Waterfall v Antony
[2012] VSC 458
•4 October 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT WARRNAMBOOL
COMMON LAW DIVISION
No. S CI 2011 05777
| JOHN RONALD WATERFALL | Plaintiff |
| v | |
| STUART ROSS ANTONY | Defendant |
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JUDGE: | BEACH J | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 1-3 October 2012 | |
DATE OF JUDGMENT: | 4 October 2012 | |
CASE MAY BE CITED AS: | Waterfall v Antony | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 458 | |
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ACCIDENT COMPENSATION – Transport accident – Motor vehicle accident in Western Australia – Law of Western Australia to be applied – Breach of duty – Negligence – Contributory negligence – Civil Liability Act 2002 (WA), ss 3A, 5A(1), 5B, 5C, 5D and 5K.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C.W.R. Harrison SC with Mr I.R. Fehring | Stringer Clark |
| For the Defendant | Mr P.B. Jens | Hunt & Hunt |
HIS HONOUR:
Introduction
On 14 November 2008, on the Eyre Highway, Madura Pass, Western Australia, a motorcycle then being ridden by the plaintiff, John Ronald Waterfall, collided with a motor vehicle then being driven by the defendant, Stuart Ross Antony. At the time of the collision, the defendant was towing a caravan and attempting to make a right hand turn off the Eyre Highway, while the plaintiff (who was travelling in the same direction as the defendant) was attempting to overtake the defendant’s vehicle.
As a result of the collision, the plaintiff suffered serious injuries, including a fracture dislocation of his left hip.
In this proceeding, the plaintiff claims damages from the defendant, alleging that his injuries were caused by the negligence of the defendant. The defendant denies that he was negligent. In the alternative, the defendant alleges that if he was negligent, then there was contributory negligence on the part of the plaintiff.
As the accident happened in Western Australia, the law to be applied is the law of Western Australia. That is, questions of liability and the assessment of any damages in this case fall to be determined by the application of Western Australian law.[1]
[1]John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503.
At the commencement of the trial, both liability and quantum were in issue. However, on day two of the trial, counsel for the parties informed the Court that, in the event that the plaintiff established an entitlement to damages, the quantum of the plaintiff’s damages were agreed.[2] During final addresses, I was told that the agreed figure is $774,980 – and that no question of interest arises.
[2]As to the principles by which such damages would have fallen to be assessed, see s 3C of the Motor Vehicle (Third Party Insurance) Act 1943. See further, Insurance Commission of Western Australia v Weatherall [2007] WASCA 264, [2], [40] and [260]-[261]; s 3A of the Motor Vehicle (Third Party Insurance) Act; ss 3A, 6(1) and 10A of the Civil Liability Act 2002; and s 42 of the Transport Accident Act 1986.
The accident
Following the resolution of quantum issues, only four witnesses were called to give evidence about the accident: first, the plaintiff; secondly, Mr Peter Le Serf, a person who had spoken to the plaintiff earlier in the day, and who came upon the accident a short time after it happened; thirdly, the defendant; and fourthly, the defendant’s wife, Mrs Antony, who was travelling as a front seat passenger in the defendant’s vehicle at the time of the accident. Additionally, various photographs of the accident scene, the motorcycle and the defendant’s vehicle were tendered – as were the defendant’s answers to the plaintiff’s interrogatories, an affidavit sworn previously by the plaintiff[3] and a statement taken by police from the plaintiff some eleven days after the accident.[4]
[3]Sworn 30 March 2010.
[4]25 November 2008.
At the point where the accident occurred, the Eyre Highway runs east-west. Shortly prior to the accident, the plaintiff and the defendant were both travelling in a westerly direction. At that point, there were two westbound lanes, separated from each other by a broken white line, and an eastbound lane, separated from the westbound lanes by two continuous double lines. There was a lookout off to the north of the Eyre Highway, and a small gravel road led from the northern side of the Eyre Highway to the lookout. There were two relevant signposts to the lookout: first, a signpost approximately 200 metres to the east of the lookout road; and secondly, a signpost at about the point of the lookout road – but on the southern side of the Eyre Highway.
