Tweed v Shepherd
[2006] WADC 199
•8 DECEMBER 2006
TWEED -v- SHEPHERD [2006] WADC 199
| Link to Appeal : | [2008] WASCA 59 |
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WADC 199 | |
| Case No: | CIV:533/2005 | 11 SEPTEMBER 2006 | |
| Coram: | COMMISSIONER LEY | 7/12/06 | |
| PERTH | |||
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's claim dismissed | ||
| PDF Version |
| Parties: | ROGER JAMES TWEED MICHAEL KEVIN SHEPHERD |
Catchwords: | Torts Negligence Traffic accident at T-intersection Failure to keep proper lookout Failure to give way Contributory negligence Quantum agreed Turns on own facts |
Legislation: | Road Traffic Code 2000 |
Case References: | Welch v Surtees, unreported; SCt FCt of WA; Library No 980626; 29 October 1998 Byrnes v Snare (1986-1987) 4 MVR 97 Pennington v Norris (1956) 96 CLR 10 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 Sibley v Kais (1967) 118 CLR 424 South Australian Ambulance Transport Inc v Wahlheim (1948) 77 CLR 215 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
MICHAEL KEVIN SHEPHERD
Defendant
Catchwords:
Torts - Negligence - Traffic accident at T-intersection - Failure to keep proper lookout - Failure to give way - Contributory negligence - Quantum agreed - Turns on own facts
Legislation:
Road Traffic Code 2000
Result:
Plaintiff's claim dismissed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr K J Bradford
Defendant : Mr J P T Olivier
Solicitors:
Plaintiff : Bradford & Co
Defendant : Talbot & Olivier
Case(s) referred to in judgment(s):
Welch v Surtees, unreported; SCt FCt of WA; Library No 980626; 29 October 1998
Case(s) also cited:
Byrnes v Snare (1986-1987) 4 MVR 97
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Sibley v Kais (1967) 118 CLR 424
South Australian Ambulance Transport Inc v Wahlheim (1948) 77 CLR 215
(Page 3)
1 COMMISSIONER LEY: About 8 am on Tuesday 18 June 2002, the plaintiff was riding a 12 speed Carrera racing bicycle in Wilson Road, Bunbury, when he came into collision with a Holden tray top utility which was being driven by the defendant and was towing a tandem trailer ("the accident"). As a result of the accident, the plaintiff suffered severe injuries, particularly to his left shoulder and arm. He instituted these proceedings against the defendant to recover damages for his injuries. Prior to the trial, the parties agreed quantum at $700,000 without prejudice to the issue of liability. Accordingly, the only issue which I was asked to decide at trial was liability.
2 At the time of the accident, the plaintiff was riding his bicycle from his home in Blair Street, Bunbury, to his place of employment as a printer at South West Printing and Publishing in Proffitt Street. In the course of his journey, the plaintiff rode his bicycle south in Robertson Drive, turned left into an access road ("the access road") between Robertson Drive and Wilson Road and then turned right onto Wilson Road, where the accident occurred. The plaintiff said in evidence that, at the time of the accident, he had been riding a bicycle to work by that same route for four years.
3 Robertson Drive was at that time a dual carriageway which carried traffic travelling both north and south. In order to turn left or east into the access road, drivers (and bicycle riders) travelling south on Robertson Drive moved first into a slip lane nearest the left hand kerb. They then turned left into the access road and travelled east on the access road before turning onto Wilson Road. Wilson Road was a flat, sealed road which had no markings. It was however wide enough for traffic to proceed both north and south. It ran parallel to Robertson Drive.
4 The access road, as measured by the plaintiff about six months prior to the trial, was only 27 metres in length. At the time of the accident, it was a flat, sealed road with a kerb on each side and a median strip which divided the lane of traffic travelling east from the lane of traffic travelling west. For east bound traffic entering Wilson Road from the access road, there was a broken white line separating the lane for east bound traffic in the access road from Wilson Road. In reg 3 of the Road Traffic Code 2000 ("the Code") such a line is called a "give way line" ("the give way line"). However, there were no signs at the Wilson Road end of the access road which governed east bound traffic entering Wilson Road. Otherwise, the intersection of the access road and Wilson Road ("the intersection") was broad and flat.
(Page 4)
5 At the western end of the access road there was an unbroken white line separating the lane for west bound traffic in the access road from Robertson Drive, and a stop sign ("the stop sign") controlling traffic entering Robertson Drive. In reg 3 of the Code, an unbroken white line of the type which separated the western end of the access road from Robertson Drive is called a "stop line" ("the stop line").
