Darmody v Laduzko [2008] ACTSC 2 (16 January 2008)

Last Updated: 21 February 2008

CRAIG JOSEPH DARMODY v MARK LADUZKO

[2008] ACTSC 2 (16 January 2008)

TORT - Negligence - motor vehicle accident - plaintiff commenced overtaking manoeuvre - did not realise defendant's vehicle would be making right hand turn - whether defendant gave sufficient notice of intention to turn.

Australian Road Rules, r 48

No. SC 850 of 2003

Judge: Higgins CJ

Supreme Court of the ACT

Date: 16 January 2008

IN THE SUPREME COURT OF THE )

) No. SC 850 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: CRAIG JOSEPH DARMODY

Plaintiff

AND: MARK LADUZKO

Defendant

ORDER

Judge: Higgins CJ

Date: 16 January 2008

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the defendant.

1. By originating application dated 22 December 2003, the plaintiff claims damages for personal injury arising from a motor vehicle accident which occurred at about 11.45 am on the 30^th day of June 2001.

2. The plaintiff alleged that he was, at that time, the driver of a motor vehicle, a 1986 Mazda panel van with NSW registration VHC 160 (the Mazda). The defendant was the owner of a motor vehicle, a Toyota Land Cruiser light truck ACT registration YAB 00R (the Toyota), then being driven by Ms Josephine Laduzko, his spouse. Both vehicles were proceeding in a northerly direction on the Gundaroo Road in the State of New South Wales.

3. The accident occurred at a point about four kilometres north of Sutton approaching the intersection of Gundaroo Road with Vaughan Drive. The plaintiff intended to continue towards Gundaroo. It was the plaintiff's evidence that the Toyota was travelling at about 80 km per hour. He was travelling at about 100 km per hour. He indicated to overtake. At that time a vehicle turned right from Vaughan Drive into Gundaroo Road in front of the Toyota and he backed off the overtaking manoeuvre until that vehicle passed. Once it had done so, he indicated again and pulled out once more to overtake. As he was 10 - 15 metres away from commencing to pass the Toyota, he observed that the vehicle's right hand blinker had activated as had the brake lights. He applied his brakes hard, believing the Toyota was about to turn in front of him. At that point he had accelerated to about 95 km per hour. That manoeuvre resulted in him losing control of the Mazda. It was heavily laden with equipment. The rear wheels appeared to lock up. He diverged left spinning 180 degrees, left the roadway and collided with a telegraph pole south of the Vaughan Drive intersection. The pole was very close to the western edge of the paved surface of the roadway.

4. The plaintiff was rendered unconscious in the accident. When he woke up, police, ambulance and fire brigade were in attendance. He was thereafter conveyed to Queanbeyan District Hospital, having suffered significant injuries.

5. There was a significant dispute as to liability. There was no dispute that a driver before diverging to the right must give a change of direction signal far enough in advance of the intended turn to give sufficient warning to (inter alia) other drivers (see Rule 48 - Australian Road Rules).

6. There was no dispute that the defendant had intended to turn right into the entrance driveway of "Sutton Lodge". Sutton Lodge was a property the existence of which the plaintiff was aware. The distance of it from his vehicle away at the time he commenced the overtaking manoeuvre he estimated at about 200 metres. He had been following the Toyota at 75 km per hour and then accelerated, he believed, to "85/90. 95 at the most".

7. Before the right hand turn signal was activated, the Toyota, he said, diverted slightly to the left as if to turn left into Vaughan Drive.

8. After the accident he recalled speaking to Constable Gilroy. He was asked what happened and recalled responding, "I don't know what happened. I must have fallen asleep". He did not know why he said that. He had been unconscious after the accident but had not fallen asleep at the wheel before it.

9. In cross-examination by Mr Ryan, for the defendant, he agreed that he was aware that vehicles from time to time entered or left the entrance driveway of Sutton Lodge either with horses or after obtaining hay. He was taken through his days work, apparently to found a suggestion that he may, indeed, have fallen asleep. He agreed that it was in fact a distance of about 100 - 120 metres from the Sutton Lodge sign at the side of the road to the entrance driveway. He agreed that had the defendant's driver applied her brakes and signalled at the sign, he would have had sufficient warning of her intention to turn into Sutton Lodge. He had estimated, on his claim form, that the signal lights he saw came on about 40 metres from the entrance driveway and that it was opposite that sign. However, he later stepped out the distance between the sign and the driveway and concluded that it was, in fact, between 100 and 120 metres. At the time the Toyota's signal lights came on, the plaintiff had accelerated to close the gap between the two vehicles to 10 to 15 metres and was crossing the centre line.

10. The driver of the Toyota, Ms Laduzko, made a statement shortly after the event to Senior Constable Gilroy. She stated that, at the time of the accident she was aware of the Mazda coming up behind her. She was "doing the speed limit 100". She continued "... and I braked honestly I don't think he got enough warning from me".

11. She continued, when asked if she could say anything else about the accident:

A: No, I braked to go into Sutton and he was close to me and the van just lost it. It was unfortunate.

Q: Do you think he would of (sic) seen your right signal to turn?

A: As in close because he couldn't see my indicator, no not that close. I think he had enough time to see me turning. He wasn't tailgating me, he was pretty close but not that close.

Q: In your opinion, what caused the accident?

A: I think me turning abruptly into Sutton Lodge and him being too close.