Evidence was given that the Eyre Highway had an uphill gradient when approaching the lookout road from the east. The defendant said that the gradient flattened out as one came closer to the lookout road. As is apparent from the photographs, the lookout road was near the top of the slope, and the Eyre Highway at this point curves to the right.
The plaintiff gave evidence that he was travelling on his motorcycle from Victoria to Western Australia for the purpose of commencing new employment. On the day of the accident, the plaintiff had travelled some 500 kilometres before the accident occurred. His last stop was at the Madura Roadhouse. At the Madura Roadhouse, he spoke to Mr Le Serf. He had seen Mr Le Serf on a number of occasions at previous stops along the way. There was some discussion between the plaintiff and Mr Le Serf as to whether the plaintiff should put his motorcycle on the back of Mr Le Serf’s truck so as to save fuel. In the end, this did not occur.
The plaintiff gave evidence that he left the Madura Roadhouse at approximately 11.30am, travelling west along the Eyre Highway. The accident occurred within a matter of minutes. The plaintiff said that he saw the defendant’s caravan “up ahead going slow”. The plaintiff was doing 90 or 100 kilometres per hour, “around the speed limit”. Initially, there was debate between the parties as to whether the applicable speed limit was 90 kilometres per hour or 100 kilometres per hour. In the end, this issue became of little moment when counsel for the defendant said he would not be putting that the plaintiff was travelling at an excessive speed.
The plaintiff gave evidence that when he first saw the defendant’s caravan, it was in the left lane. He said he put his indicator on, moved to the centre lane (the right lane of the two westbound lanes) and proceeded to overtake the caravan. He said that he had almost passed the caravan when the vehicle towing it came straight across in front of him. He tried to avoid a collision by turning right, and away from the defendant’s vehicle. He was asked and answered the following question:
“Did you cross the double white lines before you hit the vehicle?---I honestly couldn’t answer that but I don’t think so.”
As to the aftermath of the accident, the plaintiff was asked and answered the following questions:
“You came off your motorcycle?---Yes.
Any idea where you ended up?---I believe I went over the top of the vehicle and ended up on the right hand side of the road.
You were there – where did the motorcycle end up?---On the right hand side of the road.
Where was it in relation to you?---I’m not too sure actually. I was lying on the ground and I remember it being there, but …”
Photographs of the defendant’s vehicle show that the motorcycle collided with the front driver’s side corner of the vehicle with impact from half way along the front quarter panel on the driver’s side to the very front of the vehicle. The force of the collision also pulled the bull bar on the defendant’s vehicle away from the front of the vehicle.
Photographs were tendered showing marks on the northern side of the bitumen surface and the gravel to the north of the bitumen. In evidence in chief, the plaintiff was asked about these marks. He said, “[t]he marks on the road and on the gravel appear to be where my bike landed”.
When cross-examined about the precise point on the roadway where the impact occurred, the plaintiff conceded that he may have crossed the double lines in an attempt to avoid colliding with the defendant’s vehicle. He was not entirely sure of the precise point of the collision. However, he denied the suggestion that the collision was “very close to the northern edge”. In the course of this cross-examination, the plaintiff’s previous statement to the police that he “may have crossed the lines to avoid the crash”, and his affidavit containing, amongst other statements, the statement, “I was not able to avoid a collision and the contact that was eventually made would have probably been over the double lines or close to the other side of the road” were put to him. However, while he acknowledged the making of these statements, the plaintiff maintained his position in evidence that the collision did not occur on the northern side of the eastbound lane.
