Beverley Elizabeth Lam v Peter Michael Slack [1994] ACTSC 116 (28 November 1994)

SUPREME COURT OF THE ACT

BEVERLEY ELIZABETH LAM v. PETER MICHAEL SLACK
No. SC 333 of 1990
Number of pages - 5
Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A. HOGAN

CATCHWORDS

Negligence - Motor Vehicle Accident - Plaintiff moved off from Stop Sign - Defendant not keeping proper lookout - Defendant's breach not cause of accident.

Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424.

HEARING

CANBERRA, 22 and 23 November 1994
28:11:1994

Counsel for the Plaintiff: Mr R Mildren

Instructing Solicitors: Vandenberg Reid

Counsel for the Defendant: Mr B Hull

Instructing Solicitors: Crossin Barker Gosling

ORDER

1. Judgment be entered for the defendant.
2. The question of costs is reserved.

DECISION

MASTER A. HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 30 November 1985.

2. On the second day of the hearing I admitted in evidence a medical report tendered by the defendant, which had the potential to take counsel for the plaintiff by surprise. I reserved the question whether an adjournment should be ordered, in order to give counsel the opportunity to meet the matter of his complaint.

3. Meanwhile, the case proceeded to the stage where all the evidence relevant to the question of liability had been tendered on both sides. Counsel have agreed that I should proceed to determine that issue immediately, and then give directions about the further conduct of the case in the light of that finding.

4. In the circumstances of this case I agree that such a suggestion is eminently sensible.

5. The accident took place at the intersection of Athllon Drive with Drakeford Drive. As the roads were in 1985, the intersection was a T-intersection, as Athllon Drive did not then cross Drakeford Drive.

6. Drakeford Drive was a dual carriageway highway, with a grass median strip separating Northbound from Southbound traffic. On the Southbound carriageway there were three marked lanes for traffic.

7. Athllon Drive intersected Drakeford Drive from the East. It was a single carriageway, with a concrete median strip at the intersection, with three traffic lanes, one running Easterly for traffic turning left off Drakeford Drive, and two running in a Westerly direction, the Southernmost one being for traffic turning left to proceed South in Drakeford Drive.

8. Traffic travelling West was then controlled by a Stop sign at the intersection.

9. At about midday on Saturday 30 November 1985 the plaintiff drove a Mercedes sedan West in Athllon Drive, till she arrived at the Stop sign. There she stopped, and waited for traffic approaching from her right to pass in front of her.

10. She then proceeded into the intersection, where the front right side of her vehicle was struck by the front left side of a Holden Torana being driven South in Drakeford Drive by the defendant.

11. The Torana stopped very soon after impact. The Mercedes was turned to the left, and continued about 20 metres South along the median strip.

12. The next intersection to the North is about 500 metres from the scene of the collision.

13. There is nothing to obstruct the vision of a driver seated in a car halted at the stop line as far as that intersection.

14. Similarly, for the driver of a car travelling, as the defendant was, in a Southerly direction, there is nothing to obstruct vision of the intersection over practically the whole of that distance of 500 metres.

15. Counsel for the plaintiff conceded that the failure of the plaintiff to look carefully before entering the intersection was a cause of the collision.

16. The question is whether there was any failure on the part of the defendant to take reasonable care, and if so whether that failure also was a cause, or contributing factor.

17. The particulars of negligence relied on at the hearing were excessive speed and failure to keep a proper lookout.

18. The speed limit in Drakeford Drive is 80 kilometres an hour. The defendant's evidence is that he travelled from the previous intersection until he saw the plaintiff's car at about 70 to 75 kilometres an hour. That evidence was corroborated by his passenger, Mr Middleton. Neither the plaintiff nor her son, who was a passenger in her car, saw the defendant's vehicle for a long enough time to give an estimate of its speed.

19. There was no evidence that would enable any calculations to be made from the skid marks left on the road by the defendant's vehicle, or the course taken by the plaintiff's vehicle after collision, that would contradict the defendant's evidence. As a matter of impression the length of skid and the fact that the defendant's car stopped, probably within a car length after impact, would seem to be consistent with his having travelled at a speed of the order of 70 to 80 kilometres an hour.