Plaintiff's evidence
6 The plaintiff said that, on the day of the accident, he was riding his bicycle south on Robertson Drive. In preparation for turning left into the access road, he moved into the slip lane nearest the left hand kerb. He said that, at the time, it was raining but not heavily. He said that his visibility was fairly clear. He said that his bicycle had a luminous green flashing light on its front and a red flashing light on its rear wheel. He said he was wearing a black spray jacket, black shorts and a red and black cycling helmet.
7 The plaintiff said that as he was travelling south on Robertson Drive, his speed was approximately 10-15 kilometres per hour. He said he slowed to make the left hand turn into the access road and then rode the short distance east on the access road in order to prepare to turn right onto Wilson Road.
8 The plaintiff said that when he was riding east in the access road and was approximately half way between the Robertson Drive end and the Wilson Road end, he looked to his left to see if there was any traffic travelling south on Wilson Road approaching the intersection from the north and then to his right to see if there was any traffic travelling north on Wilson Road, approaching the intersection from the south. There were no buildings on the land on either the northern or the southern side of the access road. The land on both sides comprised a grass verge giving way to natural bush. The bush on the southern side of the access road was quite large and thick. There were also lines of trees on the western side of Wilson Road to both the north and south of the intersection. According to photographs taken in August 2002 which were admitted into evidence (exhibits 1A, 1B, 1C, 1D and 1E), that bush and those trees impeded to some extent the vision of a driver of a vehicle or the rider of a bicycle (like the plaintiff) proceeding east in the access road who was attempting to observe traffic travelling north in Wilson Road approaching the intersection from the south.
9 The plaintiff said that when he was in the access road approaching the intersection and looked to his left, he saw no traffic in Wilson Road
(Page 5)
- approaching the intersection from the north. He said that when he looked to his right, he saw only a truck in Wilson Road, stopped just near the eastern entrance to the access road, facing north, with its left hand trafficator illuminated, indicating the driver's intention to turn left or west into the access road. The plaintiff said that he estimated the size of the truck at approximately eight tonnes and said that it had a cab separate from the canopy. The plaintiff said that the truck was stopped because there were a number of cars banked up between the stop line at the western end of the access road and the eastern entry to the access road off Wilson Road. The plaintiff said that he could also see past the truck and saw no other traffic proceeding north in Wilson Road towards the intersection. Accordingly, he was satisfied that the way was clear from both directions.
10 The plaintiff said that after he had looked both ways on Wilson Road and had seen that, apart from the stationary truck, the way was clear, he proceeded onto Wilson Road and began to execute a right hand turn, in order to proceed south. The plaintiff said that after he had commenced his right hand turn, and while he was in the middle of Wilson Road slightly south of the intersection, he was confronted by the defendant's utility proceeding north in Wilson Road and on that part of the road normally used by traffic proceeding south in Wilson Road. In other words, according to the plaintiff, the defendant's utility was overtaking the stationary truck by moving to the eastern most part of the road or the wrong side of the road for vehicles travelling north. The plaintiff said that the headlights on the utility were not illuminated.
11 The plaintiff said that, as soon as he saw the utility, he knew that a head-on collision was imminent and, in an attempt to avoid it, he applied his brakes and turned his bicycle hard to the right in an effort to avoid the utility on its left and ride between the utility and the stationary truck.
12 The plaintiff said that, by making the hard right turn, he avoided the front of the utility on its left hand side but then saw the utility was towing a trailer which, to his mind, was wider than the utility, and which was carrying a load which was "up in the air to some degree" (T22). He said that he raised his left arm to try and push himself off the utility and thereby avoid the trailer but his arm became caught, he believed, on "the bar work" behind the cab of the utility and, as a result, he was knocked off his bicycle and onto the roadway. He said that the utility at no time altered its direction of travel.
(Page 6)
13 The plaintiff said that the impact of the collision caused him to be thrown back or north from the point of impact and he came to rest in the middle of Wilson Road, just to the south of the intersection. However, he said that the actual point of impact was 10 metres further south in the middle of Wilson Road.
14 The plaintiff said that, while he was lying on the roadway, he heard footsteps and heard someone tell him not to move. He said he later ascertained that that was the driver of a utility which, immediately prior to the accident, had been travelling behind the plaintiff in the same direction.
15 The plaintiff said that, after that person had spoken to him, he saw two of his work colleagues. Then he saw a man who he later learnt was the defendant. He said that the defendant said to him words to the effect that he was sorry that he did not see him.
16 Under cross-examination, the plaintiff accepted that light rain was falling at the time of the accident but said that he could not recall whether he had rain in his face or eyes.
