O'Rourke v Gordon [1999] ACTSC 120 (12 November 1999)

Last Updated: 12 November 1999

O'Rourke v Gordon [1999] ACTSC 120 (12 November 1999)

CATCHWORDS

NEGLIGENCE - Motor vehicle accident - Plaintiff's vehicle hit guardrail to avoid hitting defendant's vehicle - Defendant executing a right hand turn from highway onto a private roadway - Whether defendant was negligent in failing to indicate his intention to turn and braking dangerously - Whether plaintiff failed to keep a proper lookout - Whether plaintiff driving at a speed excessive in the circumstances - Contributory negligence pleaded in the alternative - No issue of principle.

DAMAGES - Assessment - Personal injury - Motor vehicle accident - Soft tissue injuries to neck, back and left foot - Aggravation of pre existing lumbar spondylosis - Prior industrial accident - No economic loss claimed - No issue of principle.

No. SC 786 of 1998

Coram: Master T Connolly

Supreme Court of the ACT

Date: 12 November 1999

IN THE SUPREME COURT OF THE )

) No. SC 786 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JOHN O'ROURKE

Plaintiff

AND: MURRAY JOHN GORDON

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 12 November 1999

THE COURT ORDERS THAT:

1. Judgment be entered for the defendant.

2. The plaintiff pay the defendant's costs.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on 3 July 1998 on the Kings Highway between Queanbeyan and Bungendore, but on that stretch of the highway within the boundaries of the Australian Capital Territory. The plaintiff who was heading generally east from Queanbeyan to Bungendore collided with the armco guardrail on the westbound carriageway. It is the plaintiff's case that the defendant, who was proceeding in the same direction some three cars ahead in a line of traffic, was negligent in failing to indicate his intention to turn, and braking dangerously in order to execute a right hand turn into a roadway leading to a commercial boarding kennel known as Sonza Kennels which is situated off the highway.

2. The highway at the point of the accident runs in a generally east west direction. There is a prominent hill, identified in the proceedings as "Sparrows Hill" at which point the highway, which is a single carriageway highway, has a central concrete divide in place. The plaintiff's evidence is that he was proceeding towards Bungendore at about 5.30 pm on the afternoon of 3 July 1998. Dusk had fallen. He says that the crest of the hill is about 900 metres from the entrance to Sonza Kennels. The road at that point descends gently before turning gently to the left beyond the point of the driveway. Counsel for the defendant invited me to undertake a view, which I did in the presence of both counsel on the morning of 19 October 1999. This confirmed the photographic evidence, tendered by both the plaintiff and the defendant, that there is clear line of vision from mid way down the hill to the point where the defendant slowed and turned from the highway. The plaintiff was generally familiar with this stretch of road.

3. The plaintiff says that there were vehicles in front of him travelling in the same direction as him, "at a distance". He says that as he approached Sonza Kennels, doing about 100 kilometres an hour

"I seen tail lights come on briefly and go out again".

He says that at that point he applied his own brakes and reduced his speed from 100 kilometres an hour to 90 kilometres an hour. He says he was then 50 metres behind the vehicle in front of him.

4. He says he then released his brakes, and the stop lights in front of him came on for a second time. He says

"At that time I applied my brakes again heavily. My left hand wheel had locked up and I decided at that point in time it would be advisable to take evasive action as I didn't believe that I could stop in time to- before hitting the other vehicle."

5. He says that as he was aware there were no oncoming vehicles he drove around the side of the vehicle in front of him, went into a slide which he corrected, and then, he says, he saw the rear of a four-wheel drive leaving the carriageway. He says he turned left to ensure the safety of that vehicle, which put him into a slide again, and he skidded off into the verge, and hit the armco guardrail. He says he missed the rear of the four-wheel drive by 1.2 metres. A photograph tendered by the plaintiff showed the point at which his vehicle first struck the guardrail to be about three car lengths past the intersection with the road to Sonza Kennels.

6. It is common ground that the four-wheel drive vehicle that slowed on the highway and turned into the side road to Sonza Kennels was driven on the night of the accident by the defendant. It is common ground that there was a vehicle immediately behind the defendant's vehicle, which slowed down and then continued its journey, and has never been identified. It is common ground that there was then a Holden Commodore, driven by Mr Brown, which also slowed down. The plaintiff was driving behind Mr Brown.

