Zaffino v Thomasson - [2001] WADC 293

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ZAFFINO -v- THOMASSON [2001] WADC 293

CORAM: BLAXELL DCJ

HEARD: 23 NOVEMBER 2001

DELIVERED : Delivered Extemporaneously on 23 NOVEMBER 2001 typed from tape and edited by Trial Judge

FILE NO/S: CIV 2708 of 2000

BETWEEN: MARIO FRANK ZAFFINO
Plaintiff
AND
SHAUN GREGORY THOMASSON
Defendant

Catchwords:

Negligence - Road accident cases - Collision between two vehicles at uncontrolled junction - Apportionment of liability - Turns on own facts

Legislation:

Nil

Result:

Apportionment 85 per cent/15 per cent in favour of the plaintiff

Representation:

Counsel:

Plaintiff: Mr J C Curthoys
Defendant: Mr L Edmonds

Solicitors:

Plaintiff: Ilbery Barblett
Defendant: Chapmans

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

Nil

Case(s) also cited:

Gardiner v Gardiner, unreported; DCt of WA; Library No 4205; 27 October 1994
Haven v State Government Insurance Commission, unreported; DCt of WA; Library No 4993; 25 July 1996
Hislop v Sloan, unreported; DCt of WA; Library No 4646; 12 October 1995
Sibley v Kais (1967) 118 CLR 424
Welch v Surtees, unreported; Fct SCt of WA; Library No 980626S; 29 October 1998

