Turpin v Atkins - [2000] WADC 75

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TURPIN -v- ATKINS [2000] WADC 75

CORAM: VIOL DCJ

HEARD: 22 AND 23 FEBRUARY 2000

DELIVERED : 23 MARCH 2000

FILE NO/S: CIV 1794 of 1999

BETWEEN: MARGARET CHRISTINE TURPIN
Plaintiff
AND
ARTHUR JAMES ATKINS
Defendant

Catchwords:

Motor vehicle - Negligence - Whether defendant's vehicle on wrong side of road - Whether plaintiff contributorily negligent - Turns on own facts.

Legislation:

Nil

Result:

Defendant negligent - plaintiff contributorily negligent to the extent of 20 per cent.

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr G P Bourhill

Solicitors:

Plaintiff: D'Angelo & Partners
Defendant: Phillips Fox

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

Nil

Case(s) also cited:

Nil

VIOL DCJ: The plaintiff, who is 49 years of age, and was at all material times employed by the W A Museum and later for the Environmental Protection Department, was injured in a motor vehicle accident ("the accident") on 15 November 1994 on the South West Highway between Byford and Whitby. On that occasion the plaintiff was driving in a northerly direction and, she says, was forced to take evasive action as a result of the defendant's vehicle being on her side of the road and driving in a southerly direction. As a result of such evasive action the plaintiff's vehicle struck another vehicle proceeding south, with tragic results; the driver of that vehicle and a baby passenger were killed and a number of other people were injured, including the plaintiff.
The plaintiff has claimed damages from the defendant alleging that the accident was due to his negligence in the following respects:
The defendant
"3.1.1drove at a speed which was excessive in the circumstances;
3.1.2veered onto the wrong side of the road causing the Plaintiff to take evasive action;
3.1.3failed to ensure when overtaking vehicles travelling in a southerly direction that he did so in a safe manner;
3.1.4failed to ensure that at all times he did not have his vehicle over the broken white lines dividing the north and south carriageways of the South West Highway;
3.1.5failed to take any evasive action to ensure that his vehicle was on the southern carriageway of the South West Highway;
3.1.6failed to keep his motor vehicle under proper control;
3.1.7caused the motor vehicle to travel onto the incorrect side of the road."
The defendant does not admit such negligence and says that if the plaintiff suffered any loss or damage such loss or damage was caused by the negligence of the plaintiff, or if the defendant was negligent, it was contributed to by such negligence on the part of the plaintiff. It is alleged that the plaintiff was negligent in that she failed to keep any or any proper lookout (para 5.1 of Defence); failed to take any or any adequate precautions when approaching the proceeding motor vehicle (para 5.2); drove at a speed which was excessive in the circumstances (para 5.3); failed to stop, slow down, swerve or otherwise control or manage the vehicle so as to avoid a collision (5.4).
The hearing before me involved the question of liability only.
Before proceeding to deal with the evidence of the various witnesses, it is relevant to note that the accident occurred on a relatively long and straight stretch of the South West Highway between Byford and Whitby. The road is a bitumen road with a broken white line in the centre and complete white lines on the edges of the road. There is a gravel verge on each side of the road with that on the east side being wider than that on the west side. The evidence of the witnesses and the photographs tendered show that there is a good view for drivers in either direction up to the accident site, which was approximately 300 metres to the south of an intersection of the Highway and Kiln Road, which is on the eastern side of the Highway going south. At the place of the accident the speed limit was 110 km/h although from the various town sites there were variations of the speed limit up to that point. There are no trees on either side of the Highway which would have affected the view of drivers on the Highway and the road is, as has already been noted, relatively straight and part of a very long sweeping bend.
As far as the plaintiff was concerned, driving in a northerly direction from approximately one kilometre south of Norman Road which intersects the South West Highway on the left side after leaving Whitby, she was faced with a virtually straight stretch of road for three or four hundred metres. There is no suggestion that the plaintiff would have been in any way affected by the sun and she had not had any alcohol.
As far as the defendant's view was concerned, having left Byford and continuing for several kilometres, for several hundred metres north of Kiln Road which intersects the South West Highway from the east as Kardup, the defendant would have had a similar good view south down the Highway. Once again there is no suggestion that either the sun or alcohol played any part in the accident from his point of view. The plan, Exhibit A, and the photographs, Exhibits C and D, confirm the good view of both the plaintiff and defendant on the road as they approached the accident scene.
As for vehicles on Kiln Road approaching the South West Highway, the evidence of Mr Nairn and the photographs confirm that to the north of Kiln Road on the eastern side there was a grove of trees planted which would have necessitated drivers moving onto the South West Highway from Kiln Road to have difficulty seeing traffic to the right. In fact, there are several trees planted near the road verge which would require extra care on the part of a driver entering from Kiln Road - the relevance of this will be seen in relation to Mr Nairn's evidence in due course.