7. The plaintiff's case is that the defendant slowed suddenly and turned without warning in such a negligent manner that the plaintiff could not safely bring his vehicle to a halt, and so caused the accident. The defendant denies liability (and in the alternative pleads contributory negligence), and says that he did indicate his turn and slow safely before executing his turn. The defendant says that the two vehicles immediately behind him were able to safely slow down, and says that the plaintiff was negligent in failing to notice the cars ahead slowing and proceeding at such a speed that he was forced into a skid to avoid a rear end collision. The defendant points to the well established obligation, which forms the basis of many of the personal injuries claims brought in this court, on a driver to leave sufficient space from the car in front to be able to safely stop without hitting the car in front.

8. The plaintiff in cross examination said that he only saw the tail lights of the commodore, being the car in front of him. He says that he did not see the tail lights of the vehicle in front of the commodore. He says he wasn't aware of the four wheel drive. He said

"I knew there was vehicles in front of me. It was dark. I couldn't distinguish, virtually, until I'd got right to the accident scene and what was actually there. I was very- very hard, very confusing. There was a lot of vehicles in one place."

9. The plaintiff is thus unable to say whether or not the defendant did indicate because he has acknowledged that he was not aware of what was happening in front of the commodore, and only was aware that there were vehicles in front of him.

10. The defendant gave sworn evidence that he did indicate before executing his turn, which he described as a safe ordinary turn. He was going with his wife to the south coast for a long weekend, and was going to the kennels to board their dogs. They had used the kennels before and were familiar with the turn off. He says that he was proceeding in traffic along the highway, that he slowed at the crest of Sparrow's Hill to about 95 kilometres an hour, knowing that the turn off was near, and when he saw the lights of the kennel, put on his indicators and commenced braking. He says he was conscious of vehicles following. He says that he turned smoothly, and then proceeded through the gate to the kennels, which is some distance from the roadway, when he heard a screech of brakes. He says he then looked in his rear view mirror and saw

"I'll say stopped, but they were slow traffic, you know, 10,20 kilometres an hour, the two vehicles that were directly behind me, starting to move off and they were proceeding past the entry point ..."

He then says he saw the plaintiff's vehicle

"...go past the entrance to Sonza Kennels on the wrong side of the road with smoke coming from what I could see to- perceived to be all four wheels."

He saw the plaintiff's vehicle hit the barrier beyond the entry point, and he saw the plaintiff get out of the car.

11. Mr Brown gave evidence in the plaintiff's case. He says that as he came over the crest at Sparrow's Hill traffic

"...started to bank up."

He said

"I had a Ford in front of me and then there was a four wheel drive further on in front of that car."

He described what happened as he came down the hill towards the left hand bend as follows in his evidence in chief

"I saw the tail lights in the car in front come on and then come on suddenly and then the four wheel drive turned and went."

Mr Brown applied his brakes heavily, and felt the sensation of the anti lock braking system of his late model car come into play. He was able to slow down safely and avoid any contact with the vehicle in front of him, but said that his braking was very heavy. He said that the four wheel drive turned off, the car in front then accelerated away, and he followed.

12. At the time when the traffic started to move off again, he says that the plaintiff's car came past

"...on the wrong side of the road come past us and he was under heavy braking, got out of control and he speared into the guard rail. He's bounced back, the cars turned around. The car in front kept going, it took off. We stopped."

He agreed that when the plaintiff's car came past him the defendant's car had already gone some distance down the dirt road towards Sonza Kennels.

13. Mr Brown says that he didn't see an indicator on the four wheel drive. He agreed that the only tail lights that he could see were the tail lights of the car in front of him. He agreed that he did could not actually see whether the four wheel drive had indicated or not, but that he assumed that it had not indicated because of the suddenness of the stopping of the car in front of him. He agreed in cross examination that the car in front of him may have been slow in its response.

14. Ms Bryson was the passenger in Mr Brown's car. She said that she saw the defendant's four wheel drive

"...hit its brakes very quickly, obviously looking for a turn right and then moved off again and then hit the brakes again quickly and then took off to the right causing ourselves and the car in front of us to brake very quickly to avoid hitting each other."

15. She did not see any indicators on the four wheel drive. She agreed that the tail lights of the four wheel drive were obscured by the car immediately in front, but said

"...but it was very, very dark so, if there was an indicator, I believe that we would've been able to see it flashing."

She then further agreed that her view of the indicators on the four wheel drive would have been obscured by the car in front.

