SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: Boyce v Deem & Anor [2002] QSC 402 PARTIES: FILE NO/S: SC No 4884 of 2001 DIVISION: PROCEEDING: ORIGINATING COURT: CAMERON JAMES BOYCE (plaintiff) v BARRY COLE DEEM (first defendant) and SUNCORP METWAY INSURANCE LTD ACN (second defendant) Trial Division Trial Brisbane DELIVERED ON: 5 December 2002 DELIVERED AT: Brisbane HEARING DATE: 31 July, 1 August 2002 JUDGE: ORDER: Ambrose J I give judgment for the plaintiff against the defendant in the sum of $171, CATCHWORDS: NEGLIGENCE Road accidents action for damages for injuries sustained in a road accident where plaintiff delivering mail by motorcycle proceeded around corner of T- intersection where defendant driving truck approaching corner moved to wrong side of road to avoid parked cars and collision occurred whether defendant took sufficient care to avoid an accident occurring whether plaintiff unreasonably failed to perceive a risk of collision whether plaintiff should be liable as contributor to accident Traffic Regulation 1962 (Qld), s 4CA(1), s 34F(2) COUNSEL: SOLICITORS: Sibley v Kais (1967) 118 CLR 424, considered P Goodwin for the plaintiff W Campbell for the defendants Murphy Schmidt for the plaintiff Walsh Halligan Douglas solicitors for the defendants

2 2 [1] AMBROSE J: On 23 August 1999 the plaintiff was working as a postman delivering mail by motorcycle in the Caloundra postal district. He was then nearly 19 years of age. He was experienced in riding the sort of motorcycle he was using to deliver mail. His family had been involved in postal deliveries by the use of such motorcycles over the years and he had learnt to ride them on his parent s acreage property before he had obtained a licence. He said he had obtained his motorcycle licence between 6 and 12 months prior to the time of his injury. [2] He could complete his postal delivery run on the date of his accident in perhaps half a day. At the time of the collision of his motorcycle with a truck driven by the first defendant he had completed about the first 15 minutes of his mail delivery run. He was familiar with the mail run and had been delivering letters to residences on it over a period of some weeks. [3] On the day in question he rode down a residential street called Athenree Road which it was agreed had a width of about 5 metres from kerb to kerb. His mail delivery required him to travel to residences in Donegal Court access to which was obtained from Athenree Road. [4] He had ridden down Athenree Road to its T-intersection with Donegal Court. He turned left out of Athenree Road into Donegal Court where he had to deliver mail to three houses. The last house to which he delivered mail was Number 6 in Donegal Court which was on the corner of Donegal Court and Athenree Road opposite the corner around which he had travelled to gain access to that Court. He delivered letters to two other houses in Donegal Court and then made his third delivery to a letterbox at Number 6 Donegal Court. He then proceeded back to the bitumen surface on the corner of Donegal Court and commenced to turn left back into Athenree Road to make his next delivery to a house in Athenree Road some little distance from that corner. [5] I am satisfied that as the plaintiff made a left hand turn out of Donegal Court back into Athenree Road he probably kept within from 0.5 to 0.8 of a metre of the kerb at that T-intersection which is best illustrated in photograph 4 in exhibit 2. I am satisfied that before the plaintiff commenced to make his left hand turn out of Donegal Court into Athenree Road he stopped and looked right and then left and then right and as he entered into and proceeded upon Athenree Road he was looking to his left and then straight ahead. [6] I accept the evidence of Mr Ferrer that when the plaintiff was injured there were two cars parked partly on and partly off the roadway outside his residence in Athenree Road as shown in photographs 1, 2 and 3 of exhibit 2. Those cars were owned by Mr Ferrer. A third car shown parked wholly on the roadway in those photographs in exhibit 2 was not parked there on the occasion of the plaintiff s injury occasioned by the collision. [7] The plaintiff having turned left out of Donegal Court into Athenree Road steering his motorcycle so that it was from 0.5 to 0.8 of a metre from the kerb on his left hand side, it follows that between his motorcycle and the right hand kerb of Athenree Road was a distance of something over four metres between 4.2 and 4.5 metres as he straightened up into that road. However looking at photographs 1, 2 and 3 of exhibit 2 that trafficable distance would have been reduced by roughly half the width of each of Mr Ferrer s cars which straddled the kerb. Doing the best I can