17 During his examination-in-chief, the plaintiff had not said anything about the give way line at the eastern end of the access road, over which he would have had to ride to enter onto Wilson Road. He was asked about that in cross-examination and said that he "believed" that the give way line was at the eastern end of the access road at the time of the accident. Then he said that, at the time of the accident, he did not recall the give way line being at the eastern end of the access road at all (T25). When asked, at a later point in his cross-examination, whether the give way line was at the eastern end of the access road at the time of the accident, he said (T27):
"I don't recall. I'm not saying it wasn't there. I just say I don't recall it."
18 Also during cross-examination, the plaintiff rejected both the suggestion that he had been obliged to stop at the eastern end of the access road to ensure that there was no traffic in Wilson Road approaching the intersection and the suggestion that he thought he could "ride straight out" from the access road onto Wilson Road. He explained his understanding of his obligations as follows (T25):
"Well, I understand that there's no stop sign there. In fact I'm fully aware there's no stop sign there. There's no give way sign
(Page 7)
- and – but I believe that at such an intersection, as with most intersections, there's a responsibility to give way."
19 The plaintiff claimed that, in this instance, he did give way. By that I think he meant that the defendant's vehicle had not been approaching the intersection, or he had not seen it approaching the intersection, immediately prior to the time he entered onto Wilson Road and that, therefore, there was no traffic on Wilson Road to which he was obliged to give way at the relevant time. Once he was on Wilson Road turning to the right to travel south, he considered that he was entitled to be given right of way on the eastern side of the roadway by vehicles travelling north on Wilson Road, such is the utility being driven by the defendant. However, the plaintiff also said that, as he was about to enter onto Wilson Road, he had still not seen the defendant's utility. He agreed with the suggestion that that was because his view of that part of Wilson Road was partially obscured by the stationary truck. He also conceded that he had ridden onto Wilson Road from the access road without stopping.
20 The plaintiff said that he first saw the defendant's utility when he was about half way across Wilson Road (T29). However, in response to the later proposition that he was only a metre or two onto Wilson Road when the accident occurred, he said that he did not know (T30). He then denied that he had "shot out" of the access road and been struck, and also denied that the impact occurred on the western side of Wilson Road adjacent to the eastern end of the median strip. He also said that, after the impact, he ended up on the roadway some distance south of the intersection and denied that he had been level with the eastern exit from the access road.
21 When the plaintiff was re-examined, I received into evidence a statement which he had made to the police on 2 July 2002 (two weeks after the accident) (exhibit 3)("the police statement") and a statutory declaration which he had made at the request of an investigator from the Insurance Commission of Western Australia (the defendant's third party insurer) dated 24 September 2002 (exhibit 4). The police statement is a very detailed, seven page document, in which the plaintiff not only recounts the events leading up to the accident, but also describes, with some particularity, the various roads on which he rode before the accident occurred. It also contains five references to the truck which the plaintiff said, in his oral evidence, was stationary in Wilson Road near the eastern entrance to the access road. The first two references to the truck in the police statement are much more detailed than and are not entirely consistent with what the plaintiff said in his oral evidence. The first
(Page 8)
- reference to the truck is on the first page of the police statement, where the plaintiff says:
"Just after turning left into Wilson Street (sic) (the plaintiff erroneously refers to the access road throughout the police statement as 'Wilson Street' and refers to Wilson Road as 'Craigie Street') I became aware of an 8 tonne truck, white in colour with some sort of purple striping, indicating left from Craigie Street (sic) to turn into Wilson Street (sic)."
23 The second reference to the truck in the police statement is on the third page. The plaintiff says:
"The 8 tonne truck was originally heading north on Craigie Street (sic) before indicating left to turn left into Wilson Street (sic)."
24 In his oral evidence, the plaintiff did not say he saw the truck proceeding north in Wilson Road before it stopped. He said that, when he first saw the truck, it was already stopped in Wilson Road near the eastern entrance to the access road (T20) and that he did not see it move thereafter (T38).
25 Also in the police statement, the plaintiff makes no mention of the give way line at all. He says on the third page:
"I've ridden to the Craigie Street (sic) end of Wilson Street (sic) with the intention of turning right. I don't think there is (sic) any 'Give Way', or 'Stop' signs erected at this end of Wilson Street (sic). I am not 100 per cent sure, but I am at least 90 per cent there isn't (sic) any signs. I should know because I've been ridding (sic) my bike down Wilson Street (sic) for the last year."
26 After re-examination had concluded, I asked the plaintiff some questions. In answer to those questions, the plaintiff said that the eight tonne truck which he had seen stopped in Wilson Road near the eastern entrance to the access road did not move at any time prior to the accident. He said that the give way line might have been at the eastern exit of the access road at the time of the accident and, if it was, he
(Page 9)
- understood that to mean that he was obliged to give way to vehicles in Wilson Road (T38).