The Evidence

The plaintiff was an education officer at the WA Museum at the time of the accident. She had organised a conference in Fremantle after which a number of people from the conference went to Margaret River. She was travelling back to Perth as driver with one Lesley Walker in the front seat and Ian Watts in the rear seat. The plaintiff had met Ms Walker twice before but was not a friend. The same applied to Mr Watts. They left Margaret River fairly early in the morning, went to Wannerup House (out of Busselton) and after looking over that place, stopped at Whitby Falls Coach House for lunch. They had lunch and a cup of tea there and then left for Perth.
The plaintiff had lived in Collie for several years and was an experienced country driver, in fact having driven on the South West Highway a number of times. The plaintiff was asked how the accident occurred. She said:
"We got back into the car and we were heading north. It was quite a hot day and Ian was complaining about the heat coming through the window. He was in the left passenger side of the vehicle and he decided to move across to the middle and he undid his seat belt and he moved across to the middle seat position. Ian always falls asleep whenever he's in a car and we were talking about the fact that he always falls asleep and he was going to shut his eyes and fall asleep. Lesley and I were then having a discussion about how much time and distance we had to get to the airport and there was about 2 and a half hours before her flight and maybe 40 minutes of distance to go, so we were remarking on how there was plenty of time for us to get to the airport. I was driving slightly under the speed limit and we came around the corner before the accident occurred and in my recollection there was a line of cars coming before me, coming towards me, and the road ahead on my side was clear. Then the white four-wheel drive pulled out to overtake and I assumed that he was going to pull back into his side of the road. I believed that I first took my foot off the accelerator to slow down and then, when I realised that he wasn't going to get out of my way, I started to brake and then it just happened so quickly. He was right in front of me and we were going to hit and I just pulled the wheel of the car to the left to get out of his way and I still don't know how we missed him. We were so close to him I don't know how we missed hitting him. He was right in front of me on my side of the road and just very close and not trying to get out of my way at all. I'm aware of a white car behind my shoulder in the line of cars and I pulled left to get out of the way of this white four-wheel drive and I lost control. From when I realised I had to get out of his way - well, I thought we were going to hit and I still don't know how we didn't hit. From when I realised that a collision was inevitable to when I hit the other car was instantaneous. It took no time at all. At the time I didn't know how many cars were involved and I still don't know how I missed hitting the driver of the four-wheel drive, because he was right in front of me on my side of the road and so close."
The plaintiff said that when she realised she had to get out of the way of the defendant's vehicle she braked and swerved violently to the left. At that point the car went out of control. She said that when she realised there was a collision imminent, her vehicle was in the middle of her lane and the defendant's vehicle was directly in front of her - fully in her lane. She had had no alcohol to drink that day or the night before. She said she was not tired.
The plaintiff appeared to have a good memory of the accident and was very forceful in her statements as to how the accident occurred.
In cross-examination, as to Mr Watts going to sleep in the back of the car, the plaintiff said, contrary to her evidence-in-chief, that Lesley discussed this with Mr Watts, not she and Lesley. That was, she said, after she glanced up in the rear vision mirror and saw him with his eyes closed. She said that this occurred about half a kilometre or so away from the accident scene. She said that she came around the bend and was no longer looking in the rear vision mirror. It was after this she said, that the defendant pulled out. She agreed that in a Statement she gave to the police of 20 January 1995 that she did not mention that she saw the defendant's vehicle pull out from behind another vehicle. She did not appear to have a recollection of what vehicle it was the defendant was overtaking. She said that her focus was on the defendant rather than the vehicle that was being overtaken. The defendant's vehicle was in her lane