3 3 in the absence of evidence as to specific measurements taken, I infer that the smaller blue Daihatsu vehicle protruded about 0.6 of a metre over the kerb while the Volvo motor vehicle protruded about 0.95 of a metre beyond that kerb. [8] It follows that as the plaintiff straightened his motor cycle up between 0.5 and 0.8 of a metre from the left hand kerb there would have been a trafficable distance of from 3.3 to 3.6 metres between his motorcycle and the closest stationary car (the Volvo) owned by Mr Ferrer straddling the right hand kerb. [9] Just as the plaintiff was straightening his motorcycle up after it had turned the corner into Athenree Road, it and his right leg came into collision with the front of the tray on the driver s side of the truck driven by the defendant who said its width was 2.7 metres. I infer that the damage shown to the bottom right side of the front wheel fork of the motorcycle shown in exhibit 8 was caused by the impact. [10] Although exhibit 12 tendered through the defendant shows a truck taking the course that the defendant said he took on the day of the collision that truck in fact was not the one being driven by the defendant. The truck driven by the defendant at the time of the collision is the one shown in the video taken that day shortly after the collision which is exhibit 8. If the road were 5 metres wide from kerb to kerb where the truck was parked I have real reservations as to the reliability of the defendant s evidence that it was 2.7 metres wide. On the video of the stationary truck which is exhibit 8, its drivers side clearly does not protrude sufficiently from the kerb to its left to reach the centre of the roadway which would of course be 2.5 metres from that kerb against or near which the truck was parked. [11] Copies of subdivisional roadworks and drainage plans admitted by consent indicate that Athenree Road as planned had a width of 5 metres between kerbs. I infer that the agreement between the parties that it had that width was based upon the content of those plans Mr Ferrer gave evidence that its width was measured by a police officer after the collision but no evidence of that measurement was given. If the width of the truck was measured by anybody at the scene, no evidence of that width was given either. [12] I was informed that the parties agreed that the defendant s truck was 2.7 metres wide; for the reasons I expressed in paragraph 10 I have reservations as to the weight that should be given to this agreement. In light of the evidence given by Mr Ferrer that his Volvo was 1.9 metres wide and his Daihatsu was 1.2 metres wide. I also treat with caution the agreement that they were approximately 1.5 metres wide. [13] By far the most helpful pictorial evidence as to the approximate point of impact is the edited video taken of the scene shortly after the collision which is exhibit 8. That video shows the injured plaintiff lying wholly on the grass footpath in Athenree Road about 4 or 5 feet from a green bushy tree shown near an inlet culvert in photograph 6 in exhibit 2; it shows his feet near the concrete kerb on that road and on the other side of the inlet culvert to that from which photograph 6 in exhibit 2 was taken. It also shows his damaged motorcycle wholly on the road surface close to that side of the inlet culvert opposite to that on which the photographer was standing and if not completely, almost completely around the corner of Athenree Road and Donegal Court.

4 4 [14] I accept the evidence of Mr Ferrer that the approximate point of impact was opposite his 2.5 metre wide concrete driveway giving access to his garage which is shown in photographs 5 and 6 in exhibit 2 between his blue Daihatsu and his fawn Volvo shown in those photographs. [15] I reject the evidence of the defendant that the point of impact was where he marked it on the drainage plan which is part of exhibit 2 and where he is shown, indicating its position to a policeman in the video which is exhibit 8. I am satisfied that it was at least 5 or 6 metres further back along Athenree Road in the direction from which the defendant had travelled to that point, and close to where the plaintiff s motorcycle came to rest after the collision (shown in the video exhibit 8). I reject the evidence of the defendant as to the course taken by the plaintiff as he rode around the corner out of Donegal Court into Athenree Road and accept that given by the plaintiff and by Mr Ferrer who marked on photographs 4 and 5 the approximate position where the plaintiff rode his motorcycle off the grass footpath onto the bitumen surface of the T-intersection before he commenced to turn left. Mr Ferrer said that he watched the plaintiff ride his motorcycle across the grass from the letter box of No. 6 Donegal Court which was situated near the wheelie bins shown in photograph 4 (or at least on the kerbside of those bins) to where he crossed the kerb also marked on that photograph. [16] The tree on the corner near the street sign around which the plaintiff travelled shown in photographs 4 and 5 in exhibit 2 could have partly obstructed the plaintiff s view to his left as he was riding his motorcycle on the grass footpath towards the kerbing of the T-intersection preparatory to making his left turn on it. The defendant s view to his right as he approached the Donegal Court T- intersection with Athenree Road is shown in photographs 8 and 9 in exhibit 2 and was relatively unobstructed. [17] Had the defendant been keeping a proper lookout as he drove past the three house blocks the driveways to which are shown in photograph 8 he would have observed the plaintiff ride his motorcycle from the grass footpath onto the bitumen surface of the T-intersection near the street sign shown in photograph 9, which is also shown in photographs 4 and 5, and commence to make his left hand turn, at least from any time after he reached the position in Athenree Road from where the photographer took photograph 9. The impact occurred near the closer side of the inlet culvert shown in that photograph near the T-intersection which is the same one shown in photograph 6. No evidence was given as to the distance between the right hand sweep shown in photograph 8 and the T-intersection of Athenree Road and Donegal Court. While it is impossible to estimate that distance by looking at photograph 8 even considered with photographs 2 and 3, the defendant said that as he drove his truck around the right hand sweep shown in photograph 8 on his approach to Donegal Court at a speed of between 15 and 25 kilometres per hour (say 5 to 6 metres per second) he first saw the plaintiff. [18] According to the defendant as he drove around the curve in Athenree Road shown in photograph 8 travelling at a speed between 15 and 25 kilometres per hour he realised that he would need to so manoeuvre his vehicle as to avoid colliding with Mr Ferrer s vehicles which were straddling the kerb on his left hand side of the carriageway. He said that he estimated that he drove his truck leaving half a metre or a metre between its driver s side and the kerbing or gutter on his right hand side. He said that as he was driving around the right hand sweep in Athenree Road

