Wilson v Heinze & anor [2000] ACTSC 7 (11 February 2000)

Last Updated: 29 February 2000

Wilson v Heinze & anor [2000] ACTSC 7 (11 February 2000)

CATCHWORDS

NEGLIGENCE - Personal injury - Motor vehicle accident - Multiple vehicle rear end concertina type collision - Plaintiff a passenger in a vehicle in a line of traffic - Whether an unidentified vehicle ran into the back of the first defendant's vehicle causing it to collide with the rear of the vehicle in front of it - Whether the unidentified vehicle contributed to the subsequent impacts - No issue of principle.

No. SC 1059 of 1996

Coram: Master T Connolly

Supreme Court of the ACT

Date: 11 February 2000

IN THE SUPREME COURT OF THE )

) No. SC 1059 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: VIRGINIA WILSON

Plaintiff

AND: JOHN WAYNE HEINZE

First Defendant

AND: THE NOMINAL DEFENDANT

Second Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 11 February 2000

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff against the first defendant, with damages to be assessed.

2. Judgment be entered for the second defendant.

3. The question of costs is reserved.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on the afternoon of 10 October 1990 at Terrigal in New South Wales. The plaintiff was a passenger in a vehicle that was involved in a multiple vehicle rear end concertina type collision. It is not in issue that the plaintiff's vehicle was hit from behind by a vehicle driven by a Mr Hodder. Nor is it in dispute that Mr Hodder's vehicle had been forced forward because it had been struck from behind by a Telstra service van driven by Mr Heinze, the first defendant. Mr Heinze says that his vehicle had been hit from behind by an unidentified vehicle, and as a result the present action involves both Mr Heinze and the Nominal Defendant. The Nominal Defendant denies liability, saying that, even if there was an unidentified vehicle which came into contact with Mr Heinze, the first defendant was driving in a manner and at a speed that made the collision with Mr Hodder and the subsequent events inevitable, and any negligence by the driver of the unidentified vehicle was not a cause of the injuries sustained by the plaintiff. The plaintiff has also had the misfortune to be involved in other motor vehicle accidents, and the assessment of damages will be heard together with these other claims. The parties agreed that as this liability issue needed to be resolved, there would be costs advantages in holding a separate hearing to resolve the issue of liability, and then to proceed to an assessment of damages with the other matters. I accordingly ordered that the matter should proceed on the question of liability only.

2. The accident occurred on the afternoon of 10 October 1990 at Terrigal Drive Terrigal. The plaintiff was a passenger in a vehicle driven by Mr Simms. They were on holidays in the Terrigal area, and were returning to their hotel in the town in a line of cars. It was a fine and sunny afternoon. Apparently there were some roadworks in progress, and a line of cars had developed on the single lane leading into the town. Ms Wilson recalls being stationary with a car in front and a car behind. Mr Simms recalls a number of cars in front, and a car then coming to a halt behind him. He then noticed a van coming towards the line of cars from behind. He says that he first observed the van "a good 100 metres" back. He said

"I noticed that when the van was approaching the van was coming at a very great speed, enough to realise that he was going to impact with us".

He says that he had enough time to warn the plaintiff, who was wearing a seat belt, to brace, before the impact.

3. Mr Hodder, who was driving the Rover sedan which was forced into the car in which the plaintiff was a passenger, also gave evidence. Mr Hodder recalls traffic being in a line in stop start conditions, and it was his belief that this was due to roadworks. He recalls coming to a halt behind the Holden sedan in which the plaintiff was a passenger. I am satisfied that he stopped a safe and proper distance behind this vehicle, and no one made any criticism of Mr Hodder's conduct on the day. Mr Hodder gave his evidence in an impressive manner, and I am entirely satisfied that he was a witness of truth. He was not aware of vehicles behind him, but said

"...immediately after I stopped there was a squeal of tyres from behind me and I didn't look in the rear view mirror then - I crunched because I thought I knew what was coming and we suffered a violent shunt from behind and my car was pushed forward into the car in front of it."

He described the impact as "very severe."

4. Mr Hodder, who is an engineer by occupation, says that he noticed that both ends of his vehicle were severely damaged - obviously a matter of some concern as he is something of an enthusiast for Rover vehicles. He observed that the Telstra van, a Toyota Hi ace model, had minor damage to its front, and he observed no damage to the rear of the van. He noticed two vehicles stationary behind the van, in the line of vehicles. The first vehicle he described as being fairly close to the van - with walking space between them, and with damage to the right hand indicator lens, observing pieces of glass on the road. He thinks this was a Sigma sedan. This is the unidentified vehicle that the first defendant says pushed him and contributed to the accident.

5. Mr Hodder says that he thinks that these two vehicles then drove away. He looked behind the van and

"I found skid marks behind the Toyota van finishing at its back wheels about six metres long."

He said that there was about 130 or so metres of clear view behind the scene of the accident so that an oncoming vehicle would have had clear vision of the stationary line of cars. Mr Hodder was asked whether he had a conversation with the driver of the Telstra van, and said

"Yes. He said he was sorry and I was rather upset at the time and I sort of indicated that sorry was one thing but the damage to my car was quite another and we didn't really have much more than that to say to each other because I was very cross."

Mr Hodder did acknowledge in cross examination that Mr Heinze did say that a car had collided with the rear of his van.

