Stuart Evans-Miller Vcolin Monger [1993] ACTSC 43 (23 April 1993)

SUPREME COURT OF THE ACT

STUART EVANS-MILLER v.COLIN MONGER
No. SC832 of 1991
Number of pages - 10
Negligence - Contributory Negligence

COURT

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

CATCHWORDS

Negligence - Motor vehicle accident - Give way intersection - No issue of principle.

Contributory negligence - Responsibility for own damage - Action and counterclaim - Van driver and motor cyclist.

HEARING

CANBERRA, 23-24 February 1993
23:4:1993

Counsel for the Plaintiff: J. Brewster

Instructing Solicitors: Gallens Crowley and Chamberlain

Counsel for the Defendant: R. L. Crowe

Instructing Solicitors: Peter Smythe Burnett and Co

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff against the defendant in the

action, for damages to be assessed or agreed.
2. That the plaintiff's damages be reduced by 20 percent on account of

his

responsibility for his own damage.
3. Judgment be entered for the defendant against the plaintiff in the
counterclaim, for damages to be assessed or agreed.
4. That the defendant's damages be reduced by 80 percent on account of

his

responsibility for his own damage.

DECISION

MASTER HOGAN The plaintiff in this action sues to recover damages for personal injury sustained in a motor vehicle accident on 7 August 1991. The defendant has filed a Notice of Counterclaim, seeking damages for personal injury that he also sustained in the same accident. This hearing was limited to the determination of the issues of liability.

2. The accident happened at the intersection of Laurens Street and Taverner Street in Waniassa. Taverner Street is a substantial connecting road, running generally south easterly from its intersection with Drakeford Drive down to its intersection with Erindale Drive. It has two marked lanes of bitumen for traffic in each direction, separated by a wide, gravel covered, median strip. A driver travelling in a south easterly direction towards the intersection with Laurens Street negotiates a crest of a hill and a sweeping right hand bend. The posted speed limit for traffic in Taverner Street is 80 kilometres an hour.

3. Laurens Street is a relatively short street, which runs south west from McBryde Street, to form the upright of a T intersection with Taverner Street. It also has two lanes of bitumen for traffic in each direction, which, at the intersection at any rate, are divided by a narrower median strip. Traffic coming along Laurens Street is controlled by a give way sign at the intersection.

4. The plaintiff, a 20 year old student, was riding a Suzuki 550cc motor cycle. He was familiar with the intersection, having ridden on Taverner Street on many occasions. His only recollection of the evening is of leaving the home of a friend in Waramanga, intending to ride to the home of another friend in Gowrie. The time was about 8.30 pm. The course of that journey involved his riding in a south easterly direction in Taverner Street. He has a vague impression of a beige coloured van, and then of waking up lying injured on the road.

5. The plaintiff called as a witness Mr Franc Jozef Bizjak. Mr Bizjak was driving a car in Laurens Street towards the intersection with Taverner Street. He observed a light coloured van stationary at the intersection ahead of him. The van indicated a right hand turn and moved off into the intersection. As it was about half way across the south east lanes he saw a motor cycle come from the right hand side and strike the right door of the van. He was still some distance back from the intersection, and his view up to the right in Taverner Street was restricted. The cycle was not in his view for long enough for him to form any estimate of its speed, or even to observe whether the headlight was on. He did not see any brake lights activated on the van after it started to move into the intersection and before it was struck by the cycle. The van was moved to its left a short distance and spun to its left by the impact. Both the cyclist (the plaintiff) and the defendant (the driver of the van) were seriously injured.

6. The accident was investigated by Constables Orr and Clayton. Photographs of the intersection and of the vehicles that another officer took were admitted in evidence. When they arrived the weather was fine, the road was dry, and visibility was clear. It began to rain soon after they arrived. The photographs show that street lighting was provided in Taverner Street for some distance before and at the intersection. The intersection was well lit. Constable Orr estimated that the distance from the crest of the hill in Taverner Street from where a driver travelling south east can clearly see the intersection was about 140 metres from the intersection. That accords with the impression one gets from the photographs.

7. There were no tyre burn marks on the road, nor indeed any evidence of any kind on the road surface to indicate a point of impact. The vehicles had not been moved before the police arrived. The van was facing east, diagonally across the lane separation line in the south east bound carriageway. It had therefore been spun anticlockwise through about 130 degrees. Constable Orr had the headlight of the motor cycle removed, and he forwarded it to the scientific section for examination.

