| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : THOMPSON -v- ROXBURGH [2005] WADC 90 CORAM : MULLER DCJ HEARD : 2 MAY 2005 DELIVERED : 17 MAY 2005 FILE NO/S : CIV 2553 of 2003 BETWEEN : SUSAN THOMPSON Plaintiff
AND
ANGELA ROXBURGH
Defendant
Catchwords: Fatal Accidents Act - Failure of deceased motorist to stop at stop sign - Collision with motorist travelling on main road towards intersection where stop sign located - Whether other motorist negligent in failing to anticipate deceased entering intersection without stopping
Legislation: Fatal Accidents Act, s 6(1)(b)
Result: Plaintiff's claim dismissed
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Representation:
Counsel:
Plaintiff : Mr R W Richardson
Defendant : Mr T Lampropoulos
Solicitors:
Plaintiff : Bradley & Bayly
Defendant : Simon Walters
Case(s) referred to in judgment(s):
James v Williams [2003] SASC 220
March v E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506
Stoeckel v Harpas (1971) 1 SASR 172
Walton v Rowbottom, unreported; SCt of SA; Library No 9362; 17 September 1986
Case(s) also cited:
Anikin v Sierra [2004] HCA 64
McLean v Tedman & Anor (1984) 115 CLR 306
Pennington v Norris (1956) 96 CLR 10
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1 MULLER DCJ: This is an action brought by the plaintiff pursuant to s 6(1)(b) of the Fatal Accidents Act for damages arising out of the death of her husband in a motor vehicle accident at the intersection of Weaber Plain Road and Stock Route Road in the Kununurra area on 19 June 2003. The action was confined to the issue of liability.
2 The intersection in question is approximately 15 kilometres north of Kununurra. Weaber Plain Road is a main road with a bitumen surface running north from Kununurra. Stock Route Road is a minor road that intersects with Weaber Plain Road. The surface of Stock Route Road changes at the intersection. On the eastern side of Weaber Plain Road the surface of Stock Route Road is gravel and on the western side bitumen. There is a stop sign located at the intersection in Stock Route Road where it joins Weaber Plain Road from the east. A stop sign is also located at the intersection where Stock Route Road joins Weaber Plain Road from the west. At a point to the north of Stock Route Road where it joins Weaber Plain Road from the east there is a dirt track leading northwards to an irrigation channel. The distance from the commencement of this dirt track to the centre of the intersection of Stock Route Road and Weaber Plain Road is 35.1 metres. 3 The defendant was aged 27 at the time of the accident. She worked for a business named Pacific Seeds which is located approximately 20 kilometres north of Kununurra. She had been working for Pacific Seeds for approximately two years prior to the accident and travelled regularly on this stretch of road where the accident occurred. She was familiar with the intersection and knew that traffic travelling either east or west in Stock Route Road had to stop at the stop sign located on both sides of the intersection. 4 At 7.00 am on 19 June 2003 the defendant was on her way to work at Pacific Seeds driving a Toyota Hilux dual cab in a northerly direction on Weaber Plain Road at a speed of 100 kilometres per hour. In a statement dated 28 June 2003 that she made to the police she described what happened in the following terms:
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6. Its about 21km to my work and I think I was about 17km out of town when I approached the intersection of Stock Route Road. 7. I have been travelling that road for about 2 years and I know it pretty well. 8. I am sure that Stock Route Road intersects Weaber Plain Road with sealed bitumen on the left and gravel on the right. 9. There is an irrigation channel running parallel to Stock Route Road. I know Weaber Plain Road has right of way and that there are stop signs for vehicles travelling in both directions on Stock Route Road. 10. I can remember while approaching the intersection that I was pretty much the only car on the road. There was no one in front or behind me. 11. Just after I passed Rogers Machinery on my right I noticed a white Ute coming towards Weaber Plain Road on the gravel part of Stock Route Road. I could tell it was an Ord Irrigation Ute. 12. My first reaction was that the car was going to stop but as I kept going I realised that the car was not slowing down. 13. It was too late. I wasn't able to stop and I realised I was going to hit the Ute. 14. It felt as though he was playing a game of chicken the way he just kept coming. I thought my life was over. I thought I was too young to die. 15. I just remember hitting the side of the Ute but I can't remember anything after that." 5 In her evidence at the trial of the action the defendant said she had just passed the driveway leading to Rogers Machinery & Workshop on the eastern side of Weaber Plain Road when she first saw the deceased's vehicle. At this point she was approximately 125.3 metres from the centre of the intersection. When she first saw the deceased's vehicle she estimated it was travelling slowly between 20-30 kilometres per hour in a westerly direction on Stock Route Road approaching the stop sign at the