Mr Le Serf was called by the plaintiff. He did not see the accident, but came upon it not long afterwards. He observed the motorcycle and the plaintiff on the verge of the right hand side of the road (northern side of the Eyre Highway). As to the position of the defendant’s vehicle and caravan, Mr Le Serf said that the vehicle and caravan were on an angle from the left hand side of the road across to the right hand side of the road. He described 20% of the caravan (the back left corner) being in the left westbound lane, the vehicle and the caravan being at a 45 to 60 degree angle to the roadway and some of the defendant’s vehicle being over the double lines and in the eastbound lane. The plaintiff contended that this description supported the plaintiff’s version of the collision: that is, that the defendant was turning right from the left of the two westbound lanes.
Mr Le Serf was asked and answered the following questions about the position of the plaintiff and the plaintiff’s motorcycle:
“Where was Mr Waterfall?---Mr Waterfall was over in the – I guess on the – on the shoulder or verge of the lane of the road heading east.
Where was his motorcycle?---Well, partly on top of him.
What was done about that?---Well, there was me and the – that friend of mine and – and another – we actually lifted the bike to allow Mr Waterfall to get out from under it, and then just left him there and comforted him because he was obviously in a lot of trouble.”
Mr Le Serf then described the defendant’s vehicle and caravan being moved off the roadway “Because it was basically blocking a lot of the road we all suggested that it would be a good idea to get it off the road before there’s another accident”.
The defendant gave evidence that on the day of the accident, he was travelling as part of a year long trip with his wife in a Toyota Hilux four wheel drive. They were towing a caravan and had a tinny on the roof of the four wheel drive. They, too, stopped at the Madura Roadhouse on the day in question, having travelled about 300 kilometres to get to it.
The defendant and his wife were aware of the lookout. They had seen it on their map, and were intending to go there for lunch. The defendant described travelling in the left lane as travelling in the slow lane – the road being “quite steep”. He said three quarters of the way up, the road levelled out and there was a sign indicating the lookout. The defendant said he looked in the mirror, put his indicators on and moved across into the right lane for westbound traffic. He said they were only going very slowly when he moved into the right lane.
The defendant said that initially he was doing approximately 30 kilometres per hour in second gear. After changing into the right lane, he said he observed what appears to have been the second sign pointing to the lookout and, to use his words, “[t]hat’s when I slowed down, I’d changed down to first gear and turned across into the lane to turn down the road”. He said at this point he was probably travelling between five and fifteen kilometres per hour. He said that he was nearly to the edge of the bitumen (on the north) when he heard a noise and the motorcycle collided with his vehicle. He said the front wheel of his vehicle would have been just over the single white line marking the northern edge of the eastbound lane. I interpolate here that the photographs of the marks, which the plaintiff accepts were made by his motorcycle when it landed after the collision, show that the marks are also to the north of this line.
In cross-examination, the defendant was asked how far from the turnoff he was when he moved into the right hand lane. He said, “[p]robably 50, 70 metres”. He said that the whole of his vehicle and caravan were in the right hand lane, leaving a completely open pathway for the left lane. He was then asked and answered the following questions:
“You then come up to the turn, for the 50 to 70 metres have you got your right hand blinker on?---For most of the time we would have had, yes.
So 50 metres of it?---Yes.”
The defendant was cross-examined about his failure to see the plaintiff before the collision. He was asked and answered the following questions:[5]
[5]T91.22 – T93.4.
“So if he’s coming up behind you at that speed he can only have been tucked in behind the blind spot, which would be immediately behind your caravan, if he ever was, for a very short time?---Yes.
So for the rest of the time, if he is there he has got to be visible down the road?---Until he come over the rise, yes.
Is the rise down at the bottom of that photograph, the furthest away from the photograph, is that what you are talking about?---Yes.
You never saw him before the accident?---Not on the road, no.
The first you saw of him was when he went across your bonnet?---Yes.
What I want to suggest to you is that bearing in mind that aggregation of factors, that is him coming up behind you pretty quickly, you travelling that slow, the curved road, if you’d looked you would have had to have seen him?---I don’t think so, that’s your opinion.
I’d like you to comment on it. I’m suggesting to you that for whatever reason, an oversight or whatever, on this occasion you can’t have looked?