The defendant's evidence
27 The plaintiff called no other witnesses. The defendant's counsel then opened the case for the defence and called the defendant to give evidence.
28 The defendant said that, at the time of the accident, he was employed as an apprentice boilermaker/welder with George Nulsen & Co, steel fabricators, at 17 Craigie Street, Bunbury. According to a map which was admitted into evidence (exhibit 6), Craigie Street was a ring road, the western most part of which was actually Wilson Road. At its northern most part, Wilson Road turned right and became the northern arm of Craigie Street ("Craigie Street north"). At its southern most part, Wilson Road turned left and became the southern arm of Craigie Street ("Craigie Street south").
29 The defendant said that, at about 8 am on 18 June 2002, he was at work. He said that he was driving a Holden WV one tonne utility, owned by his employer, and was towing a tandem trailer which was between six and eight feet wide. He said that he had driven the utility and trailer from his employer's workshop in Craigie Street north, south along Wilson Road and then east into Craigie Street south, where he had gone to the premises of One Steel Metaland to collect a quantity of rectangular hollow section ("RHS") and flat bar. The RHS was eight metres long and the flat bar was six metres long. He said that he loaded the RHS and flat bar onto three metal racks or frames which were built on the front and on the tray of the utility, behind the cab. When the RHS and flat bar were loaded on the racks they slightly overhung the front of the utility, at one end, and slightly overhung the tray, at the other. The defendant said that he did not load anything into the trailer.
30 After the defendant had loaded the utility with the RHS and flat bar, he left the premises of One Steel Metaland, drove west along Craigie Street south and then turned right into Wilson Road and travelled north towards the intersection. He was on his way back to his employer's workshop in Craigie Street north. He said that the headlights on the utility were illuminated.
31 The defendant said that, as he was driving north in Wilson Road, approaching the intersection, he saw a van or a utility which had partly entered the access road on the left but had part of its rear end protruding about two or two and a half feet into Wilson Road and, therefore, in the
(Page 10)
- path of the vehicle being driven by the defendant. The defendant said that, as he approached that vehicle, he illuminated his right hand indicator and then veered out approximately two feet to the right to avoid it. He said that, when he had first seen the other vehicle, it was moving slightly but that, as he overtook it, it had come to a stop. He said that he saw a car in front of the vehicle that was facing west in the access road which had also stopped.
32 The defendant said that it was drizzling rain and his vision was quite poor. He said that he was travelling at between 45 and 50 kilometres per hour. He said that, as he passed the rear of the vehicle stopped at the intersection, he looked to his left and saw the plaintiff, on his bicycle, emerging from the access road. He said that the plaintiff, at that time, was travelling fast. His exact words were (T 48):
"…I've just come around the rear of this vehicle and I've looked to my left and I've seen a cyclist absolutely gun it."
33 The defendant then went on to describe the access road as a "chicane", which he said was a fast moving S-bend, of the type used in motor racing to slow vehicles down. However, the defendant used the word "chicane" to indicate that he had often seen the access road used, and had used it himself, as a means of transferring quickly from Robertson Drive to Wilson Road. He said that because both the intersection of Robertson Drive and the access road and the intersection of Wilson Road and the access road were quite wide, road users coming off Robertson Drive and intending to enter onto Wilson Road, "diagonally cut" through the access road and entered onto Wilson Road at speed (T48).
34 The defendant said that when he first saw the plaintiff, the front wheel of the plaintiff's bicycle was on the give way line. He estimated his speed at 30-35 kilometres per hour. He said that the plaintiff then pulled out of the access road straight in front of him.
35 The defendant said that, in the course of his work, he drove along Wilson Road every day and sometimes as often as seven to eight times per day. He said that was because his employer often needed steel and there were a number of suppliers of steel along the road and in the adjacent area.
36 The defendant said that when he saw the plaintiff, he pulled the steering wheel of his vehicle hard to the right because he believed that, if he did not do so, the plaintiff would collide into the steel in the racks of
(Page 11)
- the utility, with disastrous consequences. The defendant said that he could not have turned the steering wheel to the left because, if he had done so, he would definitely have come into collision with the plaintiff.
37 The defendant said that, immediately prior to the accident, he was not driving very fast because of his load of steel. He said that when he pulled the steering wheel to the right, his utility veered in that direction and he looked over his left shoulder. He saw the plaintiff was "a bit wobbly" but thought he had cleared him. However, he then heard an impact and thought that the plaintiff had collided into the trailer he was towing. He said that at the time of impact, his utility and the trailer were immediately adjacent to the eastern end of the median strip.
38 The defendant said that he then straightened up the utility, pulled over to the eastern side of Wilson Road and parked in front of a power pole in front of the yard of WesTrac Equipment, which was on the eastern side of Wilson Road immediately opposite the intersection.