for 100 to 200 metres and that she braked when it was about six car lengths from her. There was a white vehicle which passed her from the north and she said that obscured her view of what vehicles were behind it, which was one of the reasons why she was unable to see what vehicle it was that the defendant passed. The plaintiff said that when she first saw the defendant's vehicle 100 to 200 metres away from her on the wrong side of the road the first thing she did was to take her foot off the accelerator, assuming that he would get out of her way and pull back in. She then began to brake assuming still that he was going to pull back in, and when she realised that he wasn't, it was then that she swerved. Her car, she said, was not further over to the right than she said in evidence. She was very firm as to this aspect. She was cross-examined on the basis that the defendant's vehicle at no stage was in her lane and was positive to the point of being upset, accusing the defendant of lying. She said that the defendant's vehicle was so close to her before the accident that she did not know how she had missed him, in fact at the time of the accident she thought she had hit him. She was positive that she swerved to the left for a short distance very violently after which the vehicle lost control.
The plaintiff appeared as a witness of honesty and was obviously very upset by the circumstances of the accident. She was very firm and forceful in her evidence, in particular that the four-wheel drive was on her side of the road. She was very firm and positive to the point of becoming upset when giving answers to any questions which suggested that the accident was in any way caused by negligence on her part.
Ms Lesley Anne Walker is an editorial manager and resides in England. At the time of the accident she was living in New South Wales and was the Senior Education Officer for the Historic Houses Trust of New South Wales. She attended the conference and then went to Margaret River with the plaintiff, Mr Watts and other museum colleagues. Ms Walker was not a personal friend of the plaintiff. She confirmed that they stopped at the Wannerup House for about an hour and a half and then went to Capel where they had obtained some petrol and had an ice cream. They then stopped at the Old Whitby Coach House for lunch. Upon proceeding north and after about 10 minutes driving, Mr Watts said that he was going to move into the middle of the back seat so he could have a sleep. Up to that time the three of them were talking and joking about the fact that Mr Watts always slept in cars. Mrs Walker was talking to him about that just before the impact and also to the plaintiff about the time left to get to the airport. She was half turned in the front seat talking to Mr Watts (contrary to what the plaintiff said - ie, that Mr Watts was asleep by that stage) and the three of them were all laughing about Ian going to sleep etc. As she was turned to the back talking (and obviously the three of them were laughing and talking) she heard the plaintiff gasp - she turned around and the plaintiff was wrenching the wheel to the left - the defendant's vehicle was in front of them coming at them at high speed. She said they were well within their lane but the defendant's vehicle was about two-thirds into their lane with its wheels straddling the broken lines in the middle of the road. The plaintiff's vehicle moved to the left, and then spun, after which there was an impact. Before she gave her statement to the police in New South Wales, she did not speak to the plaintiff.
In cross-examination Ms Walker said that even though she had been looking backwards just before the accident it was not possible that their vehicle was out of its own lane. She said that the defendant's vehicle was about three car lengths in front of them when she first saw it. She was very firm in her evidence that the defendant's vehicle was on its incorrect side of the road. She had a "photographic image" of the accident in her head. She was referred to a Statement she had given to the New South Wales police in which she said that the plaintiff's vehicle had hit the gravel after it swerved to the left. She explained this on the basis that at the time she had hit the gravel herself after the accident. I was satisfied with her explanation as to that. She denied the suggestion (as the plaintiff had made) that Mr Watts was already asleep before the accident. She said in fact they were still laughing about it and talking at the time of the accident.
Ms Walker was very firm in her evidence and a very concise witness. She appeared to be making every attempt to be honest in the giving of her evidence and in my view she was a reliable witness.