16. The plaintiff's case is that the defendant was negligent in failing to indicate, and slowing and turning suddenly. It is not in dispute that the point at which he turned was a lawfully marked roadway leading from the highway to the kennels, a point at which motorists may lawfully leave the highway. His sworn evidence is that he had his indicators on. The defendant is a serving officer in the Royal Australian Air Force, and gave his evidence in a persuasive manner. There was nothing which emerged which would make me disbelieve the defendant's sworn evidence on the manner of his driving on the night of this accident.

17. This is not a case where I am confronted with the sworn evidence of a plaintiff which is contradicted by the sworn evidence of the defendant. The defendant says that he operated his indicators. No witness says that they observed the defendant to turn without indicating. The plaintiff says he only saw the tail lights of the vehicle in front of him, being the vehicle driven by Mr Brown. Mr Brown agreed that he could not see the indicators of the defendant, and he agreed that he had assumed that they were not in operation, but that he did not observe this himself. He agreed that the car in front of him may have been remiss and that this may have caused the sudden braking which he observed, and which required him to also brake suddenly, although safely in that none of these vehicles came into contact with the other. Ms Bryson agreed that she could not see the lights of the four wheel drive because her view as a passenger was obscured by the vehicle in front of her. The best evidence to support the proposition that the defendant did not indicate is that of Ms Bryson when she said that, because it was dark, if there had been an indicator she felt she would have seen it, although she went on to admit that her view would have been obscured. At best this is an inference drawn by Ms Byron which is contrary to the sworn testimony of the defendant.

18. On this evidence I am not satisfied that it is more probable than not that the defendant failed to indicate.

19. The plaintiff also says that the defendant stopped suddenly and unsafely. The defendant gave sworn evidence that this was not so - he says he was familiar with the general position of the turn off at the base of the hill, that he had been to the kennels before, and that he was mindful both of the stream of traffic behind him and the presence of his unrestrained dogs in the rear of his vehicle. His sworn evidence is that he slowed to take the turn in a safe manner.

20. The plaintiff again says that he did not see what happened in front of the vehicle in front of him, driven by Mr Brown. Mr Brown observed the sudden stopping action of the vehicle in front of him, but agrees, as does Ms Bryson, that his view of what the four wheel drive did was obscured. He agreed in cross examination that the sudden stopping which he observed could have been caused by the vehicle in front of him being insufficiently observant of the four wheel drive.

21. On this evidence I am not satisfied that it is more probable than not that the defendant slowed to take the turn in an unsafe manner. I therefore find that there is no negligence on the part of the defendant, and on this basis I find in favour of the defendant and enter judgment accordingly, with costs. If I be wrong in this conclusion, and the conduct of the defendant was such as to give rise to a breach of a duty of care, it would be necessary to consider the conduct of the plaintiff in relation to contributory negligence. Although I have found for the defendant it is appropriate, and in accordance with the practice of this court, that I go on to consider the issues of contributory negligence and damages.

22. If I be wrong in my conclusion that the evidence does not establish a breach of a duty of care by the defendant, it is necessary to consider the conduct of the plaintiff in the circumstances of this accident. The defendant has pleaded, in the alternative to a denial of breach of duty, that any injuries sustained by the plaintiff were contributed to or caused by the negligence of the plaintiff by way of:

"(a) Travelling at an excessive speed in the circumstances

(b) Failing to keep a proper lookout

(c) Travelling too close to the vehicle in front

(d) Failing to control his vehicle so as to be able to avoid the accident."

23. The defendant says that the plaintiff admitted, in his evidence in chief, that he had a clear view of at least 175 metres to the point where the plaintiff is said to have been slowing unsafely and turning without indicators. His evidence is that he observed the vehicle in front of him to brake once, and then to brake again. Mr Brown did not give evidence of double braking, but if I assume the plaintiff to be correct on his account, the plaintiff said

"If the Commodore had braked once I would have had ample time to stop but the Commodore braked once and then carried on and braked again. Now, I'd reduced my speed to 90 and I assumed that the Commodore had braked going across a crossing and then started to accelerate again. It wasn't until the second lot of brake lights come on that I realised there was danger ahead."