39 The defendant said that he then alighted from the utility and ran back to where the plaintiff was lying on the roadway. He said that the plaintiff was lying approximately a metre east of the eastern end of the access road and approximately a metre south of the median strip. He said that he did not see where the plaintiff's bicycle finished up after the accident.
40 The defendant said that when he reached the plaintiff, he (the plaintiff) was "wobbling around a bit". He thought he was in shock. He took his jacket off, placed it over the plaintiff and moved the plaintiff into the coma position. In examination-in-chief, the defendant was not asked what, if anything, he had said to the plaintiff when he went back to him.
41 Under cross-examination, the defendant conceded that, at the time of the accident, he knew that the intersection was "nasty" and that it was difficult both for road users on the access road to see vehicles travelling on Wilson Road and for road users in Wilson Road to see what was coming from the access road. He said that signs should be erected to regulate the flow of traffic more strictly (T58).
42 In cross-examination, there was put to the defendant a written statement he had given to the police, dated 18 June 2002, and completed by the defendant approximately an hour after the accident (exhibit 7). In the statement, the defendant says that the accident had occurred ten metres south of "WesTrac". That was a reference to the yard of WesTrac Equipment. It was suggested to the defendant that his statement meant that the accident had in fact occurred ten metres south of a point on
(Page 12)
- Wilson Road immediately adjacent to the end of the median strip. However, the defendant said that his statement did not mean that and that the accident had occurred immediately adjacent to the end of the median strip and not ten metres south of it. It was clear from two of the photographs (exhibits 1C and 1E) that the WesTrac premises actually extended for some distance both north and south of a point adjacent to the end of the median strip and that, therefore, it was impossible to say where the point "ten metres south of WesTrac" might be. It could easily have been a point on Wilson Road immediately adjacent to the eastern end of the median strip.
43 The defendant also conceded in cross-examination that, in his statement to the police stated 18 June 2002, he did not say that, shortly prior to colliding with the plaintiff, he had veered slightly to the right to avoid the end of the stationary vehicle which was stopped in the eastern entrance to the access road. The defendant also said that, when he veered around the stationary vehicle, the wheels on the right hand side of his vehicle may have crossed the imaginary line in the middle of Wilson Road and gone onto that side of the road reserved for vehicles travelling south. However, he said that, by the time he reached the median strip and shortly prior to his collision with the plaintiff, the wheels on the right hand side of his vehicle were returning to the correct side of the road (T78).
44 It was also put to the defendant in cross-examination that the vehicle which was stationary at the eastern entrance to the access road was not a van, as he had described, but an eight tonne truck, consistent with the evidence given by the plaintiff. The defendant rejected that suggestion out of hand and said that the vehicle was "a little van or a ute or something along those lines" (T82). Also during his cross-examination, the defendant categorically rejected the suggestion that the plaintiff had already completed his right hand turn into Wilson Road when the defendant first saw him.
45 It was also put to the defendant in cross-examination that when he had gone back to the plaintiff after the accident, he had said to him:
"I'm sorry. I didn't see you."
46 The defendant denied that he said that. He said that when he had reached the plaintiff, he had sworn at him and had asked him what he had been doing. However, when he saw that he was badly injured, he ceased doing that and gave the plaintiff his assistance.
(Page 13)
Julie Lorraine Brady
47 The defendant also called Julie Lorraine Brady to give evidence. Mrs Brady was a nurse who worked at a nursing home in Bunbury. She said that, at about 8 am on 18 June 2002, she had been driving a car north in Wilson Road, and had turned west into the access road with the intention of turning left from the access road into Robertson Drive. She said that, as she was driving north in Wilson Road towards the intersection, she saw a semi-trailer proceeding west in the access road. She said she saw the semi-trailer stop at the stop sign controlling traffic proceeding west on the access road and entering Robertson Drive, and then move off from the stop sign and enter Robertson Drive (T109). Mrs Brady said that, after she turned left into the access road and proceeded towards the stop sign, she saw a cyclist turn left into the access road from Robertson Drive and proceed east towards the intersection. She said that the cyclist was "going very fast" (T110). Mrs Brady said that as she moved forward towards the stop sign, she heard a noise. She looked in her rear vision mirror and saw the cyclist "in the air". She said that, prior to seeing the cyclist in the air, she did not see the cyclist collide with a vehicle and did not see either where the cyclist came to rest after being in the air. She said that, when she saw the cyclist in the air, he appeared to be in Wilson Road just past the eastern end of the median strip in the access road (T111).
48 Mrs Brady said that when she saw the cyclist in the air, she also saw a utility towing a trailer, travelling north in Wilson Road at the intersection. She said that, at that time, there were other vehicles behind her, travelling west in the access road.
