Waddell v Brown; Mason v Waddell

[2001] NSWSC 768

CITATION:

Waddell v Brown & Anor; Mason v Waddell & Ors [2001] NSWSC 768

CURRENT JURISDICTION:

Common Law Division

FILE NUMBER(S):

SC 20267 of 1999; 20541 of 1999

HEARING DATE(S):

28 - 29 August 2001

JUDGMENT DATE:

5 September 2001

PARTIES :

20267 of 1999
Brett James Waddell (Plaintiff)
v
Thomas James Brown (First Defendant)
Northern Territory of Australia (Second Defendant)

20541 of 1999
Kelly Lea Mason (Plaintiff)
v
Brett James Waddell (Defendant)

Cross Claim
Brett James Waddell (Cross-Claimant)
v
Thomas James Brown (First Cross-Defendant)
Northern Territory Government (Second Cross-Defendant)

JUDGMENT OF:

Master Malpass

COUNSEL :	20267 of 1999 Mr T Clarke (Plaintiff) Mr I D Cullen (Defendants) 20541 of 1999 Mr J G Stewart (Cross-Claimant) Mr I D Cullen (Cross-Defendants)
SOLICITORS:	20267 of 1999 Keddies (Plaintiff) Ferguson Holz (Defendants) 20541 of 1999 Coopers Legal (Cross-Claimant) Ferguson Holz (Cross-Defendants)
CATCHWORDS:	motor vehicle accident in Northern Territory - breach of duty of care - no question of principle.
LEGISLATION CITED:	N/A
CASES CITED:	N/A
DECISION:	See Paragraph 36.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

WEDNESDAY 5 SEPTEMBER 2001

20267 of 1999 BRETT JAMES WADDELL v THOMAS JAMES BROWN & ANOR

20541 OF 1999 KELLY LEA MASON v BRETT JAMES WADDELL & ORS

JUDGMENT


1   There are two matters set down for hearing before the court. There is the claim brought by the plaintiff in proceedings number 20267 of 1999. There is a Cross-Claim brought in proceedings number 20541 of 1999. Both matters throw up the same issues.

2   The Cross-Claim was brought in proceedings in which the original claim has now been settled. In those proceedings, the named plaintiff became entitled to judgment in the sum of $169,500. It is common ground that this amount represents a reasonable sum.

3   These matters arise out of a motor vehicle accident that took place on Tuesday 18 July 1996 at about 10.30 am in the Northern Territory (the Territory). There was a collision between a 1981 Yamaha XS 850 motor cycle and a 1994 Mitsubishi Triton utility. The motor cycle was under the control of the plaintiff in proceedings number 20267 of 1999 (Waddell). The plaintiff in proceedings number 20541 of 1999 (Mason) was riding pillion on the motor cycle. Thomas Brown (Brown) was the driver of the utility. The utility was owned by the Northern Territory of Australia.

4   At the time of the accident, both Waddell and Mason were visiting the Territory on a holiday. They had arrived in the Territory on 16 July 1996. At the time, they were proceeding from Alice Springs to Ayers Rock. About 15 minutes prior to the accident they had stopped for coffee and a cigarette at Jim’s Place.

5   The accident took place near the intersection of Stuart Highway and Ernest Giles Road. It was a T intersection located about 130 kilometres south of Alice Springs. There was a turn off on the right to Kings Canyon. Waddell was unfamiliar with the roadway.

6   Prior to the collision, both vehicles were travelling in a southerly direction along Stuart Highway. At the time of impact the utility was on the north side of the intersection (perhaps about 5 - 10 metres from it). It was struck in the rear by the motor cycle. The damage to the utility has been described as being limited to longitudinal indentation of the rear tail gate area extending into the rear section of the cargo area and offset to the right side of midline. The motor cycle mainly suffered frontal damage. Waddell was thrown from the motor cycle and landed in the back of the utility.

7   There was no speed restriction on the relevant section of the roadway. It is commonplace for vehicles to travel at high speed.

8   There are signs which notify a motorist approaching the intersection from the north of the intersection itself. Firstly, there is a sign about 300 metres from the intersection. Secondly, there is a further sign about 175 metres from the intersection. In the area of the accident, the Stuart Highway is a straight road (well over a kilometre of clear straight road).

9   At the intersection itself, apart from the one lane for northbound and the one lane for southbound motorists, there is an additional lane which enables the proceeding inside of vehicles making a right hand turn at the intersection. This lane has been referred to as a slip lane for passing traffic. It commenced at about the second of the two signs as a tapered lane. It assumed full width after about 75 metres. This left a run of about 100 metres to the intersection itself. The other two lanes were about 3.5 metres in width. The slip lane was about 3.2 metres wide.