24. The plaintiff acknowledged that he was aware that there was a turn off at that point (which he had referred to as a crossing). He was aware that the car he was following, and whose brake light he was observing was at the end of a line of cars in front. He estimated that at this point he was about 50 metres behind the vehicle in front. On his evidence, he says that he saw that vehicle brake once at about the point of this "crossing" and assumed that it was then alright to proceed. This conduct, in my view, amounts to negligence on the part of the plaintiff, such that it would give rise to a breach of a duty of care if he had then collided with the rear of a vehicle in front. A driver proceeding on a highway at night observing a braking vehicle in front at the point of a known intersection or crossing, and at the end of a line of cars, cannot safely assume that this is only a minor slowing down, but must so control their vehicle so as to be able to deal with any dangerous situation that might develop.

25. Mr O'Rourke's description of the position in the lead up to the accident where he said

"I wasn't aware of the four wheel drive. I knew there was vehicles in front of me. It was dark. I couldn't distinguish, virtually, until I'd got right to the accident scene and what was actually there. It was very-very hard, very confusing. There was a lot of vehicles in one place",

further confirms in my mind the submission made by counsel for the defendant that the plaintiff was driving in an unsafe manner, in that he acknowledges that the situation in front of him was confusing, but assumed that it was safe to proceed with only minimal braking until it was too late. Mr Brown, assuming the defendant to have acted in the unsafe manner alleged, had sufficient time to brake safely and avoid the car in front of him. That car had sufficient time, if the defendant had acted in the unsafe manner alleged, to also have braked and avoided the defendant. The plaintiff continued, and was travelling at such a speed (he says 90 kilometres an hour) that his car went into a skid, which he measures at about 4 metres, and then continued to slide along the side of the road before hitting the armco barrier well beyond the point at which the defendant is said to have braked unsafely.

26. I am satisfied on all of the evidence that the plaintiff was not driving with sufficient care and that he was negligent in all the circumstances. This finding is based on the version of events given by the plaintiff. Mr Brown does not refer to braking once and then braking again, and Mr O'Rourke himself said that if Mr Brown had braked in one continuous action he would, he says, have been able to stop.

27. The defendant also laid emphasis on the plaintiff's eyesight at the time. The defendant tendered a letter written by the plaintiff's general practitioner to a firm of solicitors who acted for the plaintiff in relation to an industrial accident. The letter was dated 22 May 1998, and says

"The following note was provided for the patient, at his request, for the Bank this year:

Re: John O'Rourke

Mr O'Rourke has been a patient of this practice since 1993. He now suffers from diabetes, and almost total loss of vision in his right eye, which has occurred over the last six months, and despite laser therapy."

28. The plaintiff tendered a medical report, addressed to his present solicitors, and dated November 1998, from Dr Bills, his general practitioner. This report sets out his general practitioner's opinion both in respect of an industrial accident in November 1996 and the present motor vehicle accident. In this report his general practitioner stated that the plaintiff sustained a retinal venous sub branch occlusion in the right eye in the industrial accident which was

"...probably the result of trauma, as noted. He has significant loss of vision, and persisting macular oedema (central vision loss). This is unlikely to improve, now 18 months have elapsed."

29. The plaintiff denied that at the time of the accident he had problems with his vision. He said any difficulty he had with vision in his right eye was related to a diabetic condition that has resolved. No medical reports were tendered to support this assertion. Dr Bills in his report addressed this question, and said that in his view the loss of vision, which he said amounted to

"...a 15% to 24% whole body impairment from visual loss"

was not related to the diabetes, and noted that the plaintiff had at that time ceased being diabetic.

30. I am satisfied that the plaintiff did have problems with his vision at the time of the accident, and I am satisfied, having examined the various photographs of the accident scene and having had the advantage of the view proposed by counsel for the defendant, that the plaintiff was not keeping an adequate lookout, and failed to control his vehicle adequately. His evidence of only seeing a confusing scene of various cars ahead tends in my view to support the finding that he had a difficulty with his vision. If, as he says, he was some 50 metres behind the vehicle driven by Mr Browne, he ought to have been able to stop safely and in time. I find that the plaintiff was negligent. The apportionment legislation requires me in these circumstances to then proceed to an assessment of damages, and then to apportion liability.

31. The plaintiff's claim for damages is limited to a claim for general damages in respect of soft tissue injuries to the neck, back and left foot, and aggravation of pre existing lumbar spondylosis, and a claim in respect of out of pocket expenses. No claim was brought in respect of economic loss, the plaintiff having ceased work some years ago following an industrial accident which was the subject of a claim for damages which has been settled.

