distance before the intersection, and certainly well before the unbroken white line divides the through lane from the slip lane. In other words, even if I accept that the plaintiffs reference to the right lane and the slip lane means that his last observation of the Subaru was at a point when the road was three lanes wide, it does not necessarily follow that the defendant has breached the road regulations in the manner pleaded by the plaintiff or that it was reasonable for him to conclude that the driver of the vehicle was intending not to turn right.
Given the plaintiff’s oral testimony in Court about his observations of the defendant’s vehicle, I regard the evidence before me by way of accident diagrams prepared by him after the event only as material demonstrating what he wrongly assumed to be the movement of the Subaru before the collision rather than as some form of separate evidence of his observations at the time. Because of the absence of evidence about the point at which the lane change by the defendant’s vehicle took place, the issue of the activation of that vehicle’s right indicator loses much of its significance, but in any event the evidence does not satisfy me that the defendant failed to activate his indicator.
In the end result I am not satisfied that the plaintiff has made out a case for negligence against the defendant based on what I have described as the late lane change – that is a case based on the alleged breach of rule 48 of the Australian Road Rules.
The plaintiffs claim however includes other allegations of negligence including one based on a failure by the defendant to keep a proper lookout. I think it is fair to say that whilst Mr Richards did not press on me in address that a finding for the plaintiff should be made on the basis of a failure by the defendant to keep a proper lookout, such a claim was not abandoned, and when I raised it during addresses Mr Pappas conceded that it had been pleaded.
Insofar as a claim based on a failure to keep a proper lookout is concerned, the defendant’s evidence was that he first observed the plaintiff’s vehicle when he was at about that point where the slip lane commenced. He said the plaintiff’s vehicle was then some distance away coming down Tillyard Drive. In the early part of his evidence in chief, the defendant was asked when he next saw the plaintiff’s vehicle. He replied by saying that he next saw the plaintiff’s vehicle just before the collision - that is as it was coming across the intersection only a metre or so away from him. He went on to say that he braked heavily and swerved slightly but that it was too late to avoid a collision.
Much of the cross-examination of the defendant in this area was directed towards what the defendant had said about the presence of a bus and one or two other cars. I did not find it particularly useful. There were no other vehicles according to the plaintiff. The defendant said there were but that they were gone by the time of the collision and that the plaintiff’s vehicle was not hidden by them. I regard that evidence as irrelevant and conclude that there is no need to make a finding about the presence or absence of those other vehicles.
In the course of the cross-examination on that subject however, the defendant was asked again about his observations of the plaintiff’s vehicle. In his evidence in chief he had referred to observing the plaintiff’s vehicle on the two occasions to which I have just referred – first as he was just entering or about to enter the slip lane and subsequently only immediately prior to the collision when the vehicles were about 1 metre apart. At this point in the cross-examination however the defendant said that he saw the plaintiff’s vehicle at another intermediate time before the collision. He said that was at a time when he was about 3 to 5 metres before the last metre. I understood him to mean about 3 to 5 metres before the other point he had referred to when the vehicles were 1 m apart. He said that, at that time, the plaintiff’s vehicle looked as though it was slowing down to give way and was still on Tillyard Drive before the giveway sign.
Without objection, evidence in the plaintiff's case was put before me by way of material prepared by an investigator engaged by the defendant. That material includes the transcript of a recorded interview between the investigator John Collins and Constable Holly Hawke. Constable Hawke is one of two police officers who attended the accident scene. Constable Hawke was not called to give evidence. I note that the interview took place on 10 November 2010 - some 3 months after the accident. The transcript does not record that any questions were asked of the constable about her own assessment of the reliability of her recollections at the time of the interview. Nor does the transcript record whether the constable had access to or used any material to refresh the memory at that time.
Having said that, the transcript does not indicate that the constable had any difficulties with her recollections. It appears that she has a good recall of the layout of the accident scene and the apparent circumstances under which the accident took place. She is asked at question 35 whether she has any recollection of the conversation she had with the drivers at the scene and she replies unequivocally with “Yes, I do.”
The transcript goes on the record the following questions and answers number 36 to 40:
Q.36 Could you please tell me what that was?