---Well, we turned our corner and the mirror doesn’t go a long way one side and if he’s over the brow of the hill I can’t see him, no.But you would look when you turn on your blinker, that would be a normal pattern wouldn't it? Blinker on, have a look in the mirror?---No. You look in the mirror and then put the blinker on.
So if you’ve done that you would have had to have seen him if your recollection is – I’m sorry. If you had done that, if you’d looked in the mirror and turned on the blinker at the same time and proceeded on for another 50 to 70 metres, he’s closing fast on you, you’d have to have seen him if you’d looked, wouldn’t you?---Well, I don’t think so.
What other explanation is there?---Well, somebody doing 100 and somebody doing 15, he would have caught - made that difference in a pretty quick time.
What, three, five, ten seconds?‑‑‑I don’t know.
But if you’d looked before you’d embarked on the right hand turn, by that stage at least you would have had to have seen him?---Well, that’s your opinion.
It has got to be right doesn’t it, sir?---No.
If you looked when you actually start turning the wheel you would have had to have seen him?---Okay, yes, I didn’t look when I started turning the wheel, no. We were on double lines and we weren’t ‑ ‑ ‑“
Asked further about the use of indicators, the defendant gave evidence that some 15 to 20 minutes after the accident, he went back to his vehicle (having got out of it immediately after the accident) and he saw his right indicators still working.
Mrs Antony gave evidence of her observations from the front passenger seat of the defendant’s vehicle. She said immediately after leaving the Madura Roadhouse, they were heading up to the top to go to the lookout and have lunch. She described the road as a fairly long incline, going west and very steep. She gave evidence that they started in the left hand lane and moved to the right hand lane because they knew the lookout was on the right hand side. She remembered seeing both of the relevant signposts. She was asked and answered the following questions:[6]
[6]T114.5 - .23.
“In any event, you say the vehicle you were in went in to the right-hand lane of the two lanes?---M’mm.
At some stage?---M’mm.
Then what occurred?---We were just looking for the turn off and we knew it had to be somewhere there.
Yes, keep going?---So, yes, we were travelling pretty slow looking for it and, you know, looking around and I spotted it and I said, ‘There it is there.’
Yes, and then what occurred?---We were - we were practically at a standstill we were so slow, and I noticed my husband look in the rear view mirror, the mirror at the side and start to turn.
Yes, and then what occurred after?---And then we were nearly to the gravel on the other side of the oncoming lane when I heard this scream and a motorbike hit us.
Was it a heavy impact?---Yes.
Subsequently you learned it was a motorcycle?---Yes.
Did you see what happened to the motorcyclist at the very moment?---He went over the bonnet.”
Mrs Antony was asked about indicators, but was unable to give any evidence about the defendant’s use (or lack of use) of them.
The accident: findings
Before turning to the findings I will make, it is appropriate to make some comments about the four witnesses who gave evidence. To my observation, each of them attempted to give an honest and accurate account of events as recollected by them. I did not form the view that any of them were attempting to mislead me in any way.
Each witness was cross-examined in some detail about their evidence. As is the nature of a case where witnesses are being asked to recollect, in great detail, events that happened a number of years ago, each of them were at times unable to answer with the precision the cross-examiner might have liked. However, in some cases, it would have frankly been surprising if the relevant detail sought could have been recollected at this late stage.
Essentially, there are two competing versions of the accident. The plaintiff’s version is that he was travelling at about 100 kilometres per hour when he first saw the defendant’s caravan in the left lane. The plaintiff moved into the right lane to overtake. While overtaking, the defendant turned right in front of him. While he attempted to steer right to avoid the collision, the collision occurred somewhere near the double white lines. Further, no indication was given by the defendant of the manoeuvre he was about to perform before the accident occurred.
On the other hand, the defendant’s version (supported to some extent by his wife) is that they were always intending to go to the lookout. At about the time they saw the first lookout sign, the defendant moved from the left lane to the right lane (having previously looked in his mirror and indicated). They were in the right lane, travelling slowly when they came to the second sign and the lookout – at which point the defendant turned right from the right lane across the double lines, and the collision occurred. The defendant’s right indicators were operating at the time of the collision. For how long they had been operating prior to the collision, is a matter of dispute.