8. A report from Mr Petterd, a senior forensic scientist with the police Forensic Services Division was admitted in evidence.

9. His conclusion was that the low beam filament was energised when the globe was subjected to trauma.

10. His report counselled caution in the interpretation of the appearance of the light globe, because filament oxidation and the presence of melted glass fragments can occur if power is switched on to a globe which has an intact filament but a broken glass envelope.

11. There was no evidence that anyone switched on the light of the cycle after the accident. It does not seem to me to be the sort of thing that anyone would want to do. The plaintiff had no recollection of the state of the lights when he left Waramanga, but he claimed to have his lights on constantly. It would have been dark after 8.00 pm in August. There was no reason suggested why he would want to drive at night without the headlight on.

12. The defendant did not concede that the plaintiff's headlight was on. He insisted that he did not see any light approaching before the collision. Accepting the truthfulness of that answer, there are two possible explanations. One is that the light was not on. The other is that his observation was at fault.

13. In my opinion the second is the more likely. I think it is more probable than not that the plaintiff's headlight was illuminated, and on low beam, at the time of the collision.

14. The defendant suffered head injuries in the collision. Apparently it was about 8 days before he recovered consciousness in hospital. He was at first disoriented, and his memory of the event returned to him only gradually.

15. Constable Orr interviewed him at his home on 25 September 1991, some 7 weeks after the accident. The defendant told Constable Orr that he had driven on Laurens Street, proceeding to his home at Oxley. He stopped at the give way sign and gave way to traffic passing in Taverner Street. He continued, "I looked right, and then I looked left, then I looked right again. I had no sight of any oncoming traffic coming in either direction. I had the vehicle in the situation of preparing and actually moving forward, and a collision resulted." On further questioning he estimated that he had been stopped at the give way sign for about 10 seconds. Two vehicles had passed by in Taverner Street while he was stationary. The interrogation continued:

"I said: Did you see the motor cycle you collided with prior to the
collision?
He said: I can't remember that.
I said: What is the last thing you remember before the collision?
He said: Generally driving home.
I said: What is the first thing you remember after the collision?
He said: I remember lying in my hospital bed approximately seven or
eight days later."

16. After some further questions and answers that are not material, the constable continued:

"I said: What was the condition of your eyesight on the night of the
collision?
He said: As per normal.
I said: Was your vision obstructed in any way?
He said: No, not at all.
I said: Is there any reason why you didn't see the motor cycle
prior to the collision, do you think?
He said: Because he wasn't visible, he would have been prior to the
hill where distance of sight was first possible of
approximate 110 metres away prior to the intersection."

17. In evidence the defendant claimed that his memory of the accident had eventually become quite good, especially after he had revisited the scene. He confirmed that he drove in Laurens Street to the give way sign and stopped. Two vehicles passed in Taverner Street, one in each direction. He looked right, then left, then right again. He put his foot on the clutch, engaged first gear, released the clutch while pressing the accelerator and moved slowly away from the give way line. As he was moving off he was looking straight ahead, and also, to use his phrase, "veering to the left because I was approaching the oncoming lane that was coming to the left, to confirm that there was no traffic."

18. He said that he did not cross into the second of the two south east bound lanes of Taverner Street. Immediately before the collision he noticed something heading in a south easterly direction, and braked or stopped the van. He did not observe any lights on the approaching object. He estimated that it was 90 to 110 metres away when he noticed it. He also thought that the front of his vehicle was about level with the line separating the two lanes in the south east bound carriageway. The object appeared to be travelling fast. Although the incident happened quickly he estimated that 3 to 3.5 seconds elapsed between the time when he first noticed the object and the time of the collision.

19. If his van were stopped in the position that he described, it would, of course, be blocking the whole of the left hand lane, but would leave free for traffic practically the whole of the right hand lane.

20. The defendant also called evidence from Mr Keirnan, a highly qualified and experienced traffic engineer. He had visited the site and read statements by the defendant and Mr Bizjak and a transcript of the proceedings in the Magistrates' Court. That transcript was not in evidence before me, but I do not think that in the circumstances of this case anything turns on that point.

