Margaret Harrison (Nee Lloyd) v Brian William Harrison and Gregory Shane Perry [1992] ACTSC 115 (13 November 1992)

SUPREME COURT OF THE ACT

MARGARET HARRISON (nee LLOYD) v. BRIAN WILLIAM HARRISON and GREGORY SHANE
PERRY
No SC 368 of 1990
Number of pages 7
Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A Hogan(1)

CATCHWORDS

Negligence - Contribution between tort feasors - Motor vehicle accident - Intersection collision - Right hand turn - Excessive speed - No issue of principle.

HEARING

CANBERRA
13:11:1992

Counsel for the Plaintiff: B. Murray QC and C. Toomey

Instructing Solicitors: Gallen Crowley and Chamberlain

Counsel for the Defendant: C. Branson QC and M. J. Cranitch

Instructing Solicitors: Abbott Tout Russell Kennedy

Counsel for the Third Party: P. O'Connor

Instructing Solicitors: Crossin Power Haslem

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the defendant against the third party for $142,966.41.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff in a motor car accident on 26 January 1989.

2. The plaintiff was a passenger in a Toyota sedan being driven by the defendant in a westerly direction on Constitution Avenue towards the intersection of that street with Anzac Parade.

3. It was after 10.00 pm. There had been a fireworks display in celebration of Australia Day, there were a lot of pedestrians in the area, and traffic was much more heavy than would be usual at that time.

4. The lights facing the defendant were green as he arrived at the intersection. He was travelling in the right hand lane of the two lanes marked on his part of the carriageway. He crossed the southbound carriageway of Anzac Parade, and, on arriving at the northbound carriageway, the lights then facing him still being green, he commenced to make a right hand turn in order to travel north towards the War Memorial.

5. There were two lanes also for traffic travelling east in Constitution Avenue. Vehicles in the right hand of those lanes, that is, near the median strip, had halted, not because the lights were changing, but because traffic was already banked up and stationary in the intersection, between the wide ceremonial median strips of Anzac Parade.

6. The third party, Mr Parry, was driving east in Constitution Avenue.

7. According to a statement he later made to a police officer, he had originally been in the right hand lane, but when he came to the traffic that had banked up in that lane, about 40 to 50 metres back from the intersection, he changed into the left lane. Asked whether he increased his speed after changing lanes he replied, "No, stayed the same speed, around 55 to 60." The speed limit in Constitution Avenue is 60 kilometres an hour.

8. As he approached the intersection, now in the left hand lane, the lights were still green. The car being driven by the defendant was making its right hand turn in front of him. When he saw it he thought he was about 2 or 3 metres from the white line across the road. He braked, but was not able to stop in time. The front of the utility collided with the centre of the left side of the Toyota.

9. It was a violent collision. One passenger in the Toyota was killed. The other, the plaintiff, was seriously injured. She sustained a closed head injury with brain stem damage. The medical reports Exhibit "A" set out the detail of her treatment and present condition.

10. The plaintiff and the defendant have agreed that a proper award of compensation for the plaintiff is the sum of $357,416.04, on the basis that no order is made for costs of the action between the plaintiff and the defendant, that the defendant have credit for $47,416.04 paid by the defendant on the plaintiff's behalf, and that there be the usual order as to interest.

11. I have directed the entry of judgment for the plaintiff against the defendant accordingly.

12. The third party does not contest that the award agreed between the plaintiff and the defendant is a proper one. The action has proceeded so that I might decide the amount that the third party should contribute to the award made against the defendant.

13. Some matters may be disposed of in a fairly summary fashion. After the accident the third party submitted to an alcotest, which indicated a blood alcohol reading above the prescribed concentration. He was taken to the Civic Police Station where he underwent a breath analysis test. The test gave a figure which was below the prescribed concentration. There was no medical or expert evidence about the effect of alcohol in the blood upon his ability to drive at the prescribed or any other concentration.

14. I am not satisfied that, whatever the amount of alcohol the third party had consumed, it had any part to play in causing the accident. The evidence in this case is such that the respects in which his driving fell short of the standard of care called for in the circumstances do not depend upon alcohol, either in the sense that alcohol made them more likely to happen, or that I might more easily decide that they did happen because he had taken alcohol.

15. Evidence was given by Mr Bodegraven and Miss Hurdle about seeing Mr Perry's utility pass on their left as they were stationary in the right hand lane of traffic, and they gave estimates, or, more accurately, made comments, about its speed. Having regard to their opportunities for observation, I do not find that their evidence causes me to arrive at any really different idea of that speed than is conveyed by Mr Perry's admissions to Sergeant Birch, namely that it was approaching, or was of the same order as, the speed limit of 60 kilometres an hour.

16. The simple fact is that in the circumstances, at that time and in that place, 55 to 60 kilometres an hour was far too fast.

17. The very presence of the line of traffic halted in the right hand lane should have alerted him to the need to proceed with greater caution. There were other reasons possible why they were halted, in addition to the desire of some of the drivers in it to make a right hand turn at the southbound carriageway of Anzac Parade. That line of stationary traffic in itself obscured his vision of traffic travelling in the opposite direction, which might make a right hand turn in view of the fact that the opposing traffic was stationary. Despite the good lighting it was a dark night. There were pedestrians in the area. Crowds do not always obey traffic lights.

18. The skid marks left by Mr Perry's vehicle show that, even allowing for a reaction time from when he first saw the Toyota till when the brakes took effect, he did not see the Toyota until he was so close to the intersection that he had no chance of stopping before impact.

19. The Toyota had made a right hand turn, and had crossed the right hand east bound lane. The front of the utility collided in the middle of its left hand side. There is no evidence about the Toyota's speed, and certainly no evidence that it was travelling at any speed faster than might be expected from a vehicle making a normal right hand turn.

20. Both the defendant and Mr Perry were available to give evidence. Neither of them did so. I think that I may the more easily draw inferences adverse to either of them from the physical facts of the accident as detailed by Sergeant Birch, and the admissions made by Mr Perry.

21. I do not accept the submission made on behalf of the third party that in the absence of direct evidence of the course of driving of the defendant I should not draw inferences about what it was, or that in its absence I am prevented from apportioning any blame to the third party.

22. The greater part of responsibility for the injury to the plaintiff in my opinion must rest with the defendant. He was making a right hand turn. The grave obligation rested upon him of not doing so unless he could do so with safety. It was not safe to do so because the third party was travelling at speed in the opposite direction. The defendant did not know that, I infer, because his vision was obstructed until it was too late by the stationary line of traffic in the right hand eastbound lane of Constitution Avenue. He should not have proceeded across the left hand lane, in which Mr Perry was travelling, until he had seen that it was safe to do so.

23. Mr Perry was approaching an intersection. His vision also was obstructed by the line of vehicles on his right. He continued to travel towards the intersection at such a speed that he would have no chance of avoiding a collision if any person or vehicle were to come into his path, when he could not see whether anyone was in fact doing so. The size and weight of his vehicle was such that it would cause major damage if it did collide with anything at the speed at which he was travelling.

24. In my judgment the third party should bear 40 percent of the responsibility for the plaintiff's damages.

25. In the third party proceedings, I direct the entry of judgment for the defendant against the third party for $142,966.41.

26. Unless counsel wish to be heard on the matter, I would order the third party to pay the defendant's costs of the third party proceedings.