Supportive of the plaintiff’s version, is Mr Le Serf’s evidence that when he arrived at the scene, 20% (the back left corner) of the caravan was in the leftmost of the westbound lanes. Notwithstanding Mr Le Serf’s friendly contact with the plaintiff at earlier points in the plaintiff’s trip, Mr Le Serf was the most independent of the four witnesses called in this trial. That said, I do not accept all of Mr Le Serf’s evidence. The evidence of the defendant and his wife, and the plaintiff’s lack of recollection of the motorcycle landing on him, leads me to the conclusion that Mr Le Serf was probably wrong when he gave evidence of a recollection of moving the motorcycle off the plaintiff after the accident. This suggests that Mr Le Serf’s evidence needs some scrutiny before being acted upon. While I accept Mr Le Serf’s evidence that some portion of the back left hand corner of the caravan was in the left hand lane when he arrived at the scene, I do not necessarily accept that it was as much as 20% of the caravan.
Counsel for both parties put various competing submissions as to why their client’s versions should be accepted. For the plaintiff it was submitted that if what the defendant said was right, then the left lane was clear and the plaintiff would have overtaken on the left hand side without any risk to himself. Why, it was submitted, would the plaintiff overtake on the wrong side of double white lines on an uphill blind corner, when there was space to pass in the left lane, if the defendant’s version was to be accepted.
For the defendant it was submitted that the plaintiff’s version must be wrong because immediately prior to the collision, the plaintiff would have been travelling at approximately five times the speed of the defendant’s vehicle, and would have had ample opportunity to “just whip around” the defendant’s vehicle if it came from the left hand to right hand lane of the westbound carriageway.
As might be expected, both parties’ counsel made good points in relation to why the version put by their opponent should not be accepted. While each party’s version has the defendant either in the left hand lane or the right hand lane, I raised with counsel the question of whether it was open to me to find that in fact the defendant may have been partly in both lanes before he commenced his turn. While neither counsel sought to advance this case, both counsel agreed that it would be open on the whole of the evidence for me to so conclude.
A feature of this case is that the accident occurred on a relatively remote stretch of highway in Western Australia. There were no other vehicles that had any involvement in the accident. The possibility of oncoming vehicles, which might loom larger on busier highways, may not have loomed large to the parties at the point where this accident occurred. The same may be said for the possibility of vehicles travelling in the same direction and approaching the parties from behind. Thus, submissions as to why the defendant (who was travelling slowly uphill, towing a caravan) might not want to go into the right lane earlier than necessary, or submissions as to why the plaintiff may not have wanted to run a risk with oncoming traffic, may be all well and good as a matter or ordinary theory, but may not have been seen by the parties as matters of great concern at the particular time and point of this accident.
Central to the evidence of the defendant and his wife is the proposition that they were in the left lane some distance back from the lookout, they were aware of the lookout, and the defendant moved into the right hand lane (again, some distance from the lookout road). I accept that at this time, the defendant looked in his mirror and indicated, before moving into the right hand lane. Having moved into the right hand lane, the probability is that the defendant turned off his indicator. So much is consistent with his evidence that he only had his right hand blinker on for “most of the time” he was in the right lane or for “50 metres of it”.
The caravan the defendant was towing is wider than the vehicle he was driving. It seems to me probable that while the defendant moved into the right lane, there was no great precision about this. In my view, it is likely that the left hand side of the caravan remained partly in the left lane, and partially obstructed any vehicle that might have wanted to overtake the defendant on the left hand side. This conclusion is consistent with Mr Le Serf’s evidence that when he arrived at the accident scene, the back left corner of the caravan was in the left lane.