A.Okay. The first driver I spoke with was the driver of vehicle 2, Thomas Davey. He seemed to be in a little bit of shock at the time. I asked him if he was okay. He said yes, he was fine. I asked him what had happened. And he said that the other vehicle had run into the back of him and that it all happened really quickly. And he stood by his car while I went over and spoke with the driver of the other vehicle, who was Benjamin.
Ben told me that he was driving along Ginninderra Drive and that he proceeded through the intersection and that he didn’t see that there was a car coming from Tillyard Drive. He didn’t see a car stopped at the intersection and he – he didn’t see anyone coming down the road. So he – he says that he thinks that the driver of vehicle 2 came out of nowhere, as is a catch phrase used a lot in accidents.
Q.37Okay. Tell me do – do you know if the driver of vehicle 1, Benjamin Nylen, had his right-hand blinker on prior to the collision?
A.Mr Nylen told me that he had his indicator on. However, I wasn’t there so I can’t be sure.
Q.38Okay. And is there any indication that – that Benjamin Nylen may have come from the left-hand lane of Ginninderra Drive to turn into Tillyard Drive rather than turn from the - straight from the right turn lane?
A.There was no indication to suggest that, other than the driver vehicle 2 said that he didn’t see the driver of vehicle 1 coming, so that he assumed he must have been coming fast because he didn’t see him.
Q.39Okay. So that’s the – and that – that is the indication that – that some allegation that vehicle 1 was travelling fast, is that – is that right?
A.That was the allegation, yes. That account.
Q.40Okay. Is there any evidence to support that?
A.No. There is no evidence to support that.
That evidence of what the Constable reported as being said to her by the defendant is consistent with the version given by the defendant in his evidence in chief and contrary to what he said under cross examination.
The defendant was referred in cross examination to question and answer 36 in the interview between the investigator and Constable Hawke. He was asked if he said those things to the constable. His response was somewhat guarded and to the effect that it may have been what he said at the time but that he did see the plaintiff’s vehicle.
In addition, under cross-examination the defendant said that his vehicle was travelling at 30 to 40 kph immediately before the point of collision. It is apparent that the front of his vehicle struck the rear left of the plaintiff’s vehicle and that the plaintiff’s vehicle was well into the intersection at the time of the collision. The defendants evidence about his intermediate observation was that he saw the plaintiffs vehicle which appeared to be slowing to give way and that he then looked away to check for on-coming traffic. It is implicit in what he said that he saw nothing at that time about the movement of the plaintiff’s vehicle to cause him concern. However, on his version of events the plaintiff’s vehicle then travelled past the end of Tillyard Drive and well into the intersection in the time that it took the defendant’s vehicle, travelling at 30 to 40 kph, to move the 4 to 6 metres to the point of impact.
In the end result I do not believe the defendant when he said under cross examination that he observed the plaintiffs vehicle on that intermediate occasion – by that I mean at the time when he says he was 3 to 5 m before the other point he had referred to just before the point of impact. It is contrary to what he said in his evidence in chief. It is contrary to what is reported as having been said by him to Constable Hawke immediately after the collision and it is inconsistent with his evidence of the distances the vehicles must have travelled immediately pre-collision.
I find that the defendant did observe the plaintiff’s vehicle on the first occasion he described – that is when he was at or about where the slip lane commences but that he did not otherwise see the defendant’s vehicle until a point immediately before the collision. I find that because he did not see the plaintiff’s vehicle, the defendant did not have time to properly apply the brakes of his vehicle or to take any meaningful evasive action. The absence of skid marks supports that finding.
It is apparent from the photographic evidence of the layout of the intersection and implicit in the oral testimony of both plaintiff and defendant that there was nothing preventing them from seeing each other’s vehicles for a significant distance leading up to the intersection. I am satisfied that in the conditions prevailing at the time and given the layout of the intersection the defendant’s failure to observe the plaintiffs vehicle between the first and last points described above was a result of him failing to keep a proper lookout, that that failure on his part was negligent and was a cause of the collision and its consequences.
