Brett Michael O'Neill v Raelene Gai Clarke [1988] ACTSC 20 (15 April 1988)

SUPREME COURT OF THE ACT

BRETT MICHAEL O'NEILL v. RAELENE GAI CLARKE
S.C. No. 1043 of 1986
Negligence - Evidence

COURT

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

CATCHWORDS

Negligence - claim for damages for personal injuries - motor vehicle accident - whether defendant changed lanes when it was unsafe to do so - no new matter of principle.

Evidence - credibility of plaintiff as witness - no new matter of principle.

HEARING

CANBERRA
15:4:1988

ORDER

There be judgment for the defendant.

The plaintiff pay the defendant's costs.

DECISION

This is an action for damages for personal injuries arising out of the alleged negligent driving of a motor vehicle on the part of the defendant. The incident occurred on 9 March 1986 when the plaintiff was driving a Ford Cortina sedan along the northbound carriageway of Kingsford Smith Drive, Higgins. It was about 6 o'clock on a fine Sunday evening. The plaintiff was driving at some distance behind the Mazda utility being driven by the defendant. The exact distance is a matter of contention. The plaintiff alleges that the defendant without warning commenced to move from the left-hand lane into the right-hand lane, that is to say, the lane nearer the median strip, where the defendant was driving. This, so the plaintiff alleges, caused him to veer to the right in order to avoid a collision, forcing his vehicle, or part of it, onto the median strip. The plaintiff says that as he drove with two off-side wheels on the median strip and two wheels still on the road in the vicinity of the kerb, the front passenger side wheels struck a drain causing him to lose control of the vehicle, whereby the vehicle careered to the left-hand side of the road and collided with a tree on the nature strip.

2. The particulars of negligence alleged by the plaintiff were as follows:

(i) Changing lanes when it was unsafe so to do.

(ii) Failure to keep any or any proper lookout.

(iii) Driving at an excessive speed.

(iv) Failure properly so to control the vehicle she
was driving as to avoid causing a collision.

(v) Failure to swerve or brake quickly enough or to
take other evasive action to avoid causing a
collision.

3. There was no evidence to support particulars (iii), (iv) and (v), whilst particular (ii) was not made out on the evidence. That left only particular (i) in which to base the plaintiff's case. No application to amend the particulars was made. Counsel for the defendant fore-shadowed that he would oppose any application to amend.

4. It is to be observed that the plaintiff's case was so circumscribed by these particulars and the conduct of the case at the hearing that it left no room for any argument that the defendant was negligent in signalling by means of the traffic indicators on her vehicle that she intended to move into the right-hand lane, and thus, by means of the signal alone, causing the plaintiff to take reasonable evasive action, which action led to his injury. It is essential to the plaintiff's case that he prove that the defendant moved into the right-hand lane.

5. The case presented on behalf of the defendant, through her own evidence and that of a passenger travelling in the same vehicle, was that at no time did her vehicle move into the second lane. The case then stands or falls on whether I accept the plaintiff's evidence or whether I accept the evidence of the defendant and her witness on this issue.

6. The plaintiff's evidence was that he was travelling north along Kingsford Smith Drive at a speed of about ninety kilometres per hour. He was proceeding towards the intersection with O'Loghlen Street, which forms the leg of a T-intersection on the western side of the intersection. He said that he had about two hundred metres of clear vision towards the intersection. He said that when he was about ninety metres from the intersection he saw a light blue vehicle entering Kingsford Smith Drive from O'Loghlen Street. He said that it proceeded for about sixty metres in Kingsford Smith Drive in the left-hand lane. At that stage he noticed the vehicle start to move into the lane in which he was proceeding. He then swerved to avoid contact with it and the vehicle proceeded as I have already described. In his evidence-in-chief he did not describe with any precision the relative positions of the two vehicles immediately prior to his noticing the other vehicle moving into his lane, but in cross-examination he said that "I did not pass it at all", that whilst the other vehicle remained within his vision "it was next to me", and that he could see it in the corner of his eye immediately before he left the road and could still see it until he lost control after colliding with the drain.