The defendant and his wife then observed the second lookout sign and lookout road. In the words of the defendant’s wife, “I spotted it and I said, ‘[t]here it is there’ … we were practically at a standstill we were so slow, and I noticed my husband look in the rear view mirror, the mirror at the side and start to turn”. While Mrs Antony may have seen her husband’s head turn to the right, the defendant conceded that he did not look in his mirror before commencing to turn. In the circumstances, it is more likely that the defendant turned his head to look at the road he was about to turn into, rather than into a mirror. In the circumstances, it also seems likely to me that the defendant activated his indicators at about the same time he commenced to turn. This was insufficient to give any real warning to the plaintiff having regard to the speed at which the plaintiff was then travelling.
At the same time the defendant was commencing to turn, the plaintiff was approaching the front of the defendant’s vehicle on the right hand side, attempting to overtake. Whether the plaintiff was on the double white lines, or marginally to the left of them (lane splitting), or over the double white lines, when he observed the defendant turn right in front of him, he was forced to move to the right, and the collision occurred somewhere in the eastbound lane.
From the marks to the north of the single line marking the northern edge of the eastbound lane, I might infer that the collision occurred somewhere in the northern half of the eastbound lane. In truth, it is not necessary to go so far. There can be no doubt that the marks were caused by the motorcycle coming into contact with the roadway. Indeed, the trial was conducted on that basis. The question arises as to whether that is the point of impact, or whether the motorcycle was thrown sideways to the north after the collision. In the end, all that I am able to conclude safely as a probability is that the collision occurred somewhere in the centre of the eastbound lane.
While a significant part of the trial was taken up testing witnesses about the precise location of the impact and the position of the front of the defendant’s vehicle for the 20 or so minutes after the accident (on the basis that one or other position was improbable because it would or would not have permitted other vehicles free passage down the road, and/or other collisions might have ensued), the evidence is not substantial enough to enable me to accept or reject any of the particular hypotheses advanced. Notwithstanding the attempts at precision, it seems to me that one can do no better than say that the impact probably occurred at or about the centre of the eastbound lane.
As I have said above, I accept the evidence of the defendant and his wife that they moved from the left lane into the right lane some time before the collision (albeit with the caravan protruding to some extent in the left lane). I am fortified in this view by two further matters. First, if the defendant had begun his turn from the left lane as suggested by the plaintiff, then in my view there would have been insufficient time for him to have travelled across the right lane and into the eastbound lane to collide with the plaintiff, having regard to the respective speeds of both vehicles. The plaintiff’s vehicle was travelling at four or five times (at the very least three, and perhaps, on another view, even in excess of five) the speed of the defendant’s vehicle. If the defendant had cut across from the left lane forcing the plaintiff across into the eastbound lane, the plaintiff would have arrived at (and passed) the point of collision before the front of the defendant’s vehicle crossed the double white lines. That is, the collision would not have occurred.
Secondly, the fact that the defendant did not look in his mirrors before commencing to turn (as he put it, because he was on double white lines) makes it more likely the defendant was much closer to the double white lines than the plaintiff would suggest. If, as plaintiff’s counsel submitted, the defendant would have wanted to stay in the left lane for as long as possible (for fear of the speed of vehicles coming from behind that might be in that lane) then it would be more than surprising if, having exercised such caution, the defendant then turned right from the left lane without checking his mirrors for any such traffic that might have been approaching from behind.
The relevant statutory provisions
Section 5A(1) of the Civil Liability Act 2002 (WA) relevantly provides that, subject to s 3A, Part 1A of the Civil Liability Act applies “to any claim for damages for harm caused by the fault of a person”. Section 3A makes inapplicable some provisions of the Civil Liability Act in respect of certain types of claims. Specifically, Parts 1C, 1E and 2 (other than s 10A and Division 4) of the Civil Liability Act are made inapplicable to claims for damages to which the Motor Vehicle (Third Party Insurance) Act 1943 (WA) applies.
This proceeding is a proceeding to which the Motor Vehicle (Third Party Insurance) Act applies.[7] Sections 5B, 5C, 5D and 5K of the Civil Liability Act are contained in Part 1A of that Act. It follows that ss 5B, 5C, 5D and 5K of the Civil Liability Act have application in this case.