20. I am not persuaded on the evidence that the defendant was travelling at an excessive speed in the circumstances.

21. Sen. Cst. Emerton investigated the accident, and recorded in his official book, a statement by the defendant in which he said,

"On Saturday 30 November 1985 about 12 midday I was driving my
Holden Sunbird sedan registered number NSW HER-419 in a southerly
direction in the centre traffic lane of Drakeford Drive. As I
approached the intersection of Drakeford Drive and Athllon Drive an
d was about 28 to 30 metres north of Athllon Drive I saw a green
Mercedes Benz sedan.
This vehicle was across the centre traffic lane of the
southbound carriageway and was travelling westerly at a slow speed.
I applied the brakes of the Sunbird and steered to the right to try
and avoid a collision which I was unable to do. The front of my
vehicle collided with the front right hand guard of the Mercedes.
When I first saw the Mercedes it was past the stop sign on Athllon
Drive, so I am unable to say if the driver of the Mercedes stopped
at the stop sign prior to entering Drakeford Drive."

22. In evidence in this Court he stated that when he noticed the car coming from his left it was about 25 to 30 metres from him. It was then half way across the first lane. That is broadly consistent with the contemporaneous statement that he made to Cst. Emerton.

23. In evidence in the Magistrates Court it appears that he swore to a longer distance, about 100 metres from the intersection, at which he saw the plaintiff's car. He contended in this Court that there was no way he could have seen it 100 metres from the intersection, and that if he had seen it moving into his path at that distance he could have avoided a collision.

24. The defendant knew the road. He was aware that there was an intersection on his left. There was nothing to obstruct his vision. There was no intersection to his right requiring his attention. I think that the defendant did fail to exercise reasonable care in not giving any attention to whether traffic was on or approaching the intersection on his left. He did not see the plaintiff's car until it was too late to do anything to avoid a collision.

25. But that does not conclude the matter. The question still remains whether that failure to keep a proper lookout caused or contributed to the accident. What would he have seen had he been looking, and would he have been able to avoid a collision if he had?

26. It is clear from the police sketch plan Exhibit "C" that the plaintiff's vehicle travelled a distance of between 12 and 15 metres from the stop line to the point of impact. That point was not identified with any precision, but it is probable on the basis of the skid marks left by the defendant's vehicle that he had been travelling in the centre lane, as he told Cst. Emerton, and that as he braked he swerved to the right to some extent, so that the impact took place within the lane closest to the median strip. It was the left front of his car which hit the right front of the plaintiff's car. The time it took for the plaintiff to travel from the stop line to the point of impact can not be calculated.

27. But had the defendant been looking directly at the intersection when he was 100 metres or so from it, what would he have seen? I think he would probably have seen the plaintiff's car still stationary at the stop line.

28. He was covering about 20 metres each second. A fair reaction time is one second. There would have been nothing in the appearance of a car, stationary at a stop line, to make him apprehend that the driver was about to pull out into his path, he being clearly visible.

29. As the High Court held in Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424 at 427,

"The failure to take reasonable care in given circumstances is
not necessarily answered by reliance upon the expected performance
by the driver of the give way vehicle of his obligations under the
regulations; for there is no general rule that in all circumstances
a driver can rely upon the performance by others of their duties,
whether derived from statutory sources or from the common law.
Whether or not in particular circumstances it is reasonable to act
upon the assumption that another will act in some particular way, as
for example by performing his duty under a regulation, must remain a
question of fact to be judged in all the particular circumstances of
the case.
Therefore, it is, in our opinion, rightly said that the "
'right hand rule' is not the be all and end all in relation to
questions of civil responsibility". The obligation of each driver
of two vehicles approaching an intersection is to take reasonable
care. What amounts to "reasonable care" is, of course, a question
of fact but to our mind, generally speaking, reasonable care
requires each driver as he approaches the intersection to have his
vehicle so far in hand that he can bring his vehicle to a halt or
otherwise avoid an impact, should he find another vehicle
approaching from his right or from his left in such a fashion that,
if both vehicles continue, a collision may reasonably be expected."

30. The irony of this case is that had the plaintiff approached the intersection without reducing speed or obeying the sign in any way, she might well have had a stronger case, because then the defendant, had he been looking, would have seen a vehicle approaching from his left in such a fashion that if both continued a collision might reasonably have been expected. There would have been a circumstance putting him on notice that the plaintiff might not perform her duty to stop at the Stop sign.

31. But in this case, had he been looking at some distance back from the intersection, he would have seen a car stopped at it, in obedience to the Stop sign. Even had he kept it under observation, I think that the time from when it began to move into his path, without warning, until he could react and brake or swerve or both, was so short that he would not have been able to avoid the collision. His car might have hit the right centre or the right rear of the Mercedes, but I am not persuaded that even had he been keeping a most vigilant lookout he would have had time to avoid the collision.

32. It follows that, even if I am right in imposing upon the defendant a duty to have been looking at the intersection at a distance further back from it, and in finding that he failed to do so, I am not satisfied that that failure caused or contributed to the plaintiff's damage.

33. There must therefore be judgment for the defendant.