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intersection. Her impression of the slow speed at which the vehicle was travelling was reinforced by the fact that there was no dust trail. She said she gained the impression the vehicle was going to stop at the stop sign on the eastern side of the intersection. She reached this conclusion because of the slow speed at which the vehicle was travelling, the fact that the driver was approaching a stop sign and her realisation that she had the right of way. Believing the other vehicle would stop she agreed she did not slow down, brake or sound the horn on her vehicle. As she approached the intersection she continued looking at the road ahead but kept the other vehicle in sight as well. When she had almost reached the intersection she realised the driver of the other car was not going to stop. She removed her foot from the accelerator but had no time to brake. The front of her vehicle collided with the left side of the other vehicle. Photographs tendered at the trial show that the impact occurred almost in the centre of the intersection on the side of the road in which the defendant was travelling. The force of the impact caused the deceased's vehicle to leave the roadway and come to a standstill in an irrigation channel. The defendant's car came to a stop on the side of the road. 6 In a statement tendered as part of the agreed documents for trial an employee of Rogers Machinery Services asserted that he saw the deceased's Toyota Tray Back Hilux stationary on what appears to have been the dirt track on the eastern side of Stock Route Road leading to the irrigation channel. The distance from this track to the stop sign at the intersection was only about 27 metres. This evidence suggests the deceased drove from a point near the irrigation channel onto Stock Route Road and had only covered a very short distance of approximately 35 metres before the impact occurred in the middle of the intersection. 7 The intersection itself was clear of vegetation and there were no obstructions to a driver's vision either from the stop sign in Stock Route Road or in Weaber Plain Road. Constable Dean Snashall, a police officer who attended the scene shortly after the accident and subsequently undertook investigations, produced a series of photographs showing the intersection itself and the estimated point of impact in the centre of the intersection. His investigations led him to conclude that the defendant travelling north in Weaber Plain Road would have been able to see the intersection approximately 232 metres away and the deceased would have been able to see the defendant's approaching vehicle from the stop sign at the same distance. 8 Counsel for the plaintiff conceded that the deceased had been negligent. It was accepted he had failed to keep a proper lookout or give
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way at the stop sign in breach of the relevant provisions of the Traffic Code. It was accepted there was simply no excuse for his failure to see the defendant's approaching vehicle. 9 The defendant saw the deceased's vehicle when she was still approximately 125 metres from the centre of the intersection. She agreed she had ample opportunity to observe the manner in which the deceased's car was driven. While she was still some distance from the intersection she claimed there was nothing in the deceased's manner of driving that would have alerted her to the possibility that he would not stop. She was travelling on the main road and had the right of way. She was on the correct side of the road and travelling within the speed limit. She saw the other vehicle at an early stage travelling slowly towards a stop sign which she knew was facing the other driver. These factors led her to believe the other driver was going to stop. It was only at the last moment, when it was too late for her to take any meaningful evasive action, that she realised he was not going to stop at all. 10 Counsel for the plaintiff submitted that the defendant had been negligent. He emphasised that the duty of care owed by a driver to other road users encompasses not only the manner of driving of a careful and attentive driver but also the inattentive or negligent driver whose presence on a road is obviously foreseeable. March v E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506 at 521. It was submitted the defendant ought reasonably to have foreseen the danger of the deceased crossing the intersection in front of her. In support of this submission counsel for the plaintiff focussed on the time which the defendant had to observe the deceased's vehicle and the opportunity she had to drive defensively. It was argued she must have realised the other vehicle was on a collision course. It was approaching the intersection and, unless it stopped, would cross the path of her oncoming car. It was also stressed by counsel for the plaintiff that the defendant never said she saw the other vehicle actually slowing down as it approached the stop sign. The most she said was that it was travelling at a slow speed. Knowing she was on the main road and had the right of way, and relying on the slow speed at which the other vehicle was travelling, it was asserted that she made an erroneous and unreasonable assumption that the other driver would stop. It was said she made no allowance at all for the possible carelessness or inattention of the deceased who was, on her own admission, approaching the same intersection, albeit at a slow speed, and was travelling on a collision course. The least she could have done was to sound her horn to warn the deceased of her approach; but, it was submitted, she did not turn her mind