10   The road surface is sealed bitumen. At the time of the accident the weather was fine and hot. It was described as a beautiful sunny day. The traffic was very light.

11   Shortly after the commencement of the hearing, following some ventilation of matters and discussion between counsel, certain arrangements were put in place. At the commencement, Waddell had been represented by different counsel in each matter. Arrangements were made between counsel for him to be largely represented by counsel appearing in proceedings number 20267 of 1999. It was agreed that the participation of the other counsel should exclude any cross-examination. There were problems as to the applicable regime for assessment of damages. It was thought that this was a possible area of compromise following determination of the question of liability. By agreement, orders were made that the questions of liability and quantum be separately determined and that the question of liability be first determined. The court then proceeded to hear the question of liability.

12   Waddell gave evidence on his own behalf. He called Senior Constable Jones (the police officer who had investigated the accident) and Mason. A report from Mr Bailey (a road safety expert) was tendered (Exhibit A). He was not required for cross-examination.

13   Brown gave evidence in his own case. He was the only witness called in the case for the defence.

14   The parties tendered documentation (including statements made by Waddell, Mason and Brown together with an accident report and various photographs).

15   During the giving of evidence, I closely observed the demeanour of the witnesses. In assessing credibility, I have had regard both to demeanour and evidence.

16   There is some conflict in the versions concerning the accident given to the court. In the case of each witness, there is discrepancy between what was said in oral evidence and what appeared in the information provided to the police. As the accident took place more than five years ago, it is not surprising that there has been a diminishing of accurate recollection.

17   In my view, the conflict has little significance. The case can be determined without resolving the conflict.

18   There was some discrepancy in what has been said by Brown. I do not regard it as being significant. It seems to me that he was a witness who did his best to give reliable evidence. His credibility was not the subject of attack. There was a muted attack on his reliability. Largely, I regard him as a reliable witness. Both Waddell and Mason exhibited a tendency to try and present a version which was more favourable to Waddell’s case. Waddell gave inconsistent answers on a number of matters. Largely, I do not regard him as a reliable witness. Where there is conflict, I prefer the evidence of Brown.

19   Waddell bears the onus of proving breach of duty of care. He is required to prove it on the balance of probabilities. In my view, he has failed to discharge that onus. This seems to me to be a result that flows from inter alia even his own version.

20   Shortly after the commencement of the hearing, an application to further amend the Statement of Claim was made. There was a tender of a proposed 2nd Amended Statement of Claim. It became Exhibit B. An amendment was allowed to enable the plaintiff to rely on the particulars of negligence which appear in (i) to (xi) of paragraph 6 of Exhibit B.

21   The amended particulars did not loom large in the ultimate presentation of the Waddell case. One counsel condensed the alleged negligence to being one of slowing down and stopping when it was dangerous to do so. There was a contention that the accident could have been avoided if Brown had moved his vehicle so as to effect the right hand turn. The other counsel looked to a mosaic of circumstances which were said to create a high duty of care. There was an allegation of failure to keep a proper lookout. It was also said that upon becoming aware of the motor cycle he should have pulled his vehicle off the road until the motor cycle had passed. I am unable to accept the contentions advanced by either counsel.

22   It was said that Brown had failed to keep a proper lookout in that he failed to keep the motor cycle under surveillance as he approached the intersection. The evidence was that he did look into his rear vision mirror and that he did see the approaching motor cycle. I do not accept the contention that he was required to keep the motor cycle under constant surveillance (or maintain an awareness of it). He was approaching an intersection and due care required him also to give attention to traffic that may be upon or approaching the intersection. It was reasonable to expect that the motor cycle should have been aware of his presence and that his vehicle was slowing down. He proceeded on the assumption that it would pass by his vehicle and travel along the slip lane. In my view, he was entitled to do so. It did not involve any want of care in the circumstances of this case.

23   Brown was an employee of Transport and Works ( a department of the Northern Territory Government). He was driving to Kings Canyon checking the kilometre distances of permanent reference points along the Stuart Highway. The utility was fitted with a distance measuring device (Halda Rally Computer 2) to enable the calibration checks to be made. There was a checkpoint at the intersection (he had proceeded from an earlier check point about 23 kilometres away). As he approached the intersection, he remained totally within the southbound lane. He was slowing down his vehicle (inter alia by use of his brakes) so that he could stop and make the calibration at the intersection. After completing the check, it was his intention to turn right into Ernest Giles Road and head towards Kings Canyon.