Mr Robert John Lyne Davey is a motor vehicle accident consultant with qualifications and considerable experience in the investigation of traffic accidents. His CV (Exhibit E) confirms this. Having seen the photographs and the police plans, Exhibit B, he concluded that the plaintiff's vehicle caused marks which were "critical speed, yaw marks". These marks were wheels of a motor vehicle that were not locked, were not skid marks, but were still rotating as the vehicle was travelling on a circular path. He prepared a reconstruction of the movement of the plaintiff's vehicle showing the yaw marks (Exhibit F). On his analysis he said the driver had commenced the manoeuvre from the centre of the north bound carriageway, then corrected that movement which then put the vehicle into a clockwise rotation about its centre of the mass. He prepared certain mathematical calculations as to vehicle speeds etc. (Exhibit G). In Court he made certain calculations. He confirmed that a vehicle travelling at 100 km/h would take 7.2 seconds to travel 200 metres. Thus, two vehicles approaching each other at a speed of 100 km/h would take 3.6 seconds to travel 200 metres. He said that the speed limit of 100 km/h began some 1.3 kilometres north of the Kiln Road intersection.
Sergeant Trevor Thorpe has for a long time been attached to the Major Accident Enquiry Section in Perth. He attended at the scene of the accident and took the photographs, Exhibit C. It was his view from the tyre marks he observed, that the Commodore being driven by the plaintiff was on the correct side of the road but more towards the centre of the carriageway before the marks from her vehicle were left on the road.
The defendant gave his occupation as "house duties". He had some recollection of the accident but was very vague as to the circumstances of it. I was not given any explanation as to the reason for the defendant's vagueness and inability to remember more than he did of the accident. He said he drove through Byford; he "sort of" remembered but was not 100 per cent sure about passing another vehicle or whether there was a blue car, (ie, Mr Nairn's car) on his left on the verge. He was overtaking that vehicle without going over the line, and he noted a white Commodore coming towards him on the other side of the road - it went behind him and hit something and had an accident. He had given a Statement to the police and he was allowed to refresh his memory from that Statement. He was unsure as to the colour of the vehicle he had passed. Having read the Statement he made on 19 November 1994, ie, four days after the accident, he had very little further memory of it. He thought the blue vehicle was on the gravel verge and when he came closer it moved over further to the gravel. He moved over slightly to his right passing the blue car but he said, "There was no need to go over the white line because the blue car was nowhere on my road". He was not sure what the blue car was going to do.
In cross-examination he said he "sort of" remembered passing a small green vehicle (the vehicle with which the plaintiff collided) and agreed that he went over onto the incorrect side of the roadway when he passed it. He also said that when the plaintiff's vehicle passed him he realised it was veering to the right and would have hit something that was immediately behind him. He confirmed that he had given evidence previously to the effect that the plaintiff's vehicle went so close behind him that had he been towing something it would have hit that. In his evidence he agreed that when the plaintiff's vehicle veered to the right it would have hit anything (ie, a car) that was immediately behind him. He was unable to remember that he had just completed passing the green vehicle before the accident occurred. He was unable to remember where it was on the Highway that he passed the green car, although he did remember going on to the wrong side of the road to do that. He did not think he was going beyond the speed limit.
In re-examination he remembered passing the green car and then seeing the blue car and passing that. He had no recollection of either the distance or the time between those two events.
The defendant was apparently attempting to give honest evidence as to the accident but his evidence as to some important matters was of little value because of his inability to remember much about it. In some important respects his evidence was in fact favourable to the plaintiff, particularly his apparently good memory of going to the wrong side of the road to pass the green car and the closeness of this car to his at the time of impact.