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to the possible inattentiveness of the other driver and made unreasonable assumptions that she should never have made. 11 In support of this submission counsel relied on the remarks of Wells J in Stoeckel v Harpas (1971) 1 SASR 172 at 172-173. "Three or four decades ago it was, speaking generally, reasonable to expect a driver to deal with the exigencies of motor and pedestrian traffic as they presented themselves from moment to moment, but he was not asked to look very far ahead and to seek out possible trouble. Today, I think that the situation has changed fundamentally. Population has increased; a high proportion of families have at least one car and not infrequently two; accidents are numerous; and death on the roads has become tragically familiar. In these circumstances, I think courts, when performing the role of a jury, are entitled, indeed bound, to require of motorists a measure of what is sometimes called defensive driving, or a look out that not only sees immediate, or immediately developing, danger, but looks well ahead and searches for potential danger. Nowadays, for example, a young child on the footpath is not just a person so many feet away, but is a human being that may suddenly present himself in your path; a green light is not just an authority to spring off the mark without further thought, but is an invitation to look to right and left before moving off in case someone is trying unsuccessfully to beat the lights; a bus is not just a stationary vehicle, but represents cover from which, at any time, a pedestrian may emerge; a car with its turning flicker on may not be going to turn, but may have left his flicker on inadvertently; the car that you are following is to be kept a respectable distance in front of you because, at any moment, the driver may stop or slow down virtually without notice; a crest in the road is not just another part of the road, but is a danger point where a motorist, coming in the opposite direction, may well seek to pass on the rise. All these situations, and countless others besides, call for consideration by the reasonable driver because experience has repeatedly shown that perils on the road, as time goes by, seem to be giving less and less warning of their emergence. Of course, what I have said has its corollaries for other road users, but because of the marked increase in the power, weight and speed of today's vehicles, as compared with those of the immediate post-war period, the implications for the drivers of motor vehicles are, in my view,
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stronger. The courts have, from time to time, spoken of the need to guard against human follies, but, in my opinion, there is a need for courts to emphasise that the guarding referred to includes an ever-present attempt to foresee dangers well ahead of the immediate driving situation." 12 Counsel for the plaintiff submitted this notion of defensive driving has now been broadened to include what has been referred to as protective driving as explained in the following passage from the judgment of Von Doussa J in Walton v Rowbottom, unreported; SCt of SA; Library No 9362; 17 September 1986 referred to by Gray J in the judgment of James v Williams [2003] SASC 220: "The cost to the community of death, bodily injury and property damage on the road, has continued to grow. In an effort to encourage greater care and to deter bad driving penalties for offences under the Road Traffic Act have been progressively increased. The community now requires not only a measure of defensive driving, but a measure of protective driving – to protect drivers, cyclists or pedestrians. Drivers must guard against all reasonably foreseeable dangers. Prominent amongst the foreseeable risks which drivers must have in mind is the one that other road users may be careless. … Many provisions of the Road Traffic Act establish arbitrary standards the breach of which is punishable. They do not establish immutable 'rights' to drive up to the limits prescribed regardless of prevailing circumstances. …" 13 Mr Lampropoulos, who appeared as counsel for the defendant, submitted there was no fault on the part of the defendant that could possibly constitute a breach of her duty of care towards other road users. Contrary to the submission made by counsel for the plaintiff, Mr Lampropoulos submitted that it was clear from the plaintiff's evidence that she had observed the deceased's manner of driving and made a judgment that he would stop at the intersection. In support of the reasonableness of the plaintiff's judgment counsel relied upon the following passage in Fleming's Law of Torts, 9th ed at p 134 where the learned author, dealing with the question of anticipation of negligent conduct, said: "Ordinarily, we may assume that others will take reasonable care to look out for themselves. Traffic would be unduly slowed down if road users were not entitled to repose some