5 5 shown in photograph 8 and just before he reached Mr Ferrer s cars straddling the kerb outside his residence, he saw the plaintiff turn left into Donegal Court out of Athenree Road. Perhaps he was mistaken in this evidence however clearly enough that is what he swore to be the fact on more than one occasion. He said he continued to proceed down towards the T-intersection at about 20 kilometres per hour when he again saw the defendant coming out of Donegal Court to his right. He said that he saw the plaintiff bunny hop his motorcycle over the kerb onto the bitumen road surface. He said he observed the plaintiff ride his motorcycle over towards the kerb in Donegal Court opposite the one over which he had just ridden. He said he observed the plaintiff look to his right and then suddenly turn to his left accelerating as he did so. The defendant said that when he observed this he had actually brought his truck to a halt. He disagreed with the evidence of Mr Ferrer who marked on photographs 4 and 5 where he observed the plaintiff ride from the grass footpath over the kerbing and gutter onto the bitumen surface at a position near the street sign shown in those photographs. According to the defendant he observed the plaintiff ride his motorcycle over the drain shown in photograph 4 in the vicinity of the tree on the footpath behind the drainage culvert which is shown in photograph 4 which however is not shown in photograph 5. According to the defendant he had observed the plaintiff turn left into Donegal Court, and proceed into that Court before he saw him commence to come out of the Court. He said he did not notice to which if any letterbox the plaintiff went to deliver mail. Looking at photograph 5 the defendant said he was able to see the course taken by the plaintiff on his motorcycle as he rode it over the kerb in Donegal Court when he looked between the small tree near the kerb in Athenree Road and the large tree approximately opposite the gulley trap shown in photograph 5. He said that when he was making this observation his truck was in a position approximately where the blue Daihatsu motor vehicle is shown in photograph 5 in front of Mr Ferrer s house straddling the kerb in Athenree Road. The defendant denied that the plaintiff had hugged the corner as he proceeded out of Donegal Court into Athenree Road. He said to the contrary that the plaintiff after riding his motorcycle off the footpath had headed right over towards the other side of Donegal Court, looked right and then turned to his left back into Athenree Road, as I understood him, from the other side of that Court. The defendant said that when he had observed the plaintiff travelling off the footpath onto the bitumen surface in Donegal Court he applied his brakes. Looking at photograph 5 he said the cab of his truck would have been at the driveway giving access to Mr Ferrer s house shown between the blue Daihatsu to the left and the fawn coloured Volvo to the right. He said that the cab of his truck would then have moved the distance between the blue Daihatsu and the width of the concrete driveway (2.5 metres) giving access to Mr Ferrer s house, between the time he first saw the plaintiff and the time he brought his vehicle to a halt. He said that he saw no indication from the plaintiff whether he was going to turn to his right or to his left into Athenree Road. He said that at the point of first impact between his truck and the plaintiff s motorcycle he had basically stopped. [19] He said that the video (exhibit 8) showed him walking with the police officer and indicating exactly where his truck was at the time of impact, after he had pulled up having observed the manoeuvring of the plaintiff in Donegal Court to which he swore. [20] He said that he did not sound his horn when he first observed the plaintiff manoeuvring his motorcycle because he believed to do so would have had no effect.