The defendant's wife, Mrs Elda Margaret Atkins gave evidence - she is a casual engineering technical officer for the Town of Claremont.
She remembered that after passing through Byford a vehicle was going a bit slower - the green car - and her husband passed that. She looked into the vehicle and saw a woman driver and a child sitting in the front seat. They went further along and another (blue) car pulled out from the side of the road and was travelling on the gravel. About the same time that they passed that car a white car came in the other direction - she only noticed that car about the same time that they passed the blue car which was on the road verge. The white car "did a funny little jiggly movement" and an accident occurred. She recalled just passing the green car as it was just out of Byford when the speed limit was about 90 or so. She thought they passed the blue car just as it pulled out of Kiln Road. She could not recall the speed of their vehicle although she said the defendant slowed a bit because they were unsure of what the blue car was going to do. She said they stayed within the lane as it passed the blue car and only deflected slightly to the right. She agreed in cross-examination that at the time the defendant passed the green car he moved completely onto the wrong side of the road, "a full overtaking manoeuvre". At that stage she was looking out her passenger side window. The defendant accelerated as he passed the green car and continued to do so. She said it was not possible when the defendant passed the blue car that he went across the white line. She was able to observe that in the blue car there was an older man driving with a hat on. Notwithstanding this, she felt sure her husband was still going straight ahead in the normal (and correct) lane. She noticed the white Commodore making a sudden jerking movement to its left and then she lost sight of it after that. At the time it made that movement it was on its correct side of the road. She denied that her husband was in the course of overtaking the green car just before the accident. She said that she was firm in her conviction that they passed the green car towards Byford and that there were no cars coming when her husband made that move. Although she was looking at the scenery as they drove along, she was noticing the traffic as well as that.
Mrs Atkins seemed to be an honest witness but was somewhat vague about some of the circumstances of the accident. It appeared that she was certainly looking to the left at vehicles as they passed them rather than looking at all times in the direction in which they were going. It may well have been that the defendant's vehicle could have made some manoeuvres of which she was not aware as the vehicle was moving in its southerly direction.
Mr Peter William Nairn is a farmer who lives in Kiln Road Cardup. He is approximately a kilometre from the intersection of Kiln Road and the South West Highway. Just before the accident he saw some smoke rising in a south-westerly direction from his property, to the left-hand side. He took his vehicle and drove to the end of Kiln Road intending to turn left. He said there were trees which had been planted on the right-hand side, ie, in a northerly direction, which meant that his vision to the right was affected. Having arrived at the intersection he did not stop and look right and left, but did what he normally did, namely, drive left onto the road onto the extreme left-hand side and move slowly along the verge looking in his rear vision mirror and right mirror to see whether it was safe to move out onto the Highway. He then proceeded to move out. He was also keeping an eye on the smoke which was on the opposite side of the Highway and to his right. He was rather vague as to his memory of what actually occurred at that point. It is clear that he was mostly concentrating on the vehicles coming from behind him and also occasionally looking towards the area of the smoke.
He then noticed the plaintiff's vehicle travelling diagonally across the road from the south at an angle. Immediately before that he did not notice anything else about any of the cars that passed him. He then saw the collision between the plaintiff's vehicle and the green car. He was close enough to the green car to have to swerve to avoid the collision. He then realised he had just seen an accident. That suggests that either his memory of the incident is not particularly good or that what he saw was the last second or two of the movement of the plaintiff's car and then the collision. He then saw the defendant's vehicle backing up to the scene of the accident. He concluded that that vehicle could not have been very far in front of the green car. His memory of his action of pulling out onto the road was very poor and he appeared to be attempting to reconstruct what had occurred. He appeared not to have seen the commencement of the movement of the plaintiff's car across the road. He said that he thought the plaintiff's car was "probably" at least 200 metres from Kiln Road when he first saw it. Once again his evidence suggested that he did not see the commencement of the plaintiff's car moving across the road. It was his evidence that he did not see anything about the movement of vehicles which passed him and then seeing the white car which was out of the ordinary.
In cross-examination Mr Nairn agreed that he was not aware of the green car until the point of impact and that he was not in fact aware of it even on the roadway. He was then cross-examined as to the evidence he had given at the Coronial Enquiry which was held into the deaths resulting from the accident. The transcript of his evidence was tendered at Exhibit K. He confirmed that he had told the Coroner that "I then saw this vehicle, which was white in colour, collide with a green coloured car. This was the first time I had actually seen the green coloured car". He agreed that he was proceeding at 20 km/h and the conclusion which is open to be made is that the accident occurred a long way ahead of him - Kiln Road is in fact approximately 300 metres from the scene of the accident. The transcript also reveals that at the time of the inquest Mr Nairn was not sure whether he had entered the Highway or stopped at the intersection. It appears from the cross-examination that Mr Nairn was not sure how far he was from the point of impact when the accident occurred. He was unable to say which of the green vehicle and the defendant's vehicle passed him first as he was at or around the Kiln Road intersection. He agreed that he had told the Coroner that he was some 160 metres from the accident scene when the accident occurred.
Mr Nairn was an honest witness but his memory of the incident was not particularly good. It is clear that he could not recall either the green car or the defendant's car passing him as he waited to move out on to the Highway. It is also a reasonable conclusion that the accident took place at least 160 metres in front of where his vehicle was on the Highway. It is also a reasonable inference to draw from his evidence that he did not see the commencement of the plaintiff's move to the right and was apparently not in a position to observe what caused the plaintiff's vehicle to move to the right.
Mr Nairn's evidence was of little value to the defendant and in fact was of some assistance to the plaintiff's case.