[7]See s 3A of the Motor Vehicle (Third Party Insurance) Act.
Section 5B of the Civil Liability Act provides:
“5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b)the risk was not insignificant, and
(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a)the probability that the harm would occur if care were not taken,
(b)the likely seriousness of the harm,
(c)the burden of taking precautions to avoid the risk of harm,
(d)the social utility of the activity that creates the risk of harm.”
Sections 5C and 5D deal with causation. Section 5C provides:
“5C. General principles
(1)A determination that the fault of a person (the tortfeasor ) caused particular harm comprises the following elements —
(a)that the fault was a necessary condition of the occurrence of the harm ( factual causation ); and
(b)that it is appropriate for the scope of the tortfeasor’s liability to extend to the harm so caused ( scope of liability ).
(2)In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) —
(a)whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and
(b)whether and why the harm should be left to lie where it fell.
(3)If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person ) would have done if the tortfeasor had not been at fault —
(a)subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and
(b)evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.
(4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor.”
Section 5D provides:
“5D. Onus of proof
In determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”
In Adeels Palace Pty Ltd v Moubarak,[8] the High Court had to consider the operation of s 5D of the Civil Liability Act 2002 (NSW). Section 5D of the Civil Liability Act (NSW) is the New South Wales equivalent (save for some differences which are not relevant so far as this proceeding is concerned) of s 5C of the Civil Liability Act (WA). The Court said:
“[42] Section 5D(1) of that Act divides the determination of whether negligence caused particular harm into two elements: factual causation and scope of liability.
[43] Dividing the issue of causation in this way expresses the relevant questions in a way that may differ from what was said by Mason CJ, in March v E & M H Stramare Pty Ltd,[9] to be the common law’s approach to causation. The references[10] in March to causation being ‘ultimately a matter of common sense’ were evidently intended to disapprove the proposition ‘that value judgment has, or should have, no part to play in resolving causation as an issue of fact’. By contrast, s 5D(1) treats factual causation and scope of liability as separate and distinct issues.
[44] It is not necessary to examine whether or to what extent the approach to causation described in March might lead to a conclusion about factual causation different from the conclusion that should be reached by applying s 5D(1). It is sufficient to observe that, in cases where the Civil Liability Act or equivalent statutes are engaged, it is the applicable statutory provision that must be applied.
[45] Next it is necessary to observe that the first of the two elements identified in s 5D(1) (factual causation) is determined by the ‘but for’ test: but for the negligent act or omission, would the harm have occurred?[11]
[8](2009) 239 CLR 420.
[9]March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 (March).
[10]March at CLR 515; ALR 430; quoting from Fitzgerald v Penn (1954) 91 CLR 268 at 277; [1955] ALR 1 at 6; [1954] HCA 74.
[11]Footnotes in original.
In Adeels Palace, the Court concluded that factual causation was not made out. While there was a discussion about the operation of s 5D(2), the Court was not called upon to consider the provisions in s 5D dealing with the scope of liability. However, as with s 5D(1) of the NSW Act, s 5C(1) of the Civil Liability Act (WA) (factual causation) is determined by the “but for” test.
Section 5K deals with contributory negligence. It provides:
“5K. Standard of contributory negligence
(1)The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2)For that purpose —
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time.”
In pre-trial communications with the Court, the parties also gave notice of their intended reliance upon various provisions of the Road Traffic Act 1974 (WA) and the Road Traffic Code 2000 (WA). The plaintiff foreshadowed reliance upon s 62 of the Road Traffic Act and regulations 35 and 36 of the Road Traffic Code. The defendant foreshadowed reliance upon ss 60, 61 and 62 of the Road Traffic Act and regulations 122 and 124 of the Road Traffic Code. During the course of argument, additional regulations were referred to, such as, for example, regulation 116.[12] However, in the end, and because of the way the argument proceeded, it is not necessary to set out all of these provisions. It is sufficient to say that in reaching the conclusions I have reached, I have had regard to them.