21. The first matter on which he attempted to form an opinion was the speed of the motor cycle.

22. Calculations based on the rotation of the van did not yield a reasonable result. Another estimate based on the damage caused to the van gave a speed in the order of 50 kilometres an hour on impact. He commented that any speed in excess of that would have been likely to have been fatal. It seems that the plaintiff was projected head first through the driver's window and then collided with the defendant's head. Perhaps that would be less likely to be fatal for the plaintiff than hitting the metal side of the van. But as I understand his evidence, his estimate is based more on the extent of the deformation of the side of the van. I see no reason to doubt the estimate, which is, by itself, consistent with an initial speed of 80 kilometres an hour before the plaintiff braked on seeing the van in front of him, or with a higher initial speed.

23. Mr Keirnan also analysed the accident, as he understood it to have happened, by reference to the perception and reaction times and braking distances at various speeds of the motor cycle. Assuming a reaction time of 2.5 seconds, the cyclist, if travelling at 80 kilometres an hour, would have been able to stop completely in 97 metres. Assuming that when the van moved onto the carriageway the cyclist was about 100 metres from the intersection, he should have been able to stop in time. A collision speed of about 50 kilometres an hour indicated a speed more of the order of 90 to 100 kilometres an hour. He considered that the events as described by the defendant were feasible, and that it was likely that the accident was a result of Mr Monger's stopping his vehicle on the carriageway and a combination of inattention and excessive speed by the motorcyclist.

24. In his report Mr Keirnan stated that, for the purposes of his analysis, he assumed that:

. the van was stationary at impact;
. the road surface was damp;
. the van stopped at the give way sign before entering the
intersection;
. the motorcycle headlight was on.

25. I am satisfied that the motorcycle headlight was on, and that the van stopped at the give way sign before entering the intersection. However, it is clear from Constable Orr's evidence and the photographs in Exhibit "B" that the roadway was dry. I doubt whether that makes any difference to the calculations about stopping distances. Since there is no evidence of tyre burn marks on the road the co-efficient of friction between the tyres and the road may not have been critical to the estimates, which seem to have assumed no loss of traction between tyres and road.

26. But I think it is more important to decide whether the defendant stopped the van after he drove on to Taverner Street, so that he had been stationary for some seconds before the impact.

27. The defendant was clear in his evidence that he did so. I have no doubt at all that the picture now in his mind is clearly one of having done so. The question is, whether his recollection is reliable.

28. In the first place, he received a severe head injury as a result of which he suffered initially from retrograde amnesia.

29. Secondly, when he spoke to Constable Orr on 25 September 1991 his recollection was clearly different. He first said, simply, "I had no sight of any oncoming traffic coming in either direction. I had the vehicle in the situation of preparing and actually moving forward, and a collision resulted." Later, when asked, "Did you see the motor cycle you collided with prior to the collision?" he said, "I can't remember that." When asked whether there was any reason why he didn't see the cycle prior to the collision he replied, "Because he wasn't visible, he would have been prior to the hill where distance of sight was first possible of approximately 110 metres away prior to the intersection."

30. Lastly, Mr Bizjak, who was in a position to observe clearly the movements of the defendant's van in front of him, described it as simply moving off to make a right hand turn, and as it was about half way across the south bound lanes the collision occurred. He did not see any brake light activated, and he did not see the van stop and remain stationary for any period of time before the impact. His evidence to that effect was not broken down in any way in cross-examination. It is consistent, as a general description, with the version that Mr Monger gave to Constable Orr. There is no other independent evidence in the case that appears to me to be inconsistent with it. I see no reason why I should not accept it as accurate, rather than the defendants version as given in evidence.

31. Mr Keirnan was asked in cross-examination whether it was critical to fix the speed of the van at 10 rather than 5 kilometres an hour. He responded, "Well, not necessarily. I think what is more essential is that he moved away from a stop sign as a stationary vehicle. He then sighted the motor cycle and then he stopped. That is probably more important than the exact speed because this would have happened over about a two or three second period, probably, in any event."

32. I am comfortably satisfied on the evidence that the defendant did stop at the give way sign. He moved away from the sign, but he did not stop the van before the collision. I am not satisfied that the defendant in fact saw the object coming towards him, or that it was 90 to 110 metres away when he saw it, or that anything like 3 to 3.5 seconds elapsed between the time that he first saw the object and the time of the impact.