Findings on the Evidence

I confirm that in relation to para 5.2 of the Defence alleging that the plaintiff "failed to take any or any adequate precautions when approaching a proceeding motor vehicle" counsel for the defendant confirmed that what was intended by this was an allegation that if the plaintiff was confronted with the defendant's vehicle coming in on the plaintiff's side of the road in the opposite direction she failed to take adequate precautions as she drove towards that vehicle.
This is not a case in which it could be said (or found) that the witnesses were not honest people, or that they were attempting to mislead me. On the other hand, the very tragic results of the accident and the traumatic effect it has had on the witnesses has affected their reliability.
There is a clear and important dispute between the plaintiff and the defendant as to whether the defendant was on the plaintiff's side of the road near the area of the impact. The plaintiff was positive that the defendant was so positioned and the defendant was of the contrary view.
Notwithstanding this divergence, it is not difficult to conclude this issue in favour of the plaintiff. I do so, inter alia, for the following reasons:
1.      That the plaintiff took some sudden, and apparently evasive, action is not in dispute - the question which arises is, if no emergency confronted the plaintiff, an experienced country driver, not affected by alcohol, why would she have acted as she did? The suggestion was made by the defendant's counsel that the plaintiff fell asleep. The evidence of Ms Walker, however, is that up to the time of the impact the plaintiff was talking to her and Mr Watts about Mr Watts' habit of going to sleep in vehicles, and the journey itself. There is insufficient upon which I could conclude or infer that the plaintiff was asleep. That being so, there must have been something which occurred which caused the plaintiff to take sudden and dramatic evasive action.
2.      The conclusion to be drawn from the defendant's evidence, ie, that the plaintiff's vehicle passed so close behind his that had he been towing a trailer, the plaintiff would have struck it. Accepting this to be correct (as I do) the defendant could not have passed the green car as far back towards Byford as he or his wife suggested in evidence. Nor would the plaintiff have struck the green car - the impact took place in a very brief space of time after the plaintiff's action in wrenching her vehicle to the left and going out of control - in that time the green car would not have travelled very far - certainly nowhere near the distance inherent in the explanation given by the defendant and his wife.
3.      The admission by the defendant that he did go to the wrong side of the road as he passed the green car. Similarly, the defendant agreed that he had moved to the right of Mr Nairn's car because he was unsure what Mr Nairn intended to do as he was entering Kiln Road. In view of the speed of the defendant's car, although I cannot firmly find this, it is well within the bounds of possibility that the defendant passed Mr Nairn's car moving close to the centre line and then continued, deciding also to pass the green car, thus moving across the centre line to the extent that two-thirds, if not the whole, of his vehicle was on the plaintiff's side of the road.
4.      The evidence of Ms Walker was I find of considerable value.   I accept that she heard the plaintiff gasp and immediately turned to the front to see the defendant's car about three lengths in front of her and approximately two-thirds on their side of the road. The graphic description of the pre-impact scene corroborates the evidence of the plaintiff as to this time. Also, the plaintiff's evidence as to the evasive action she took is corroborated by Ms Walker.
5.      The marks on the road, evidence from Exhibit B, confirm that the plaintiff's vehicle, relatively speaking, moved across the road in a very short space of time and distance before colliding with the green car. Assuming that the defendant's car was as close as he himself suggested, the three vehicles must have been in very close proximity to each other just before the accident.
6.      Mr Nairn's evidence was of little value to the defendant because quite clearly he did not see what occurred just before the impact. In fact, he did not see the green car before the impact.   Although this was obviously the result of Mr Nairn concentrating on other matters, it could also be the case that the incident occurred in a very short space of time with the decision of the defendant to move out and pass the green car being made far more quickly than was suggested by him.
It is clear, therefore, that the defendant on the evidence, did in fact pass the green car on the wrong side of the road.
I am satisfied on the evidence that at all material times the plaintiff's vehicle was on its correct side of the road and that until just before she swerved left the plaintiff was keeping a proper lookout towards the front of the car and down the road. It appears that the plaintiff saw the defendant's vehicle passing the green car and assumed that it would return to its own and correct side of the road in a normal course of driving.