[12]See further, regulations 24, 26, 27, 30, 31, 32, 71 and 72 of the Road Traffic Code, many of which were referred to for the purpose of determining the meaning of the word “permissible” in regulation 116 – although in the end this point faded away when the plaintiff abandoned any suggestion that the defendant’s right turn was not “permissible” within the meaning of regulation 116 (regulation 116 containing an exception to the prohibition on crossing double white lines, the exception being the crossing of them for the purpose of making a right turn “where permissible”).
Breach of duty and causation
As might be expected, the defendant did not contest the proposition that he owed the plaintiff a duty of care. The central issue in this case was whether the defendant breached that duty of care. In all the circumstances, I have concluded that he did.[13] The defendant executed a right hand turn from a position on the roadway where part of the caravan he was towing was, as I have found, over or in the left hand lane. This turn was not executed from as near as practicable to the double continuous white lines. Further, while the defendant’s indicators were operating at the time of the turn, they were not operated with sufficient time so as to warn anyone travelling behind the defendant or, more particularly, the plaintiff. Additionally, the defendant did not check his mirrors for the presence of another vehicle before commencing the turn.
[13]See s 5B of the Civil Liability Act.
While the defendant’s answer to not looking in his mirrors at the time of the turn (he having looked when he moved from the left lane to the right lane earlier) was that “[w]e were on double lines”, in my view it was incumbent on the defendant to look in any event – and particularly having regard to the fact that the turn was made from the left of where it should have been made and without appropriate indication. Further, the presence of double white lines does not obviate the need for a driver to keep a proper lookout for vehicles with which he or she might potentially collide, when changing position on the roadway.
While the defendant did not seek to contest the issue of causation, in the event that I found a breach of duty had been established, I should say for the sake of completeness that the defendant’s negligence was a cause of the plaintiff’s injuries. But for the defendant’s driving as I have described it, the accident would not have occurred.[14]
[14]See ss 5C and 5D of the Civil Liability Act.
Contributory negligence
Applying s 5K of the Civil Liability Act, which provision also picks up ss 5B, 5C and 5D so far as the acts or omissions of the plaintiff are concerned, in my view the defendant has established that there was contributory negligence on the part of the plaintiff, and that this contributory negligence was also a cause of the accident.[15]
[15]See s 4(1) of the Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA).
In overtaking the defendant’s vehicle (which was primarily in the right hand lane), the plaintiff was either lane splitting with the defendant, travelling on the double white lines or travelling on the wrong side of the double white lines. This was a dangerous activity, and must have been known to the plaintiff to be such. Again, but for this contributory negligence on the part of the plaintiff, the accident would not have occurred.
Assessing the contributory negligence
Assessing the plaintiff’s contributory negligence requires a comparison between the relative departures by each party of the standard of care required of them and a comparison of the causal significance of each party’s negligent acts or omissions.[16] Taking the matters into account which I have already discussed, in my view, the plaintiff’s contributory negligence should be assessed at 60%. There is not much to differentiate the causal significance of each party’s negligence.
[16]Ibid. See further, Pennington v Norris (1956) 96 CLR 10, 16 and Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529, 532-3.
However, in my view, in driving in the manner I have described, the plaintiff’s departure from the standard of care required was, in relative terms, significantly greater than that of the defendant. For the purposes of assessing contributory negligence, I do not think it matters whether the plaintiff was just to the left of the double white lines, on them, or just to the right of them. His driving in this area was equally dangerous in the circumstances where the defendant was predominantly in the right lane and moving slowly.
While one cannot be mathematically precise about an assessment of contributory negligence, I reflect the conclusion I have reached about each party’s extent of his departure from the standard expected by apportioning responsibility such that the plaintiff’s contribution is 50% more than the defendant’s contribution (60% being 50% more than 40%). In my view, this assessment properly reflects the relative departures from the standard of care required of each party.
Conclusion
There will be judgment for the plaintiff in the sum of $309,992. I will hear the parties on any question of costs.
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