49 Under cross-examination, Mrs Brady said that the only truck which she had seen in the vicinity at the time of the accident was the semi-trailer which had been in front of her in the access road and which she had seen turn left into Robertson Drive. She said that there was no truck behind her at any time (T112). She said that she was proceeding very slowly along the access road, because of the traffic, that it was raining quite heavily and that the visibility was not good. She admitted that she was not able to judge the cyclist's speed accurately but said that her view of the intersection was not blocked by any other vehicles and that she was able to see clearly both cyclist flying through the air and the utility towing the trailer in Wilson Road.
50 Mrs Brady said that, immediately after the accident, she saw people gather in the area where she had seen the cyclist in the air. She believed
(Page 14)
- that they were gathered around the cyclist on the roadway. She said she stopped her car with the intention of getting out and going back to see if she could help. However, because the traffic was heavy and it was raining, she decided not to get out and, instead, turned left into Robertson Drive and continued her journey.
Graeme Lindsay Wills
51 The defendant also called Graeme Lindsay Wills to give evidence. Mr Wills said that, immediately prior to the accident, he had been driving a car south on Robertson Drive and had turned left into the access road with the intention of travelling east and then turning right into Wilson Road. He said that, as he entered the access road, he saw a cyclist, at the eastern end of the access road, just at the point of entering upon Wilson Road. He said that he saw the cyclist ride out onto Wilson Road and then do a sharp right hand turn and lose control of his bicycle. He said that the next thing he saw was the cyclist flying through the air and, at the same time, he saw a motor car, proceeding north in Wilson Road. He said that the cyclist came to rest on that part of Wilson Road used by northbound traffic at a point slightly south of a point adjacent to the eastern end of the median strip (T119). Mr Wills said he stopped his car about half way over the give way line and to the north of where the cyclist was lying on the road, to prevent vehicles turning right from the access road onto Wilson Road from running over the cyclist.
52 Under cross-examination, Mr Wills said that the cyclist had made a perfectly normal right hand turn onto Wilson Road but did not get right across Wilson Road and then made a second "erratic" right hand turn (T122). He also said that he did not actually see a motor car collide with the cyclist and said that he was first aware of the accident when he saw the cyclist become airborne.
Credibility
53 The plaintiff gave his evidence in a very definite manner.
54 He seemed very certain of the version of events which he gave, but I was not sure whether that was because he actually recalled those events or because he had reconstructed them in his mind following the accident. The accident was obviously very traumatic for him. I would not have been surprised if that had affected his memory of it. However, he claimed to have a clear recall.
(Page 15)
55 There were some aspects of the plaintiff's evidence which were not very satisfactory. In the first place, he was very defensive and argumentative in cross-examination. Although that is to be expected to some extent, I felt that the plaintiff's aggressive attitude to a number of the propositions put to him by defence counsel was unwarranted and showed a distinct propensity to argue his case, rather than simply giving evidence of events as he remembered them.
56 I was also concerned that the plaintiff did not once in his evidence-in-chief say that when he entered onto Wilson Road, he had crossed the give way line, without stopping. The plaintiff displayed a rather odd attitude to the give way line. He did not mention it during his examination-in-chief and, when it was put to him in cross-examination that he had crossed the give way line to enter onto Wilson Road, he said that he "believed" the give way line was there at the time, and he could not recall whether it was there or not and that the give way line "might" have been there at the time. Nor did he mention it in the police statement, although he did mention the absence of a stop sign and a give way sign at the intersection.
57 On the other hand, the photographs taken a month or so after the accident (see exhibit 1C, in particular) showed the give way line quite clearly and both the defendant and Mr Wills said that the give way was there at the time. The defendant said that the plaintiff had crossed the give way line without stopping and Mr Wills said that, after the accident, he had parked his car over the give way line to protect the plaintiff from other cars (T49, T118 and T120).
58 There were other aspects of the plaintiff's evidence which were less than satisfactory. In that regard, I repeat what I have already said about the discrepancies between the plaintiff's oral evidence and the police statement (see pars 21-256 above).
59 On the other hand, the defendant gave his evidence in a more forthright and less defensive manner. He was quite prepared to concede when he was not sure of certain facts but firmly denied propositions in areas where he was certain. He was not seriously shaken in cross-examination.
60 In addition, there was the evidence of Mrs Brady and Mr Wills. They were both independent witnesses and displayed a clear recollection of what they saw. I have no hesitation in accepting their evidence and, where it differs from the evidence of the plaintiff, I prefer their evidence
(Page 16)
- to his. I also prefer the evidence of the defendant to that of the plaintiff, particularly where it is corroborated by the evidence of Mrs Brady and/or Mr Wills.