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confidence in the reasonable conduct of others, provided there is nothing to indicate that such trust would be misplaced. A motorist need not ordinarily adjust his speed against pedestrians unexpectedly dashing into his path or other drivers flouting the rules of the road. Not that he may drive at any speed he chooses so far as roads coming in on his left are concerned, or with complete indifference to the possibility of a car suddenly emerging from a side road as the result of accident, miscalculation, carelessness or for any other reason. The mere fact, however, that he sees another car approaching from a side street on his left does not make it imperative for him to stop, for he may assume that the other will advance only far enough to survey the traffic on his right. Again, it is not ordinarily unreasonable to suppose that other motorists are proceeding at proper speeds and, if one is in this way misled into underestimating the speed of an unreasonably fast car approaching an intersection, only the latter will be adjudged guilty of negligence. The difficulty often lies in prognosticating precisely when these assumptions become untenable. Liberty to act on an expectation of non-negligence in others ceases as soon as there are indications that they are, or are likely to be, acting imprudently. The ever-present possibility of danger may loom, and the greater the risk the more tentative must be the assumption that others will conduct themselves with reasonable care. Thus a train driver need not slow down for a level crossing on the assumption that motorists will stay clear; but he must keep continuing watch for approaching traffic in order to slow down, if not to stop, as soon as it becomes apparent that a car is not giving way." 14 There was certainly nothing imprudent or improper in the manner in which the defendant drove her motor vehicle. She was travelling on the main road, within the speed limit and in her correct traffic lane; she saw the deceased's car from a distance and knew it was approaching a stop sign. She reached the conclusion it was going to stop. Having had the opportunity of hearing her testimony and observing her give evidence I am satisfied that it was only at the last moment when her vehicle was almost in the intersection that she realised the deceased was not going to stop after all. By then it was too late to avoid the inevitable collision.
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15 If the defendant was otherwise driving in a perfectly reasonable manner approaching the intersection, as I am satisfied she was, the question then arises as to whether there was anything in the deceased's manner of driving that might have alerted her to the possibility that he did not intend stopping at the stop sign. The obligation to anticipate negligence in others only arises if there are indications of actual or potential imprudent behaviour on the part of another or others. Fleming p 135 (supra). I am unable to see anything in the deceased's manner of driving that might have alerted the defendant to this possibility. I agree with the observation made by Mr Lampropoulos that, if the deceased had been approaching the intersection at speed, or driving erratically, the defendant might ordinarily be expected to have foreseen the possibility of his failing to stop. But there was absolutely nothing in the deceased's manner of driving that might have alerted her to this possibility. On the contrary all the objective signs pointed towards his intending to stop. The slow speed at which he was travelling; the fact that he was on a minor gravel road with a stop sign facing him; the fact that he was approaching a main bitumen road where the speed limit was 110 kilometres per hour; and the clear evidence that he would have been able to see the defendant's oncoming vehicle at a considerable distance all pointed overwhelmingly to the fact that he was going to stop.
16 I am unable to find any fault on the part of the defendant. In the circumstances I do not believe it was unreasonable for her not to have foreseen the likelihood of the deceased travelling through the intersection without stopping. I am positive she saw his vehicle at an early stage, kept it under observation, noted its slow speed and, realising it was on a minor road and approaching a stop sign, made a reasonable judgment that the driver intended to pull up and give her right of way as he was required to do. I am certainly not satisfied that she was negligent in one or more of the particulars relied upon or at all. 17 I would dismiss the plaintiff's claim against the defendant.
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