Warren Billerwell v the Nominal Defendant [1996] ACTSC 100 (27 September 1996)

SUPREME COURT OF THE ACT

WARREN BILLERWELL v. THE NOMINAL DEFENDANT
No. SC383 of 1994
Number of pages - 5
Contributory Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY MASTER T CONNOLLY

CATCHWORDS

Contributory Negligence - Motor Vehicle Accident - Head on Collision - Whether Plaintiff Failed to Take Adequate or Appropriate Evasive Action - No Issue of Principle.

Law Reform (Miscellaneous Provisions) Act 1955, s.15(1) Balkin and Davis, Law of Torts, Butterworths1991 Fleming on Torts (8th ed)

Purcell v Watson (1979) 26 ALR 235 Shepherd v Zilm (1976) 14 SASR 257 Weber v Ross (1987) 7 MVR 176

HEARING

CANBERRA, 16-17 September 1996 27:9:1996

Counsel for the Plaintiff: Mr P Webb QC & Mr B Meagher Instructing Solicitors: Colquhoun Murphy

Counsel for the Defendant: Mr D D Feller Instructing Solicitors: Deacons Graham & James

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $270,000 plus out of pocket expenses up to the limit of $30,000 as agreed between the parties, with no reduction for contributory negligence. 2. The defendant pay the plaintiff's costs.

DECISION

MASTER T CONNOLLY
1. This is a claim for personal injuries arising from a motor vehicle accident on 7 October 1993. The plaintiff suffered injuries when his vehicle collided with another vehicle on Gundaroo Drive in Gungahlin in the Australian Capital Territory. The accident occurred at about 8.15 p.m. as the plaintiff and his girlfriend were driving home after doing their shopping. A vehicle veered onto the wrong side of the road and collided with the plaintiff's vehicle. The driver of this vehicle, who had a blood alcohol level of .273, that is over 5 times the legal limit, was killed as a result of this accident. The plaintiff suffered considerable injuries, and it is clear from the photographs tendered as evidence that the plaintiff and his girlfriend are indeed both lucky to have survived this accident.

2. At the commencement of the hearing I was advised by counsel that primary liability and an amount of damages, had been agreed between the parties, and that the matter would proceed only to determine the question of the existence of, and the amount of, any contributory negligence on the part of the plaintiff in the accident.

3. I was advised in open court that damages have been agreed at $270,000 plus out of pocket expenses. This sum reflects the nature of his injuries and the impact they will continue to have on his future career. This sum would, of course, be subject to reduction should contributory negligence be established. The Law Reform (Miscellaneous Provisions) Act 1955 provides by s.15(1) that "Where a person suffers damage as the result of his or her own fault and partly of the fault of another person or other persons, a claim in respect of that damage is not liable to be defeated by reasons of the fault of the person suffering the damage, but the damages recoverable in respect of the damage shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage." This was enacted to overcome the old common law rule under which contributory negligence was a complete bar to recovery. Since the enactment of apportionment legislation, such as s.15 of the Law Reform (Miscellaneous Provisions) Act, contributory negligence operates merely to reduce the damages to the extent to which the plaintiff has been responsible for that loss. Contributory negligence, in the words of Balkin and Davis, Law of Torts, Butterworths1991, p337, "...consists of the plaintiff's failure to take reasonable care for his own safety and well-being which contributes, at least in part, to his subsequent injury." The learned authors of that text go on to say that "In order to establish this defence the defendant must plead and prove that (1) the injury of which the plaintiff complains results from that particular risk to which the negligence of the plaintiff exposed him; (2) the negligence of the plaintiff contributed to his injury; and (3) there was fault or negligence on the part of the plaintiff." (op.cit.)

4. Counsel for the plaintiff submitted that, as the defendant had called no witnesses and produced no experts they had failed to discharge their evidential onus. Counsel for the defendant based his submissions on the evidence as led by the plaintiff and on what he saw as significant concessions made in cross examination. In my opinion it is necessary to go into this material in order to deal appropriately with the claim of contributory negligence.

5. The plaintiff gave evidence of the accident, and a copy of a statement he made to police shortly after the accident was tendered. The plaintiff impressed me as a patently honest witness. There was no dispute that, as a result of the accident, his memory of events of the evening was not complete, and he was open about this. He could not himself recall, for example, applying his brakes, but the evidence of his passenger, Ms Cornish, and of skid marks on the road, establish to my satisfaction that he did so apply his brakes. Where the plaintiff made concessions about alternative courses of action that were, in hindsight, open to him, I find this to merely confirm my impression of him as a witness of truth.

6. The accident occurred at about 8.15 on the evening of Thursday 7 October 1993. The plaintiff was at the time working as a contract plasterer, and living with his girlfriend in Gungahlin. He was a young man of 22. He was driving an old model Holden sedan registered in South Australia and owned by a relative. The car was old, but there was nothing to suggest that it was in anything other than sound and roadworthy condition. He was driving at the speed limit of 80 kilometres per hour, returning with his girlfriend from a shopping expedition. He was travelling on his own side of the road.