7. The defendant's evidence was that she was driving a utility which was brown in colour, without blue or silver on it at all. She said that the utility had been recently purchased by her fiance who was with her in the cabin. She said that it was a diesel fuelled vehicle and slow to pick up speed. She said that she stopped at the intersection of O'Loghlen Street and Kingsford Smith Drive and looked up to her right where she had a clear vision of some four to five hundred metres. She saw no other vehicle and proceeded into Kingsford Smith Drive. She said that she proceeded north in Kingsford Smith Drive in the left-hand lane and changed into second gear. At that stage her fiance told her to move into the right-hand lane because she had to turn right at traffic lights. The traffic lights were about four hundred metres ahead. She engaged the right-hand traffic indicator and looked in the interior rear-vision mirror almost simultaneously. She said that she saw a vehicle in the same lane, that is to say, the left-hand lane in Kingsford Smith Drive, about three hundred metres behind. She continued still in the left-hand lane and changed to third gear, proceeding at an approximate speed of sixty kilometres per hour for about two seconds. She then looked into the external rear-vision mirror on the driver's side and noticed the same vehicle, an orange car, "now in the right-hand lane nearly at the back of the truck". She then disengaged the right-hand turning indicator. The front of the other vehicle was about one foot from the rear of the tray of the utility. The offside wheels of the defendant's vehicle were about six inches from the broken line separating the two lanes. The defendant then noticed the other vehicle move partly onto the median strip and pass the defendant's vehicle. It then veered left back onto the roadway, and when about thirty metres in front of the defendant's vehicle, appeared to go out of control and proceed across the left-hand side of the road striking the tree on the nature strip. The defendant said as the plaintiff's vehicle passed her vehicle she pulled over to the left to a position where the nearside of her vehicle was only about a foot from the gutter on the western side of the road.

8. The defendant's passenger and then fiance gave evidence which was very similar to that of the defendant and I do not propose to set it out in detail. He estimated that at the time the plaintiff's vehicle collided with the tree, the vehicle driven by the defendant had reached the speed of about seventy-five kilometres per hour. He also said that when he suggested to the defendant that she move into the right-hand lane, the utility was about twenty metres north of the intersection with O'Loghlen Street.

9. In demeanour and presentation the defendant was an impressive witness, substantially more so than the plaintiff. Although I approached the evidence of the defendant's witness with some initial scepticism, upon due consideration, I see no reason to reject his evidence and ultimately I consider that it strengthens that of the defendant. Apart from impressions gained from observations in the witness box and confirmed after reading the transcript of evidence, I have come to the conclusion that there are several unsatisfactory features of the plaintiff's evidence which lead to a preference for the evidence of the defendant and her witness.

10. The plaintiff said that he was travelling at approximately ninety kilometres per hour. At no stage did he take any step to reduce that speed until it was virtually too late. Indeed his speed may have been higher, because I find his evidence that he checked the speedometer unconvincing. The speed limit was eighty kilometres per hour. The plaintiff also said that he made a practice of driving in the right-hand lane. Again his reasons for doing so were unconvincing insofar as they were based upon alleged reasons of safety. I think it more likely that he drove in the right-hand lane because he liked to drive fast. The plaintiff said that he had only two hundred metres or so of clear vision when approaching the intersection with O'Loghlen Street. The defendant and her witness said there was unimpeded vision of about four to five hundred metres southward from the intersection. The photographs tend to confirm this, although I would think that the distance is closer to four hundred metres than five hundred metres, and possibly less. It is certainly a good deal more than two hundred metres. I accept the evidence in the defence case of the colour of the utility. The plaintiff was clearly wrong in this regard, and this tends to suggest a failure to keep a proper lookout on his part. Although I make no positive finding that the nearside wheel or wheels of the plaintiff's vehicle did not hit a drain, causing him to lose control, I think that the plaintiff's evidence on this aspect smacks of reconstruction. He did not observe the drain before the impact. He went back to the scene several days later, observed the drain and came to the conclusion that it was impact with the drain that caused him to lose control. It is worthy of note also that the plaintiff's vehicle continued to pass the defendant's vehicle at a substantially faster speed after it had mounted the median strip, and significant also that the plaintiff was not sure in his evidence whether he passed in front of or behind the defendant's vehicle after losing control. Finally, and probably most importantly of all, the plaintiff simply made no observation of any signal from the other vehicle of its intention to change lanes. This is flatly contrary to the evidence of the defendant and her witness which I see no reason to reject.

11. I conclude that at no time did any part of the vehicle driven by the defendant commence to move into the right-hand lane. Proof of this fact is essential before the plaintiff can succeed and it has not been proved. Although no issue of contributory negligence arises, I think that the probabilities are that the plaintiff's injuries were caused by his own failure to keep a proper lookout, travelling at an excessive speed and failing to keep proper control of his vehicle causing it to mount the median strip.

12. There will be judgment for the defendant and unless the parties wish to be heard I propose to order the plaintiff to pay the defendant's costs.