33. I am not satisfied therefore that the plaintiff at any time exceeded the posted speed limit of 80 kilometres per hour. There were no circumstances apparent to me in the evidence that would have made it prudent for the cyclist to travel at less than that speed as he came over the crest and around the bend to where he could see the intersection.

34. Whether at that point he did in fact see the van at the intersection I simply do not know. His retrograde amnesia means that there is no way of finding out. What it is critical to decide is whether he ought to have seen it in time to stop or swerve around the front of the van.

35. From the evidence of Constable Clayton, her sketch Exhibit "D", and the photographs Exhibit "B5" and "B7", it is clear that after the impact the van spun around, so that its front wheels were to the east, and the rear wheels were to the west, of the lane separation line in the south east bound carriageway. That seems to me to be consistent with the van's having reached a point where its front wheels were in the vicinity of that lane line at the time of impact. That conclusion is consistent with the evidence of both the defendant and Mr Bizjak. I think that at that time it was still moving, though still slowly. In that respect I prefer the evidence of Mr Bizjak to the defendant's present recollection. I think that the defendant's description of the manner in which he moved off is more reliable than estimates of time given by him or Mr Bizjak. It is consistent with that description that the van did not move forward with any sudden acceleration, but at a moderate speed from a standing start, and that by the time of the impact it had not reached a higher speed than about 10 kilometres an hour.

36. Constable Clayton measured the width of that lane at 3.1 metres. Photograph Exhibit "C6" shows that the line in respect of the give way sign was not on the kerb alignment of Taverner Street, but was something of the order of 1.5 to 2 metres to the east of it. There is no direct evidence on the point, but I am prepared to assume in the defendant's favour that he had been stationary at the give way line, rather than at the kerb prolongation line that the photographs display. It follows that, after it moved off, the van travelled a distance of the order of 5 metres. At an average speed of 5 kilometres an hour that would take 3.6 seconds.

37. The slower the assumed speed of the cyclist, the closer he was to the intersection when the van began to move. Assuming a constant speed of 80 kilometres an hour, a time of 3.6 seconds means that the cyclist was about 80 metres from the van's line of travel when the van moved off. Even allowing for the lack of precision in the elements of those calculations, it is clearly probable that the cyclist was well within the 140 metres or so of clear visibility when the defendant began to move off.

38. In a way, that could be consistent with the defendant's own evidence of the deliberate manner in which he did move off. If it is accepted that after the traffic in Taverner Street had passed he first looked to the right, there were then still some seconds to go before he would begin to move. The plaintiff was then not yet at the crest, and not visible. The defendant looked to the left, saw nothing, and then looked to the right again. If the plaintiff was then only a very short distance before the crest, but still not visible to him, there may well have been some seconds taken up as the defendant put his foot on the clutch, engaged first gear, and released the clutch while pressing the accelerator, to move slowly away from the line. As he was doing all that he was not continuing to look to the right, he was concentrating again on the lane approaching from the left. Meanwhile the plaintiff had, at 80 kilometres an hour, or 22.22 metres a second, passed the point where he was visible, and from where he could see the van at the intersection.

39. But, whether or not the explanation lies in the length of time between the defendant's looking to the right and his beginning to move off, or the slowness with which he moved off, it is probable that if he had been paying at least some attention to the right as he began to move, as he should have done, he would have seen the light of the approaching cycle, and have been able to brake, and to stop before coming on to Taverner Street to any significant extent. In that respect therefore, he failed to take reasonable care for the safety of the plaintiff.

40. In this litigation there are a number of separate issues that must be clearly identified, and dealt with separately, even though the area of factual dispute is largely the same in each case.

41. The first arises in the action. The onus of proof is on the plaintiff. That is, whether the defendant failed to take reasonable care for the safety of the plaintiff, thereby causing damage to the plaintiff. I am satisfied that he did. There will therefore be judgment for the plaintiff, for damages to be separately assessed or agreed.

42. The second is whether the plaintiff, by his own fault, that is, by failing to take reasonable care for his own safety, caused or contributed to his own damage. That issue arises in the action, and on it the defendant bears the onus of proof. If the defendant succeeds on that issue, there must then be an apportionment of responsibility, not for the accident as such, although that is obviously relevant, but for the damage suffered by the plaintiff.

