Derrick Alan Jones v Stephen Robert Hyde [1986] ACTSC 108 (2 December 1986)

SUPREME COURT OF THE ACT

DERRICK ALAN JONES v. STEPHEN ROBERT HYDE
S.C. No. 1791 of 1983
Motor Vehicle Accident

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Motor Vehicle Accident - Whether contributory negligence - Assessment of damages - No new question of principle involved.

HEARING

CANBERRA
2:12:1986

ORDER

There be judgment for the plaintiff in the sum of $56,382.38.

The defendant pay the plaintiff's costs of and incidental to the action.

There be a stay of judgment of 21 days.

DECISION

The plaintiff claims damages for injuries which he sustained on 7 July 1982 when the motorcycle which he was riding collided with the rear of a car driven by the defendant. The plaintiff alleges that the collision was caused by the negligence of the defendant. Particulars of the alleged negligence are set out in the statement of claim but those of particular importance are as follows:-

(a) Failing to keep any sufficient lookout;

(b) Failing to make a left hand turn with safety;

(c) Failing to indicate his intention to make a left
hand turn; and

(d) Failing to comply with the provisions of the Motor
Traffic Ordinance 1936.

2. The relevant provisions of the Ordinance are as follows:-

"136.(2) The driver of a motor vehicle upon a
public street is guilty of an offence if -

(a) . . .

(b) he causes the motor vehicle to reduce
speed suddenly, whether for the purpose
of stopping or otherwise, unless he has
given, in accordance with this section,
a signal that is a prescribed signal for
the purposes of this sub-section."

(Sub-section 136(3) prescribes that the relevant signal for the purpose of sub-section (2) is the display of a red light that is visible from the rear in direct sunlight at a distance of not less than 60 metres.)

"(7) The driver of a motor vehicle to which
this sub-section applies is guilty of an
offence if he causes the motor vehicle to
turn to, or move towards, his left unless he
has given, in accordance with this section,
the signal prescribed for the purposes of
this sub-section.

(9) For the purposes of sub-sections (7) and

(8) -

(a) a motor vehicle is a motor vehicle to
which each of those sub-sections apply
if the motor vehicle is equipped with a
signalling device that, when operated,
illuminates -

(i) a flashing light on the left hand
side of the motor vehicle; or

(ii) flashing lights on the left hand
side of both the front and the rear of
the vehicle; and

(b) the prescribed signal is the
illumination of that light or those
lights, as the case requires.

(10) A signal that is a prescribed signal for
the purposes of sub-section (2), sub-section

(4) or sub-section (7) shall be given -

(a) at least 30 metres before the vehicle
stops, commences suddenly to reduce
speed or commences to turn to, or move
towards, the right or left, as the case
may be; or

(b) if, in all the circumstances, it is not
practicable to give the signal at least
30 metres before that event takes place,
as soon as it was practicable to do so,
and shall continue to be given until the
event takes place."

3. The plaintiff gave evidence that at about 12.30p.m. on 7 July 1982 he left his place of employment, the premises of J.B. Young Limited in Gladstone Street, Fyshwick, to go to a snack bar some distance away. Leaving the premises, riding his motorcycle, he turned east and rode along Gladstone Street. He was followed a short distance behind by a friend known as Paddy Tatiyakorn. A red Falcon sedan was being driven by the defendant in the same direction along Gladstone Street but in front of the plaintiff. It had passed him as he waited at the entrance onto the roadway from his employer's driveway. When he first got onto the roadway of Gladstone Street he was about 100 yards behind the car. Some distance east of the premises of J.B. Young Limited on the southern side of Gladstone Street there was a shop described as Dick Smith's Electrical Store. Nearing this store the defendant moved, so the plaintiff said, a couple of feet to the right in the lane in which he was travelling at about 15 kilometres per hour. At that point the plaintiff was travelling, he said, at about 30 kilometres per hour. He said that he saw no braking lights on the defendant's vehicle nor any hand signal.

4. To the south of Gladstone Street opposite the area where the defendant veered right there was a parking lot outside Dick Smith's Store and on the opposite side of the road was a similar parking lot.

5. Having turned to the right as he did the defendant then turned left to enter the parking area on the northern side of the street. Estimates of the angle at which he approached the northern parking area vary but I am satisfied that he approached it at an angle of the order of 30 degrees. The plaintiff, seeing the defendant turn right, moved to his left but when the defendant crossed his path as he did when he turned left the plaintiff was unable to avoid colliding with the rear of the defendant's motor vehicle at a point just to the right of the towbar. At the collision the plaintiff was thrown over the rear right corner of the defendant's vehicle and sustained the injuries complained of.