Allegations of negligence
61 In paragraph 4 of his statement of claim, the plaintiff alleges that the accident was caused by the defendant's negligence in that he:
(a) failed to keep a proper lookout for other road users;
(b) drove his vehicle on the incorrect side of the road;
(c) failed to swerve, steer or otherwise (manage his vehicle) to avoid a collision with the plaintiff; and
(d) failed to apply his brakes timeously or at all.
62 In paragraph 4 of his defence, the defendant denies he was negligent and alleges that the accident was caused wholly or in part by the negligence of the plaintiff in that he:
(a) failed to yield right of way to the defendant's utility, contrary to s 56(1)(sic) of the Code;
(b) failed to observe or heed the approach of the defendant's vehicle;
(c) failed to apply the brakes on his bicycle or to swerve, steer or otherwise avoid colliding with the vehicle being driven by the defendant;
(d) rode his bicycle at a speed which was excessive in the circumstances;
(e) failed to ensure that the way was clear for him to make a right turn onto Wilson Street (sic); and
(f) drove directly across the path of the vehicle driven by the defendant which had right of way.
Findings
63 I accept the evidence of Mrs Brady that, immediately prior to the accident, she saw a cyclist, whom I infer to have been the plaintiff, "going very fast" as he turned left off Robertson Drive into the access road and
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- proceeded east on the access road. I also accept the evidence of the defendant that he saw the plaintiff "absolutely gun it" as he was proceeding east on the access road and was about to enter onto Wilson Road. Although none of that evidence, nor in my opinion, any of the other evidence, allows me to make a finding as to the plaintiff's exact speed, I find that he entered into the access road and proceeded to the scene of the accident at a speed which, having regard for the wet conditions and the poor visibility at the time, was excessive and without slowing down.
64 I accept the evidence of the defendant and find that, at about the same time, there was a stationary van or utility at the eastern entrance to the access road with its rear end protruding two or two and a half feet into Wilson Road. I do not accept the evidence of the plaintiff that the vehicle stationary at the eastern end of the access road at the time was an eight tonne truck or any similar vehicle. That is contrary to the evidence of both the defendant and Mrs Brady, whose evidence I prefer to that of the plaintiff.
65 I am not prepared to find that, immediately prior to the accident, the defendant failed to keep a proper lookout. The defendant's evidence of the events leading up to the accident, which I accept, is consistent with him having kept a proper lookout at all material times. I also think that it is inherently likely that he would have been particularly vigilant, as he was carrying a load of steel, towing a trailer and approaching an intersection which he knew to be "nasty".
66 The plaintiff's evidence that, immediately following the accident, he heard the defendant say words to the effect that he was sorry and that he had not seen the plaintiff, might suggest that the defendant failed to keep a proper lookout. However, the defendant denied that he said that and said that he had in fact sworn at the plaintiff when he first went back to him. There is no other evidence which corroborates the plaintiff's version of what the defendant said. In those circumstances, I am not prepared to find that the defendant said he was sorry or that he had not seen the plaintiff.
67 I also accept the evidence of the defendant and find that, as he approached the intersection, he veered two or three feet to the right to pass the stationary vehicle but then moved back to his correct side of the road.
68 I do not accept the evidence of the plaintiff that, when he was on the access road, he looked to his right to see if there were any vehicles travelling north in Wilson Road and approaching the intersection from the
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- south. If the plaintiff had looked, as he claimed, he would have seen the defendant's vehicle. Although it was raining and visibility was poor, the defendant's vehicle was substantial, it was loaded with a quantity of steel on racks and was towing a trailer. It would have been extremely hard to miss.
69 I find that the plaintiff proceeded onto Wilson Road from the access road without stopping at the give way line, without observing or heeding the approach of the defendant's vehicle from the south and without giving way to the defendant's vehicle. I accept the defendant's evidence and find that, immediately upon seeing the plaintiff, he turned the steering wheel on his vehicle to the right and thereby veered to the right in an attempt to avoid a collision. I find that the defendant did not apply his brakes but also find that, because the plaintiff was so close when the defendant first saw him, the application of the brakes on the defendant's vehicle would not have prevented a collision.
70 On the basis of the evidence of the defendant and Mr Wills, which I prefer to that of the plaintiff, I find that the collision occurred at or slightly south of a point on the western part of Wilson Road immediately to the east of the eastern end of the median strip in the access road.