43. Similarly, in the counterclaim, the defendant must demonstrate that the plaintiff failed to take care for the defendant's safety, the plaintiff alleges that the defendant failed to take reasonable care for his own safety, and, if both succeed to any extent, there must be apportionment of their responsibilities for the defendant's damage. Because the vulnerability to harm of a van driver is different from that of a motor cyclist, it is at least logically possible that, on the basis of the same findings of fact about causation of the accident, there could be different apportionments of responsibility in the action and the counterclaim.

44. The particulars of negligence and of contributory negligence alleged by the defendant against the plaintiff are:

1. Failing to have an illuminated headlamp;
2. Excessive speed;
3. Failing to keep a proper lookout;
4. Failing to take effective evasive action.

45. I have already found that, on the balance of probabilities, he had his headlamp on, and that I am not satisfied that he was travelling at a speed which was either in excess of the posted speed limit or excessive in the circumstances.

46. It is consistent with Mr Keirnan's expert opinion that the plaintiff had already reduced his speed to something of the order of 50 kilometres an hour by the time of the impact. How far from the point of impact was he when he began to reduce his speed? On that issue there is no direct evidence, and there is no evidence from which an inference can be drawn about it without circularity of reasoning.

47. How far was he from the point of impact when, if he had been keeping a proper lookout, he ought to have seen the van beginning to move out across his path?

48. I think that, consistently with the findings that I have already made, when the plaintiff arrived at the point from where he could see the intersection, the van had been stationary at the give way line for some seconds. The intersection was well lit. The stationary van would have been quite visible to him if he was looking. There was nothing about the scene that confronted him at that point that should have caused him to anticipate that the van would move away from the sign and cross his path. It was reasonable for him to continue on at the same speed. At that speed it would take a little over 6 seconds for him to travel to the point of impact. Assuming, in the defendant's favour, that he took 4 seconds to move the van from a standing start to the point of impact, there were about 2 seconds during which it was still reasonable for the plaintiff to travel at his constant speed, which would place him 44 metres closer to the point of impact, or about 100 metres away from it.

49. Mr Keirnan's table of stopping distances is just as accurate if one allows the conservative reaction time of 2.5 seconds to allow for the cyclist to perceive, not that the van was stopped across his path, as Mr Keirnan assumed, but that it was beginning to move from the give way line into his path, as I think was probable. From 80 kilometres an hour that table gives a total stopping distance of 97 metres, which is of the same order of distance as the 100 metres.

50. Even allowing for the imprecisions in those calculations, it seems probable to me that if the plaintiff had been keeping a proper lookout consistent with his speed he should have been able to reduce his speed to a much greater extent than he did, and, with that slower speed, he may also have been able to swerve to his right and use the greater part of the right hand lane which was available to him.

51. On the hypothesis, therefore, that is favourable to him, namely that he was not exceeding the speed limit, I am persuaded on the balance of probabilities that he was not as observant as he should have been, and did not perceive until it was too late to react in time that the van was moving into his path.

52. As I see the probabilities, there was not, in the behaviour of either party, any deliberate carelessness. There was inattention on the part of each, and for each it was inattention for something of the order of one to four seconds. The primary responsibility was that of the defendant to give way to the traffic on his right. The cyclist probably did see the impending collision in time to brake to same extent, whereas in my view the defendant did not see the cyclist, if at all, until it was too late to do anything. A cyclist is likely to be injured more severely in a collision than the driver of a van, but that imposes a duty on van drivers to be careful for the safety of cyclists just as it does on cyclists to be careful of their own safety. A cyclist must anticipate that if he collides with a van he may well injure the van driver, even though he may not foresee that he will be projected through the window and cause serious head injuries. But, largely because the fault on each was a matter of relatively short inattention, I do not think that the facts of this case call for a different apportionment of responsibility in the counterclaim from that in the action.

53. In the action I find that the plaintiff was partly at fault, and should bear 20 percent of responsibility for his own damages, and his damages should be reduced accordingly.

54. In the counterclaim I find that the plaintiff failed to take reasonable care for the safety of the defendant. There will therefore be judgment for the defendant on the counterclaim, for damages to be separately assessed or agreed, and I find that the defendant should bear 80 percent of the responsibility for his damage, and his damages should be reduced accordingly.

55. I will hear submissions on costs.