6. The defendant insisted in evidence that at all times when he turned left he had his left indicator on. He did not indicate that he was turning right having regard to the relatively slight distance he proposed to turn. It is common ground that he did turn slightly to the right before veering left to the northern parking area and this satisfies me that the plaintiff was in fact keeping a proper lookout.

7. In answer to an interrogatory the plaintiff said that he applied his brakes approximately 15 metres from the point of collision. By applying the brakes he reduced his speed from 60 kilometres to 30 kilometres per hour.

8. I allow for the discrepancies which generally attend estimates of distances in circumstances such as these.

9. I am satisfied that the collision took place when the front of the defendant's vehicle was almost at the gutter on the northern side of Gladstone Street. Bearing in mind the angle at which it was travelling at that time it must have blocked the whole of the northern quarter of the roadway. It was generally accepted during the course of the hearing that the roadway was the equivalent of four lanes wide although not divided by any markings.

10. I am satisfied that the defendant did not apply his brakes at or immediately before the point where he turned to the right. This is consistent with the physical circumstances and with the evidence of the plaintiff and Mr Tatiyakorn who was in a position where he had an unobstructed view of what happened. He was travelling behind the plaintiff. It is significant that the plaintiff, in an answer to an interrogatory made by him and tendered against him by the defendant, said that at all distances from 50 metres to 5 metres before the point at which the collision occurred the speed of the defendant's vehicle did not vary. At all those times he was travelling at approximately 15 kilometres per hour. The distance between the driveway of J.B. Young Limited and the point of impact was variously estimated but the greatest estimate was 300 metres. Allowing for the fact that the plaintiff had to come onto the roadway from the driveway after the defendant's car had passed him travelling east it would have taken him a little time to catch up even though the defendant was slowing down. It seems plain on the evidence generally that the defendant travelled the last 50 metres or so before the collision without slowing down. It follows logically enough that he did not during those last 50 metres or so apply his brakes and this lends support to the plaintiff's and Mr Tatiyakorn's evidence that he did not show braking lights. As I have already said, I accept that the plaintiff was keeping a proper lookout and it would have been impossible in the circumstances for him to have failed to see at the distance he was travelling behind the defendant a left hand indicator in operation.

11. Accepting the plaintiff as I do, I am satisfied that the defendant was negligent in turning as he did. When he turned to the right he gave no signal and would inevitably have led a person following behind as the plaintiff was to expect that he would continue the turn. His immediate veering to the left placed the plaintiff in an impossible position for he could not then avoid the collision.

12. Although I think that the plaintiff was travelling close to the defendant's vehicle in front of him, I do not think he was negligent in doing this at least to the point where the defendant turned to the right. There was nothing to suggest that he could not have passed the defendant on the left in safety. Indeed, the evidence does not establish that he was travelling directly behind the defendant. The defendant gave evidence that he was travelling on the left hand side of the road, close to the gutter, but in an answer to an interrogatory numbered 1(d)(1) tendered against him he indicated by a sketch that his vehicle was in fact very close to the centre of the road before it turned to the right.

13. I think that the defendant was negligent and that there was no contributory negligence on the part of the plaintiff. There must accordingly be judgment for the plaintiff.

14. There is one odd feature to the case and that is a statement apparently made by the plaintiff after the collision when he requested that the police be not called but nothing was sought to be made of this in the course of counsel's address on behalf of the defendant and I am not satisfied that it constituted an admission of negligence by the plaintiff.

15. The plaintiff's damages are well documented in the medical reports made by Dr Stubbs, his treating orthopaedic surgeon, and by Dr Corry, a specialist in rehabilitation medicine. He put his case, as I thought, moderately and fairly and no challenge was made to any of the claims he made in respect of the pain which he suffered as a result of his injuries he sustained in the accident and his loss of enjoyment of life. I note particularly that he is no longer able to engage in vigorous sports and activities in which he formerly engaged, abseiling, squash and touch football and in membership of the State Emergency Service. I accept the accuracy of the medical reports and in particular Dr Stubbs' assessment that he has lost 15% of the efficient use of the left lower limb, 10% loss of the efficient use of right knee and 10% loss of the efficient use of the left hand. He must put up with this loss for a long time. He is not quite 26 years old.

16. I note that there is no claim for loss of future earning capacity and that the loss of further time off work is unlikely. For general damages I think the proper amount to award is $35,000. Out-of-pocket expenses are agreed at $5,452.50, past wage losses are agreed at $7,262.21. The Fox v. Wood component is agreed at $1,000. For the cost of a future operation at an uncertain date I fix an amount of $1,500. I award interest on a sum of $20,000 averaged since the accident at 7 per cent in a total of $6,167, and some cents.

17. There will be judgment for the plaintiff in an amount of $56,382.38. I order that the defendant pay the plaintiff's costs of and incidental to the action. I grant a stay of judgment of 21 days.