Plaintiff's failure to give way
71 The defendant's principal allegation is that the accident was caused by the negligence of the plaintiff by failing to give way at the intersection when, by virtue of the provisions of the Code, he was obliged to do so. In that regard, the defendant relies on reg 56 of the Code. That regulation provides:
"Giving way at a T-intersection
(1) This regulation only applies to a driver at a T-intersection that is not controlled by traffic-control signals, or does not have a 'stop' sign, stop line, 'give way' sign or give way line, that applies to that driver.
(2) If a driver at a T-intersection is turning left (except if the driver is using a slip lane), or right, from the terminating road into the continuing road, the driver shall give way to-
(a) any vehicle travelling on the continuing road;
…"
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72 However, the clear evidence in this case is that there was at the eastern end of the access road, facing vehicles travelling east in the access road, a give way line. Therefore, in my opinion, reg 56 has no application to the facts of this case.
73 On the other hand, reg 52 of the Code provides:
"Giving way at a … give way line at an intersection
(1) A driver at an intersection with a … give way line shall give way to a vehicle in, entering or approaching the intersection except –
(a) an oncoming vehicle turning right at the intersection, if a 'stop' sign, stop line, 'give way' sign or give way line applies to the driver of the oncoming vehicle;
(b) a vehicle turning left at the intersection using a slip lane; or
(c) a vehicle making a u-turn."
75 In seeking to argue that, notwithstanding his failure to give way to the defendant, in circumstances in which he was clearly obliged to do so, the defendant was negligent and his negligence caused the accident wholly or in part, the plaintiff referred to Welch v Surtees, unreported; SCt FCt of WA; Library No 980626; 29 October 1998. That case also involved a collision between two vehicles at a T-intersection. The appellant was driving a car north in the road which terminated in the T-intersection and the respondent was driving a car west in the road which continued through the T-intersection. There was no stop sign, stop line, give way sign or give way line controlling traffic entering onto the continuing road from the terminating road. The accident occurred at night and the topography of the area and the steep gradients of the roads leading to the intersection meant that drivers approaching from both the continuing road and the terminating road could not see vehicles approaching the intersection on the other road until they were only 6 metres away from the intersection.
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76 At first instance, the case was heard by a Commissioner of the District Court. The Commissioner found that the vehicle driven by the respondent was only 30 metres from the intersection when the vehicle driven by the appellant entered the intersection and, because the appellant was obliged to give way to the respondent, the respondent had not been negligent. On that basis, he dismissed the appellant's claim.
77 On appeal, the Full Court had regard for an answer to an interrogatory which the respondent had given on oath prior to the trial, in which he had said that he had first applied the brakes on his vehicle when he was 80-100 metres from the intersection. The Court inferred from that answer that, contrary to the respondent's oral evidence, he had been 80-100 metres from the intersection when he had first seen the appellant's vehicle. On that basis, the Court found that the respondent had been driving much faster than he claimed and that he had not been keeping a proper lookout. The Full Court overturned the Commissioner's finding and his dismissal of the appellant's claim and, instead, apportioned liability 65/35 in favour of the respondent.
78 However the facts of Welch v Surtees (supra) were very different from this case. In Welch, the topography of the intersection made it difficult for road users approaching the intersection from both directions to see each other, particularly at night. In this case, the intersection was broad and flat and, although the defendant conceded that there were some difficulties seeing vehicles approaching from the other road, the photographs made it clear that there was quite good visibility for some considerable distance. Also, in this case, the accident occurred in daylight hours.
79 In addition, and unlike the respondent in Welch, there was no inconsistency in the evidence of the defendant in this case as to when he had first seen the plaintiff. He said that when he first saw the plaintiff, the front of his bicycle wheel was on the give way line. He said that the plaintiff pulled out of the access road straight in front of him. Although the plaintiff denied that he had done that, I prefer the evidence of the defendant.
Conclusion
80 On the basis of the factual findings I have made, the plaintiff has not established that, at the time of the accident, the defendant failed to keep a proper lookout or drove his vehicle on the incorrect side of Wilson Road. Nor has the plaintiff established that the defendant failed to swerve, steer or otherwise manage his vehicle to avoid a collision. In fact, I have found
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- that the defendant did steer his vehicle to the right when he first saw the plaintiff.
81 The evidence does establish that, as alleged in par 4(d) of the statement of claim, the defendant failed to apply his brakes. However, in my opinion, the application of the brakes on the defendant's vehicle would not have prevented the accident.
82 In my opinion, the accident was caused by the plaintiff failing to keep a proper lookout as he was approaching the intersection, particularly for vehicles travelling north on Wilson Road approaching the intersection from the south, by the plaintiff riding his bicycle into the intersection at a speed which was, in the circumstances, excessive and by the plaintiff failing to give way to the vehicle being driven by the defendant, in circumstances in which he was obliged to do so.
83 Accordingly, the plaintiff's claim will be dismissed.
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