Having said that, it is clear that the plaintiffs own conduct contributed in a material way to the collision and its consequences. He was travelling on a road which he knew terminated at a T intersection. He was familiar with the intersection. I infer that he knew that the speed limit on the through road – that is Ginninderra Drive – was 80 km/h at that point. He knew that the intersection was not controlled by traffic lights and that there was a slip lane off Ginninderra Drive for vehicles turning to the right. Because he was familiar with the intersection he would have known that the line of travel for vehicles turning right is only interrupted if there are vehicles travelling in the opposite direction along Ginninderra Drive, and there is good vision of any such oncoming vehicles. And of course he knew of the existence of the give way sign facing his line of travel along Tillyard Drive. In all the circumstances he should reasonably have maintained a careful look out for vehicles turning right off Ginninderra Drive onto Tillyard Drive so as to enable him to comply with the obligation on him to give way to them. I find that he did not keep a proper lookout and that he did not give way to the defendant’s vehicle as he was obliged to do. I find that his failures just described contributed to the collision and his injury.
In its joint judgement in Sibley v Kais (1968) 118 CLR 424, the High Court referred to the right-of-way rule as not constituting the “be all and end all” in relation to questions of civil liability. The Court went on to say:
The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to "reasonable care" is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected.
I was not referred to any authority for adopting a different approach where an intersection is controlled by a giveway sign and there does not appear to be any reason as a matter of principle for doing so.
Having regard to what I have concluded is the departure of each of the plaintiff and the defendant from the standard of care of a reasonably prudent driver in the circumstances and the degree to which the acts or omissions of each contributed to causing the collision, I conclude that blame should be attributed as to the plaintiff 85% and as to the defendant 15%.
I turn to consider the question of quantum. The only claim pursued at hearing was one for pain and suffering along with reimbursement of $132.90 for two consultations with a general practitioner and an amount of 60 odd dollars for analgesics so as to round that figure up to $200. The medical evidence before me is largely limited to a report obtained by the defendant from orthopaedic surgeon Dr James Bodel dated 18 April 2011 and which is exhibit D1. Dr Bodel’s opinion is that the plaintiff suffered a soft tissue injury to his back which has subsequently completely resolved. In his oral testimony the plaintiff described what he said was general soreness in his lower back. He said that it was not overly serious and that it lasted for 3 to 4 weeks. He also describes soreness in his neck but no claim for damages for that was pursued. It was not suggested that the pain experienced by the plaintiff during that 3 to 4 weeks was such as to interfere with his usual work or other activities. He did not give evidence about any need to take painkillers but the report of Dr Bodel makes oblique reference to some medication for his pain having been ordered, presumably by his GP. There is no suggestion of any risk of future degenerative changes.

It is difficult to assess the plaintiff’s damages because of the very slight nature of his injury and the very low level of pain and discomfort caused by it. He described general soreness which was not overly serious and which lasted for a period of perhaps 30 days. Doing the best I can with the limited evidence before me and nothing by way of guidance by authority I assess damages for pain and suffering at $1,000.00 before apportionment.
The plaintiff gave evidence that he saw his general medical practitioner on 2 occasions in connection with his sore back. On the basis of the material before me I accept that he did so. A claim is made for special damages by way of the cost of analgesics and of those 2 consultations, although I note that the notice of past benefits refers to the cost of only one of them. I am prepared to allow say $20 by way of reimbursement for the cost of analgesics. I infer that the Plaintiff was bulk billed by his GP but it is not clear to me precisely what order is sought about satisfaction of any Medicare charge given that the notice refers to only one consultation. I was informed by Mr Pappas for the defendant on completion of the hearing that detailed submissions would be made as to costs whatever the outcome. In the circumstances I make no orders at the moment and I will hear from the parties as to the form of orders to be made to give effect to the findings set out in these reasons and as to costs and any ancillary orders sought.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the Reasons for Decision of his Honour, Magistrate Morrison.
Associate: Gary Khoo
Date: 24 April 2013

Counsel for the Applicant:  Mr D Richards
Solicitor for the Applicant:  Slater & Gordon Lawyers
Counsel for the Respondent:  Mr J Pappas
Solicitor for the Respondent:  Sparke Helmore Lawyers
Date of hearing:  8 April 2013
Date of judgment:  24 April 2013