12. The plaintiff, when questioned on this critical point, conceded that the Toyota did not activate the right turn blinker and immediately veer right. There was then, possibly, up to 100 metres before the entrance driveway would have been reached, though he, apparently, underestimated that distance.

13. It is the case that the plaintiff told Constable Gilroy of the accident scene that he had, or believed he had, fallen asleep. That was stated at a time when the plaintiff was, at least, suffering serious injury. It would not be fair, in my view, to take that as a real recollection on the part of the plaintiff as to how the accident occurred.

14. I consider the statement made on 9 September 2001 to Constable Gilroy by the plaintiff to be a more accurate version of his recollection. Indeed, it is quite consistent with Ms Laduzko's version of events as stated by her to Constable Gilroy. The plaintiff's statement was:

I backed off and pulled back in and waited for the (sic) car to come past [that is, vehicle entering from Vaughan Drive]. As the car came past I put my blinker and, and (sic) just after their blinker and break (sic) lights came on.

I instantly applied the breaks (sic) which had little effect, skidded a couple of car lengths and then took my foot off the break (sic). The car turned and just shot off the road, My wheel (sic) were already part off the road and when I took my foot off the break (sic) she just took off.

15. He did suggest in evidence, in answer to Mr Ryan, that he believed that the Toyota had speeded up as he approached to overtake. There is no support for that assertion. Indeed, it is inconsistent with the case the plaintiff proposes, namely, that the Toyota without adequate warning suddenly embarked on a divergence to the right (or appeared to be about to do so) just as he was about to overtake.

16. Ms Laduzko gave evidence for the defendant. She had, of course, been the driver and it is essential for the plaintiff to establish that she had been guilty of some degree of negligence in the driving of the Toyota for him to succeed. Of course, a finding of negligence on her part would not preclude a finding of contributory negligence on the part of the plaintiff.

17. She said that when the vehicle turned in front of her from Vaughan Drive, she had "slowed down slightly to accommodate that turning, at which point I put my indicator on and then proceeded to brake to turn into Sutton Lodge". She formed the impression that the plaintiff had failed to realise that she was slowing and turning.

18. She considered there was a risk of collision between the two vehicles. That, of course, was also a concern expressed by the plaintiff.

19. What really happened? It seems to me each of the two drivers gave an honest account from his or her perspective as to what occurred. It also seems to me that each has attempted to accurately describe what happened. Indeed, allowing for their different points of observation, each is factually accurate.

20. It seems to me the plaintiff was determined to overtake the Toyota. It was travelling relatively slowly by the time he approached the rear of it. He did not know if it was going to proceed along Gundaroo Road or turn left into Vaughan Road but neither option was of concern to his safety. Clearly, he did not consider that the vehicle would turn right into Sutton Lodge. He did, however, know that that property was there.

21. Ms Laduzko saw the plaintiff looming up behind. She wanted to turn right into Sutton Lodge. Both vehicles slowed because of the vehicle emerging from Vaughan Road turning right. Both had to wait for it to pass. When it did, the plaintiff resumed his overtaking manoeuvre by accelerating closer to the Toyota and signalling right. At the same time, and about 100 metres from the entrance driveway, Ms Laduzko, as she was obliged to, gave notice of her intention to turn right by so signalling and commencing to brake. The relevant signal lights illuminated. The plaintiff saw them.

22. At that point, he realised that he should not pull out to pass. He decided to drop back, thus permitting Ms Laduzko to make her turn. However, because he believed, by then, that he was too close to the rear of the defendant's vehicle, he panicked and braked heavily. Usually that would have succeeded in safely avoiding any collision. Indeed, there was no collision between the two vehicles. However, according to the plaintiff, and I accept this as truthful and accurate, his load, being tools and equipment, appeared to shift with the result that, as Ms Laduzko also perceived it, his vehicle "lost balance" on the roadway, the brakes grabbed, the vehicle skidded and left the roadway striking a power pole in a 180 degree turn. I agree with the plaintiff that the pole was unsafely sited as a result of previous roadworks too close to the surface of it, but that is not the fault of Ms Laduzko.

23. Mr Ryan, of course, submitted that there was no evidence sufficient to prove, on the balance of probabilities, that Ms Laduzko had given inadequate notice of her intention to turn. Indeed the plaintiff conceded that, if the driveway was 100 metres away, as it appears it was, he had sufficient notice of her intention to turn. As a rule of thumb, the standard is five seconds warning. That would have required about 110 metres. However, it was the plaintiff's evidence that he paced out the distance at between 100 - 120 metres. Accordingly, I am not satisfied Ms Laduzko gave insufficient warning.

24. There is nothing else that I can perceive that she did or omitted to do which would constitute negligence. The effective cause of the accident was the plaintiff's decision to overtake from which he could not safely withdraw, as it happened, by reason of the condition of his vehicle and its load.

25. It follows that I am not satisfied that the plaintiff has proved that Ms Laduzko was guilty of negligence so as to fix liability on the defendant for the unfortunate consequences to the plaintiff. That is not to say that the plaintiff acted unreasonably but he has to prove more than an absence of negligence on his part. He must prove positively that the defendant's agent, Ms Laduzko, was negligent.

26. That he has failed to do. There will be judgment for the defendant. I will hear the parties as to costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 16 January 2008

Counsel for the plaintiff: Mr R Mildren

Solicitor for the plaintiff: Meyer Vandenberg

Counsel for the defendant: Mr P D Ryan

Solicitor for the defendant: Moray & Agnew

Dates of hearing: 19 and 20 September 2007

Date of judgment: 16 January 2008