7. Gundaroo Drive is the main access road to the new suburbs of Gungahlin, which at the time of the accident were very new indeed. It is constructed as a single lane carriageway in each direction, but has a speed limit of 80 kph. There is a straight stretch of road of about 300m before the road curves, as viewed by the plaintiff, to the left. I am satisfied from the evidence of the plaintiff and Ms Cornish that the other vehicle came around this corner and failed to correct properly, and so continued in the plaintiff's lane until the collision occurred. The evidence of Constable Conway, a very experienced officer of the Accident Investigation Squad with qualifications in drafting and engineering, was that the plaintiff would have first seen the other vehicle at a distance of about 200 metres. I accept that the plaintiff was travelling at the speed limit, as was the other vehicle. This would mean, on Constable Conway's evidence, that the plaintiff would have had between 4 and 5 seconds to take whatever evasive action was necessary.

8. The plaintiff clearly had difficulty recalling what occurred. He said in his record of interview with the police at the time that he took his foot off the accelerator. Constable Conway said, in cross examination, that "...that would be the most logical thing to do. That is the first thing I'd be looking at doing myself." The thrust of the defendant's case is that the plaintiff failed to take adequate or appropriate evasive action, and that he should have been able to avoid the accident. It was suggested to him that he could have veered right or have driven off the carriageway and over a concrete gutter onto a grass verge on the left side of the road. In cross examination the plaintiff admitted, honestly, that this would have been possible.

9. Counsel for the plaintiff put to me that this was really a suggestion that only makes sense in hindsight. He also pointed out that the grass verge was separated from and above the level of the road, with a concrete curb which the plaintiff had estimated to be at about 60 degrees and that such a course of action would present its own dangers. By agreement with Counsel I attended the scene of the accident with Counsel. My impression is that to have attempted to have pulled off the carriageway at a speed of between 80 and 60 kph, accepting that the plaintiff was slowing down, would be fraught with some danger, including, as Counsel for the plaintiff contended, a real risk of rolling over, and then coming either back onto the carriageway in front of the oncoming vehicle, or continuing on over the grass verge which then drops away quite sharply down toward the pondages area.

10. Constable Conway, in cross examination, said that, at night, it can be difficult to discern what oncoming headlights actually are doing. He said "...even on a straight stretch of road, an oncoming set of headlights will appear larger than they really are, because of the haze that is surrounding those headlights. And it can be very deceptive as to which side of the carriage way the oncoming vehicle is on, even if it is on the wrong side of the carriageway. It would be a lot closer before one would realise that the oncoming vehicle is on the incorrect side of the carriageway, therefore your reaction time is greatly reduced."

11. The plaintiff acknowledged that he thought the oncoming vehicle was on the wrong side of the road from the time it came around the corner. He says, and I believe him, that he thought the oncoming car had overcorrected. So it had. He also said, and I both believe him and find his belief to be reasonable, that he expected the vehicle to correct back and swerve back onto it's correct lane. He says that in the short time available he considered veering right himself, but feared, reasonably, that the oncoming vehicle would itself correct. True it is, as Gibbs J said in Purcell v Watson (1979) 26 ALR 235 at 240 that a driver "...could not assume that the driver of the approaching vehicle was careful and alert and would see him in time to avoid him. The assumption that other users of the highway will act reasonably and safely is so often falsified that it cannot be said as a general rule that a user of a highway can reasonably act on that assumption", but the plaintiff was entitled to assume, reasonably, that the oncoming vehicle should see him and attempt to take some action to correct itself back into its own lane. He could not have known that the driver was in fact over 5 times over the legal blood alcohol limit, and was in fact going to proceed on the wrong side of the road directly into his own path with no attempt to return to the correct lane. His decision not to veer right was in my opinion entirely appropriate.

12. I can not accept that the plaintiff ought to have veered left and off the carriageway. I accept Counsel for the plaintiff's submissions on this point, for the reasons given above. There was no evidence from the defendant to suggest that this was a safe course. I can entirely understand that the plaintiff would now, in retrospect, and given the nature of his injuries, accept that this was an alternative. But at the time, his conduct in slowing, considering his options and then braking, were in my opinion fair and reasonable. Perhaps in retrospect he could have veered off the carriageway at speed and avoided this accident. Perhaps not. Even if this option was available, he did not act unreasonably in the sense of failing to take reasonable care for his own safety. As the learned author of Fleming on Torts (8th ed) says, "...a person's conduct in the face of a sudden emergency cannot be judged from the standpoint of what would have been reasonable in the light of hind-knowledge and in a calmer atmosphere conductive to a nicer evaluation of all alternatives." (p284).

13. A number of authorities were cited in support of the defendant's argument. In contributory negligence cases, of course, much turns on the facts. Shepherd v Zilm (1976) 14 SASR 257 and Weber v Ross (1987) 7 MVR 176 are both South Australian cases where a plaintiff's failure to slow or take evasive action were held to amount to contributory negligence. In the present case, however, I am satisfied that the plaintiff did take appropriate action.

14. Constable Conway said that the other alternative was for the plaintiff to attempt to stop his vehicle, to avoid the collision or at least reduce its impact. I find that he began to slow his vehicle by taking his foot off the accelerator as soon as he saw the oncoming vehicle, and that later he did brake.

15. On the facts as I find them, I am satisfied that the plaintiff acted, in the circumstances, with appropriate care for his own safety. I find no contributory negligence.

16. I award costs to the plaintiff.