It is a fair inference to draw from the evidence that the defendant misjudged the total closing speed of his and the plaintiff's vehicles and that he realised just before the impact that he had left himself insufficient room to move to the left in a normal way. In this regard the evidence of Mr Davey is relevant as to the distance travelled by two cars each travelling at 100 km/h towards each other over a period of approximately three seconds, ie, 200 metres.
I am satisfied that the accident was caused by the negligence of the defendant. As to the particulars alleged of such negligence, I am not satisfied that the defendant drove at a speed which was excessive in the circumstances - it appears that each of the plaintiff and defendant were driving either at the speed limit or within the speed limit. It is clear, however, that the defendant veered onto the wrong side of the road and caused the plaintiff to take evasive action (paragraph 3.1.2). Also, he failed to ensure when he was overtaking the green car that he did so in a safe manner (paragraph 3.1.3). Allegation 3.1.4 is to the effect that the defendant failed to ensure that at all times he did not have his vehicle over the broken white lines dividing the north and southern carriageways of the South West Highway. Obviously there are occasions when this is permissible and had the defendant carried out his manoeuvre safely he could have had his vehicle over the broken line and still have avoided a collision. It is difficult to understand allegation 3.1.5 "failed to take any evasive action to ensure that his vehicle was on the southern carriageway of the South West Highway". Assuming this to mean that the defendant, when he realised the predicament, failed to take any evasive action then this allegation is not made out because quite clearly he avoided the plaintiff's vehicle.
The defendant did, in my view, fail to keep his motor vehicle under proper control (paragraph 3.1.6) in the sense that he was driving on the wrong side of the road for too long and failed to appreciate the decreasing amount of time he had to move back into the left-hand lane. He did cause his motor vehicle to travel onto the incorrect side of the road (paragraph 3.1.7) but this in itself is not necessarily negligent. In the circumstances of this case, however, as I have already found, the defendant moved to the incorrect side of the road and remained there for too long, and this in itself was negligent driving on his part.
As has already been found, this accident was primarily caused by the defendant failing to pass another vehicle in a safe manner. He placed his vehicle in such a position that the plaintiff was faced with an emergency.
In relation to the plaintiff, as to the negligence or contributory negligence alleged against her I have already found that the plaintiff was not negligent per se.
As to any contributory negligence on the part of the plaintiff, however, it is relevant to consider what was occurring in the plaintiff's vehicle in the seconds up to the point of impact.
It is clear that there was some discussion proceeding in the vehicle between the plaintiff, Mr Watts and Ms Walker as to Mr Watts' propensity to sleep in vehicles and the fact that he was moving to the middle of the vehicle so that he could have a sleep. Also, there was some discussion about the journey itself and the time being taken and left for the journey to the airport from which Ms Walker was flying to the Eastern States. It is the case that at some point the plaintiff was looking in the rear vision mirror to check whether Mr Watts was asleep - this is consistent with the discussion of which there is evidence. Ms Walker was partly turned to speak to Mr Watts just before the accident and heard the plaintiff gasp, obviously the plaintiff realising that the defendant's vehicle was on the wrong side of the road and looming up towards her vehicle.
It is a proper inference to draw in my view that in the second or so before that happened, the plaintiff had either looked in the rear vision mirror or was looking to the left talking to Ms Walker. The fact that the plaintiff had to take last second evasive action suggests that for a moment her attention was not on the road ahead of her. It should be remembered for each second the vehicles travelled towards each other they moved 56 metres closer to each other.
I am satisfied that in the second or so before the impact the plaintiff was failing to keep a proper lookout as alleged in paragraph 5.1. She was not in my view guilty of the negligence alleged in paras 5.2 and 5.3 of the Defence. Although the plaintiff did not fail to stop, slow down, swerve or otherwise control or manage the vehicle so as to avoid a collision (as is alleged in paragraph 5.4), it is the case in my view that had the plaintiff been keeping a lookout she could possibly have taken some more effective evasive action to avoid the collision. It is in this sense that I consider the plaintiff was contributorily negligent - her momentary inattention to a limited degree ultimately caused the accident.
In the circumstances, such negligence should be limited to an amount of 20 per cent, with the defendant being therefore found to be 80 per cent responsible for the accident.