24   As he approached the intersection, he turned on his right-hand indicator. It is the evidence of Waddell that he saw the right-hand indication only, he did not see any brake light. He could not say whether it was moving slowly or stationary. This is hardly surprising as, prior to impact, he had but a split second view of the utility only. The impact took place shortly before the utility reached the intersection. At the time, the utility was moving slowly. I accept the evidence from Brown that it was moving slowly and that the impact took place before the utility reached the intersection. This evidence is consistent with the evidence given by the police officer.

25   The evidence establishes that Waddell did not see the utility until he was in the order of 30 to 40 metres “out”. There may be some ambiguity as to whether he was referring to the vehicle or the intersection. An answer in cross-examination suggests that he had in mind the utility. He saw it sitting in the middle of the road. His response was a hard application of the brakes which saw his bike skidding. The skidding left black and very visible marks on the roadway (which were paced to be of about 36 metres in length). The skid marks showed a slight deviation to the right. The plaintiff himself conceded that he was really unable to steer the motor cycle when it was skidding. The accident happened in a split second after he saw the utility.

26   In his evidence, Waddell mentioned a little bit of haze which was said to involve mainly the countryside and the road. It did not cause him to slow down. Initially, he said that it probably did affect his vision. I do not accept this evidence. Later, he appeared to accept that he had clear vision and could offer no explanation for not seeing the utility earlier. Ultimately, this was the stance taken in the presentation of his case. I am satisfied from other evidence that he had a clear vision and that any haze had no relevance to the accident itself.

27   The belated awareness of the utility was not the only shortcoming in the sufficiency of attention. He did not see either of the signs which warned of the approaching intersection. He was unaware of the intersection itself at least until shortly prior to impact. He was unaware of the slip lane. His deplorable lack of attention was a primary cause of the accident In submissions, it was not disputed that he had failed to keep a proper lookout. In my view, if he had been keeping a proper lookout, the accident should not have taken place.

28   In his approach to the intersection, there had not been any slackening of speed. When he saw the utility, he was travelling at a speed of between 120/130 kph (and at about 110 - 120 before impact). It was a speed that was too fast in the circumstances. It reduced his opportunities to avoid the collision. He chose a hard application of the brakes and lost control of his vehicle. He was then unable to avoid collision.

29   There was the possibility of taking evasive action (instead of a hard application of the brakes). If he had exercised sufficient care, he would have been aware of the slip lane. If he had been aware of it, there was the possibility of moving into it and avoiding the accident.

30   For completeness, I should mention some further matters. These were ventilated during submissions.

31   Waddell described the vehicle as being creamy and a little bit dirty. In his case, he tendered two photographs of the utility. Neither of the photographs supports this description. The photographs which were taken shortly after the accident show the vehicle as being of shiny white and of clean appearance.

32   There is conflict in the evidence as to whether or not prior to the impact, Brown had turned on his hazard lights and/or his dome light. In my view, it is unnecessary to resolve this conflict. However, if there be a need to do so, I prefer the evidence of Brown on these matters. In addition to the matters of reliability already mentioned, a brief instant was the only opportunity had to make observations of the utility. I do not accept that either he or Mason were in a position to make any detailed or accurate observations as to what lighting was on display prior to impact.

33   In the circumstances of this case, I do not consider that the fact that Brown was engaged in the performance of duties for his employer had any bearing upon the question of liability. The accident occurred prior to him stopping his vehicle for the purpose of performing those duties. From the perspective of Waddell, he was to be seen as another motorist on the roadway who was proceeding to the execution of a right-hand turn to Kings Canyon.

34   I have read the report of Mr Bailey. Counsel have referred the court to parts of it. In my view, it does little to assist Waddell in the circumstances of this case.

35   Some argument was directed to the issue of contributory negligence. In the light of the findings made, this issue does not arise. For the assistance of the parties, I can add that a finding of breach of duty would have led to a finding of contributory negligence on the part of Waddell (of a high degree of culpability).

36   In proceedings number 20267 of 1999, the Statement of Claim is dismissed. The plaintiff is to pay the costs of the proceedings. In proceedings number 20541 of 1999 the Cross-Claim is dismissed. The Cross-Claimant is to pay the costs of the Cross-Claim. The Exhibits may be returned.
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Last Modified: 09/06/2001