6. Mr Hodder was asked, given his expertise as a mechanical and electrical engineer, whether he could comment, based on the damage he observed on the Sigma sedan, as to the impact that had on the Telstra van. He said

"Well, I have been involved in other accidents which I know the severity of damage to front ends from various collisions with animals and with cars and the front end of the vehicle behind the Telecom van gave no indication that it had been involved in a serious collision or that it could possibly have pushed the Telecom van forward."

7. In cross examination by the second defendant he said that the damage he observed to the indicator lens of the Sigma sedan was

"...the sort of damage that I would expect to result if the Sigma gently rolled into the back of the Toyota."

He was then asked

"And certainly not of sufficient force to have caused the ultimate collision that you experienced with the van"

to which he replied

"Not by any means."

8. Mr Heinze gave evidence of his recollection of the events of the day. He described the events as follows:

"I was proceeding east along Terrigal Drive...It was a stop/go situation. The road works ahead on the corner of Charles Cove and Terrigal Drive. We had started off again just around the bend. The car behind me was sitting right on my rear end. I kept glancing in my rear vision mirror and by the time I got towards Serpentine Road I turned around from looking in the rear view mirror and noticed the traffic ahead had stopped again and applied my brakes. As I applied my brakes I felt a small shunt from behind and I started to drift to the left and I hit Mr Hodder."

9. In cross examination Mr Heinze agreed that as he was approaching the stationary vehicles he was looking behind, and that when he looked up he saw that the vehicles in front of him had stopped. He agreed that there was a long clear view ahead in the lead up to the accident scene, but that he was looking behind. He was asked

"And by that stage it was too late, was it not"

to which he replied

"It was."

He agreed with the proposition put by counsel for the plaintiff that,

"...in retrospect because you knew that there were road works being carried out and it was a stop start situation,"

he was travelling too fast in the circumstances.

10. I am satisfied from this evidence that the first defendant was negligent in that he was concentrating on observing the vehicle behind him in his rear view mirror rather than observing traffic ahead in what he knew to be a stop go situation, and that he was travelling too fast in the circumstances, and I am thus satisfied that liability is established against the first defendant. This primary liability was not denied, the issue being whether the Sigma was also liable for the accident.

11. Mr Heinze was clear in his recollection that he felt the "small shunt" after he had applied his brakes. I am satisfied from the evidence of Mr Simms and Mr Hodder that, after Mr Heinze applied his brakes, he went into a skid but was unable to stop before coming into contact, with some force, with Mr Hodder's vehicle. Mr Heinze acknowledged that his van went into a skid, but could not recall whether he was in a skid when he felt the shunt.

12. In his evidence in chief Mr Heinze was asked whether he would have been able to stop if he had not been subject to the shunt from behind. He answered

"At the time I thought I may have been able to stop."

13. I accept that this was a truthful answer, and that Mr Heinze was also truthful in cross examination. I note that this statement, the high water point in the case against the Nominal Defendant, is a carefully qualified answer. It was put to Mr Heinze in cross examination by counsel for the plaintiff that the shunt

"...had no effect whatsoever on the forward impetus of your car-the little shunt"

to which he replied

"Probably not."

He agreed in cross examination by counsel for the Nominal Defendant that

"...on your own assessment of it, from your own observation, it was the force applied by your van into the rear of the Rover that caused it to ricochet into the rear of the one in front of it, the Commodore."

14. I accept this evidence, which is consistent with Mr Hodder's observations. I am satisfied that the first defendant failed to properly observe the line of stationery vehicles until it was too late, and then braked heavily, going into a skid but still coming into collision with Mr Hodder's vehicle with sufficient force to propel him into the vehicle in which the plaintiff was a passenger.

15. In all of the circumstances of this case I am satisfied that the conduct of the unidentified Sigma, which I am satisfied did come into contact in a minor way with the van driven by the first defendant after the van braked suddenly and violently, had no contribution whatsoever to the subsequent impact of the van into Mr Hodder's car, which caused Mr Hodder's car to come into collision with the car in which the plaintiff was a passenger. As Mason CJ stated in March v Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at at 515:

"The common law tradition is that what was the cause of a particular occurrence is a question of fact which `must be determined by applying common sense to the facts of each particular case'."

16. In this case, I find that the unidentified vehicle came into contact with the van as the van was heavily braking and in a skid, just before the point at which the van impacted with Mr Hodder's car, and that the impact was minor. I find that the impact did not contribute to Mr Heinze's van colliding with Mr Hodder's car. I find that there is no liability in respect of the nominal defendant.

17. It is thus appropriate to order that judgment be entered for the plaintiff against the first defendant, with damages to be assessed, and that judgment be entered for the second defendant. I will hear the parties as to the question of costs.

I certify that this and the six (6) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 11 February 2000

Counsel for the Plaintiff: Mr M Maxwell

Instructing Solicitors: Watling Roche

Counsel for the First Defendant: Mr I G Harrison SC

Instructing Solicitors: Ken Cush & Associates as agents for

P V McCulloch & Buggy

Counsel for the Second Defendant: Mr D Cutler

Instructing Solicitors: Elrington Boardman Allport as agents for

Stewart Cuddy & Mockler

Dates of hearing: 8 December 1999

Date of judgment: 11 February 2000