32. Dr Bills' report of November 1998 set out his conclusions in respect of the conditions that the plaintiff was then suffering, after the motor vehicle accident, as a consequence of the industrial accident. He found, in addition to visual impairment, headaches and reactive depression and significant injuries to his right upper limb, that the plaintiff sustained

"...spinal injuries, cervical, thoracic and lumbar spine".

He reported constant pain, and restriction of movement to both the lumbar and cervical spine. He also found that the industrial accident resulted in osteoarthritis and degenerative changes to his knees and hips.

33. Dr Bills then referred to the motor vehicle accident. He said he saw the plaintiff on 7 July following the accident on 3 July.

"His presenting complaint was of lower back pain, with some increase pain compared to his previous levels, but no motor or sensory change...On assessment he had some increase in neck pain and limitation of movement, as well as low back pain and tenderness."

Dr Bills then states, in November 1998

"I have not seen him for review after the accident, and cannot comment on extent of disability at this time, but it would be reasonable to expect that these were largely soft tissue injuries, or aggravations of pre existing conditions, and should settle given time. How much time, and how aggravated by the injury I cannot say. It is significant that he already has so much pathology and such a loss of function."

34. There is also a report from Dr Hannaford, an orthopaedic surgeon, who reported in December 1998. He took a history of aggravation of pain. He said

"It is important to understand that historically Mr O'Rourke had suffered long term lumbar spondylosis with chronic lower back pain. He had also had some anterolateral thigh pain following his total hip replacement. He claims however that both of these problems were significantly aggravated following the motor vehicle accident. It is easy to accept this at face value as there was obviously a significant impact and any pre existing lumbar spondylosis could be aggravated by such a traumatic event and any pre existing lumbar spondylosis could be aggravated by such a traumatic event."

35. Dr Hannaford noted that the plaintiff was taking simple analgesia, and said he may require intermittent physiotherapy. He concluded

"Historically it appears that Mr O'Rourke has suffered an aggravation of lumbar spondylosis consistent with a motor vehicle accident as described. It is therefore aggravation of a pre existing condition."

36. The only other reports tendered in support of the plaintiff's case come from his daughter, who is a remedial therapist and herbalist. These reports state that treatment commenced after clearance by a doctor, but there is no report from a doctor recommending treatment by such a practitioner. The report of 23 February 1999 notes a previous history of an industrial accident with damage to the right arm, and a hip replacement. Given Dr Bills' report, I do not accept this as an accurate history. It reports very significant restrictions of movement based on the accident. I am not prepared to accept a report from a remedial therapist and herbalist in preference to a report from a medical practitioner or specialist, and I have particular concerns given that these reports, and regular treatments, have come from the plaintiff's daughter, with whom he resides, rather than a professional at arms length from the plaintiff and in a professional relationship only with the plaintiff.

37. The plaintiff denied that he had problems from the industrial accident apart from his arm. He was served with a notice to produce documents relating to the claim that he brought in respect of this accident. The notice to produce was served a month before this hearing commenced. No documents were produced. He said he had destroyed all documents relating to the action, and that when he rang his former solicitors on receipt of the notice to produce he was told that the documents they held could not be immediately obtained. That was the extent of his inquiry. He did not ask for the documents or ask for steps to be taken to have them produced. I am entitled to draw the inference that the documents would not have assisted the plaintiff's case.

38. Dr Bills, both in his letter produced in the defendant's case and in his report to the plaintiff's present solicitor, sets out a comprehensive catalogue of previous injuries to the plaintiff and symptomatic degenerative changes to his spine.

39. The plaintiff was examined by Dr Keiller on behalf of the defendant. He records a history of headaches and stiff and painful neck after the accident, as well as low back pain. He took a history of an injury to the arm in the industrial accident in 1996, and

"...some backache after that but it was not severe and it soon resolved completely."

He said that apart from this he had no troubles at any of the sites of his presenting complaints from other non traumatic causes. On the basis of this history Dr Keiller concluded that the plaintiff

"...sustained soft tissue injuries to his neck, left shoulder and low back in the accident described. He aggravated his right hip and left ankle."

He noted degenerative changes on x rays and said

"Although he had significant degenerative changes present prior to injury, especially in his neck, they were previously asymptomatic, and he had never needed treatment in the past."