BLAXELL DCJ: The claim and counterclaim in this action arise from a motor vehicle accident on 27 October 1998 in which both the plaintiff and defendant were injured. The accident occurred at the junction of Warton Road with Discovery Drive in Thornlie. Warton Road in that vicinity is a relatively major thoroughfare with two carriageways each having two lanes. At the point where the accident occurred there is also a lefthand slip lane which allows a driver travelling in the same direction as the plaintiff to turn left into Discovery Drive.
Discovery Drive can be fairly described as more than a mere side road and it is obviously a point of access onto Warton Road for vehicles coming from a significant number of houses to the north‑west of that thoroughfare. Somewhat surprisingly, the junction was uncontrolled by any stop sign or give‑way sign at the date of the accident. Nevertheless, Discovery Drive was the terminating road at the junction, and it follows that the defendant was under an obligation to give right of way to vehicles travelling along Warton Road.
There is one further aspect of the geography of the junction that needs to be specially mentioned: The house on the south‑west corner of the junction had a high brick wall which had the effect of obscuring the view that the plaintiff and the defendant had of each other's vehicles as they approached the scene of the accident.
The accident occurred at approximately 1.15 am at a time when there was very little other traffic in the vicinity. The plaintiff was driving north‑east along Warton Road and the defendant was travelling south‑east along Discovery Drive, intending to turn right into Warton Road.
The defendant, as a result of injuries that he received, does not have any recollection of what occurred immediately prior to the collision. However, it was a regular route of travel for him and he has testified as to the manner in which he customarily negotiated the junction. Accordingly his evidence is based almost entirely upon his usual manner of driving rather than any distinct recollection of what occurred on the particular occasion. The plaintiff, on the other hand, has been able to give a relatively detailed account as to how the accident occurred, and I have no hesitation in accepting him as a truthful witness in that regard.
There is an issue as to the speed at which the plaintiff was driving. He says he was travelling at 60 kph but he is alleged to have made an admission contrary to this when speaking to the defendant's mother at Royal Perth Hospital a day or two after the accident. Mrs Thomasson appeared to me to be a sincere and genuine witness and I accept her evidence that the plaintiff said words to the effect that "he was in a hurry to get out of the area because a police chase was on".
However, in my view, Mrs Thomasson misinterpreted this comment by the plaintiff in that she thought he was referring to his manner of driving prior to the collision. I find that in fact he was referring to an incident which coincidentally occurred very soon after the accident. In this regard, I accept Constable Ryan's evidence that he was called to attend the accident at 1.17 am. It was some eight minutes later that another call came over the police radio to advise that an unrelated police pursuit had commenced in the area nearby. The evidence indicates that this pursuit approached very close to the accident scene.
In these circumstances, it would be understandable that the plaintiff might have later commented that he had been in a hurry to get out of the area (and by that referring to getting out of the area after the accident). I am accordingly satisfied that the plaintiff was driving his vehicle at approximately 60 kph immediately prior to the collision. There is no evidence to establish the defendant's speed, but what is clear is that he entered the junction without pause and failed to give right of way to the plaintiff's vehicle.
I accept the plaintiff's evidence that because of the brick wall he did not see the defendant's vehicle until he was 20m or 30m from the point of impact. This means that at a speed of 60 kph he had less than two seconds and, more likely, approximately 1.5 seconds in which to react and do something to avoid what occurred. He did in fact try to apply his brakes but by that stage it was too late to avoid the inevitable impact.
A further matter of significance is that the defendant was later found to have a blood alcohol content of 0.128 per cent at the time of the accident. I accept Dr Pocock's evidence that this quantity of alcohol is likely to have significantly impaired the defendant's ability to control his vehicle and to have affected his reaction time and coordination. It is a fair inference that these effects of the defendant's intoxication were the prime cause of the accident.
Those are the facts on which I must base my findings as to negligence. On behalf of the defendant, it is conceded that he was negligent and that his negligence was the substantial cause of the accident. The real issue for me to determine is whether the plaintiff was also negligent.
In this regard, the particulars of negligence pleaded in the defence and counterclaim allege that the plaintiff:
"(a)drove at an excessive speed in the circumstances;
(b)failed to keep any or any proper lookout for the defendant's vehicle;
(c)failed to stop, steer or swerve his vehicle so as to avoid colliding with the defendant's vehicle;
(d)failed to keep his vehicle under any or any proper control; and
(e)failed to apply the brakes of his vehicle sufficiently or at all."
In my view, there is nothing in the evidence to indicate that the plaintiff drove in any way inappropriately from the moment that he saw the defendant's vehicle. He did all that he reasonably could do in the circumstances but the collision was inevitable. The essential question is whether he failed to exercise reasonable care in the manner and speed at which he approached the junction prior to seeing the defendant's vehicle.
It is difficult to be critical of a driver who is travelling along a major thoroughfare at 60 kph and approaching or passing junctions or intersections at which he knows he has a right of way. At most junctions and intersections, such a driver would have a reasonable view of intersecting vehicles before there is any risk of impact and therefore be in a position to keep an eye on them to ensure that they are conceding right of way. In this particular instance, it was not possible for the plaintiff to be aware of the defendant's approaching vehicle or to be aware that the latter was failing to give right of way until it was too late. The reason for this was, of course, the high brick wall at the house on the corner between the two vehicles.
I consider that if the plaintiff was keeping a proper lookout he was, or should have been, aware that his view of any vehicle approaching along Discovery Drive was obstructed. The exercise of reasonable care in those circumstances would necessitate that he keep a careful eye on the obstruction and be ready to take evasive action, such as changing lanes, in the event that another vehicle suddenly appeared and entered into the junction. If necessary, a reasonable driver would also drop his speed to a touch less than 60 kph until he had a clear view up the other road at the junction.
The evidence satisfies me that the plaintiff failed to exercise this degree of care and, while it is easy to be critical in hindsight, I find that in this way he was negligent. It was, nevertheless, negligence of a relatively minor degree. When comparing the relative degrees of negligence of the parties, it is clear that the defendant was much more culpable; not only did he enter the junction without pausing or giving right of way, but he was driving his vehicle while significantly affected by alcohol.
In my view, a fair apportionment of liability in all of the circumstances is 85 per cent/15 per cent in favour of the plaintiff. Accordingly, I find that the plaintiff is entitled to 85 per cent of his damages and the defendant is entitled to 15 per cent of his damages.