40. Dr Keiller was then provided by the defendant with copies of Dr Bills' reports as tendered in these proceedings. In his report of 12 August 1999 he noted Dr Bills' history of prior neck pain and limitation of range of movements of the cervical and lumbar spine before the motor vehicle accident, and the complaint of foot pain. He said

"I must, therefore, amend my opinion of 19 May this year. The previous degenerative changes in the low back and neck, and in his left foot were certainly painful before the more recent trauma. I agree with Dr Bills' expectation that aggravation at those sites was `largely soft tissue' and should settle given time."

41. The plaintiff denied that he had been evasive in his history to Dr Keiller. It is true that he had only just been released from hospital at the time of his first consultation with Dr Keiller from a totally unrelated hip replacement operation, and I do not make any adverse finding in relation to Dr Keiller's original history. I am satisfied, however, that on the basis of the full history, which I find to be that set out by Dr Bills, the plaintiff sustained in the motor vehicle accident only soft tissue injuries and an aggravation of an underlying symptomatic degenerative condition.

42. The best evidence as to the plaintiff's condition before and after the accident would be from Dr Bills, who had been a longstanding general practitioner. He only saw him twice after this accident, as set out in his report. The plaintiff says he was dissatisfied with Dr Bills, and has since attended other doctors. There is a Medicare schedule that shows visits to Dr Cramer, Dr Gillespie, and Dr Cross. No reports have been tendered from these doctors. The plaintiff denied that he changed doctors for any reason related to the litigation, and I make no adverse finding. But I am left with the opinion of his longstanding general practitioner that the effects of the motor vehicle accident were soft tissue injuries or aggravations of a pre existing condition that should settle, and an absence of reports from other doctors.

43. The principles to be applied in determining compensation in personal injuries cases have recently been summarised by McHugh J in Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49 where his Honour said (at 54):

"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, `in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'."

44. In this case I find that the plaintiff did sustain soft tissue injuries in the accident as described by Dr Bills and Dr Keiller. I find that this included an aggravation of a previously symptomatic degenerative condition of his spine. In view of his documented condition prior to the accident, and the lack of comprehensive medical evidence to support ongoing worsening of his condition, I am satisfied that these conditions were temporary only, and assess his claim for general damages on that basis, and award the sum of $20,000, with $15,000 being for past loss, generating interest of $385, a total award of $20,385.

45. Out of pocket expenses were claimed in the sum of $1,216. This includes two visits to Dr Bills, in the amount of $42.30, and two visits to Dr Hannaford, in the sum of $54.85, which I award. It also includes claims for visits to Drs Cramer, Gillespie and Cross. No reports were tendered from these doctors. Given the plaintiff's extensive non accident related health problems I am not satisfied, in the absence of anything from the doctor, that these visits are related to this accident. There is also a claim for $840 in relation to treatments by the plaintiff's daughter, who lives with the plaintiff, and who is described as a practitioner in remedial massage and a herbalist. Although she states that her treatments were approved by a doctor, no evidence was presented to support this. I am not satisfied that these treatments are the responsibility of the present defendant, and I make no award in respect of this sum. This amounts to a total award for out of pocket expenses in the sum of $97.15.

46. This amounts to a total award of $20,482.15.

47. I have however found that the plaintiff was himself negligent, and accordingly this amount must be reduced. On my previous findings, it seems to me that the accident was overwhelmingly the fault of the plaintiff. Even if I accept the worst case scenario in respect of the defendant's conduct, his negligent conduct in suddenly and without warning stopping and turning without indicating occurred in circumstances where vehicles travelling immediately behind him were able to slow and stop and so avoid the accident. The plaintiff, who was further behind, says that he could see a confusing scene ahead, but he did not move immediately to bring his vehicle to a halt when he saw, on his version, the first of the stop lights of Mr Brown. I would have attributed negligence at one third to the defendant and two thirds to the plaintiff if I had been satisfied that the defendant had been negligent at all.

48. In this case I am not satisfied, on the balance of probabilities, that the defendant was in breach of his duty of care to the plaintiff. There shall be judgment for the defendant, with costs.

I certify that this and the sixteen (16) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 12 November 1999

Counsel for the Plaintiff: Mr R Mildren

Instructing Solicitors: Snedden Hall & Gallop

Counsel for the Defendant: Ms C Adamson

Instructing Solicitors: Phillips Fox

Dates of hearing: 18 and 19 October 1999

Date of judgment: 12 November 1999