6 6 [21] The defendant marked the course he observed the plaintiff s motorcycle take with a dotted red line on sheet 3 of the subdivisional roadworks and drainage plan which is part of exhibit 2. He marked the position of the cab of his stationary truck at the time of impact with a red line more or less at right angles to the curved dotted line located approximately level with the Athenree Road side of the culvert in Donegal Court shown in photograph 5. [22] The defendant said that the handlebar of the plaintiff s motorcycle first came into contact with his cab and his leg then impacted with the tray protruding beyond the width of his cab. [23] Looking at photograph 6 the defendant gave evidence that he had driven his truck up Athenree Road towards the houses on the top of the hill to deliver building material. The sweep to the right to which he referred in his evidence as the place from which he was first able to observe the entrance to Donegal Court, is the one turning to the left from where the photographer was standing when photograph 6 was taken. If one then goes to photograph 7 one can see the actual house to which the defendant delivered building material with what appears to be pallets of besser blocks in front. There is no photograph depicting Athenree Road between the kerb to the left shown in photograph 6 and photograph 2, and Athenree Road shown in photograph 7. In any event whatever course was taken by the defendant to travel from the building site which seems to be the house on the left hand side at the top of the rise shown in photograph 2 and the curve to the left in Athenree Road shown in that photograph, the only evidence relevant to the issue of the defendant s negligence is the view that he had of Donegal Court as he came around the left hand curve shown in photograph 2 which of course was the sweep to the right to which he referred when giving evidence. [24] Looking at photograph 5 the defendant said that when he next observed the plaintiff on his motorcycle preparing to ride out of Donegal Court the cab of his truck was level with the headlights and grille of the blue Daihatsu shown in photograph 5. He said that his speed at that time was probably about 20 kilometres per hour; when he observed the plaintiff approaching Athenree Road he took his foot off the accelerator and applied his brakes because he did not know what the plaintiff was going to do. He said initially that at the point of collision the cab of his truck was level with the right hand side of the concrete driveway into Mr Ferrer s house as one looks at photograph 5. Ultimately he said that the cab of his truck would have been between the concrete driveway and the front of the Volvo shown in photograph 5. He said he was stationary at point of collision and that the cab of his truck had travelled the distance between the front of the blue Daihatsu and a position between the edge of the concrete driveway and the front of the Volvo shown in the same photograph. Mr Ferrer said that the width of his concrete driveway was about 2.5 metres. It would seem then on the defendant s version of events, that he would have travelled no further than about 5 or 6 metres reducing his speed from 20 kilometres per hour from the time he observed the plaintiff ride his motorcycle from the grass footpath in Donegal Court over to the opposite side of that Court until the time he brought his truck to a halt after which the plaintiff rode his motorcycle directly towards his truck colliding firstly with a blinker at the front of his truck and then the cab and then bringing his leg into contact with the front of the driver s side truck tray which extended some distance beyond the side of the cab of the truck. He said the plaintiff rode his motorcycle straight into his truck and had he looked to his left at any time or in fact looked in the direction in

7 7 which he was travelling prior to impact he would have been able to see the position of his stationary truck. He said that the plaintiff had ridden right out of Donegal Court and into Athenree Road before turning sharply to his left in front of the defendant s truck and rode across the width of Donegal Court straight into the front of it. He said that the point of impact was just to the left of the centre of the intersection looking at photograph 5. While this seems not entirely consistent with the position he marked on sheet 3 of the subdivisional roadworks and drainage plan which is part of exhibit 2 it is consistent with where he was standing indicating the point of impact to the investigating police officer which is recorded in the video exhibit 8. [25] Apparently there was a record taken of the conversation between the defendant and the investigating police officer shortly after the collision. Although the defendant was cross examined as to the content of his version of events which was tape recorded at the scene of the collision, for some reason no effort was made to prove by direct evidence the terms of that conversation. Apparently there was some conversation about petrol found on the roadway and whether or not that was indicative of the point of impact. The defendant apparently disagreed with the proposition that the petrol on the roadway which is probably depicted in the video which is exhibit 8 indicated the point of impact. In the absence of a full and accurate record of the conversation between the police officer and the defendant at the scene of the collision I am unprepared to infer the content of any admissions that may have been made by the defendant in the course of that conversation from what emerged in his cross-examination. [26] In the course of the cross-examination as to what he said to the police officer shortly after the collision the defendant did say that the plaintiff had come off the footpath and swerved to hit me. [27] He said the reason he did not sound his horn was that he did not know which way the plaintiff was going to turn from Donegal Court. He said he did nothing just hoping that the plaintiff would see him. [28] One observation made by the defendant in the course of a very long crossexamination was if he would have come down in photograph 5 as that gentleman said yesterday (i.e. Mr Ferrer marking on that photograph where the plaintiff rode his cycle from the grass onto the bitumen surface of the T-intersection) and I think the expression was hug the kerb he wouldn t have had any dramas anyway, he would have saw me before he come off the grass if you are just interpreting something. [29] He said that his truck was level with the blue Daihatsu there at that time. He conceded that had the plaintiff been hugging the kerb as both he and Mr Ferrer said, it would have been unnecessary for the plaintiff to swerve to avoid the collision in any event. However he repeated his recollection that the plaintiff was nowhere near the kerb of the T-intersection shown in photograph 5 when he went into Athenree Road; on the contrary he travelled right across Donegal Court, then swung left and approached the defendant substantially head on. [30] The defendant said the motorcycle had clipped the truck just above where a traffic indicator was located at the front. Eventually the defendant said that at the time

8 8 when the first impact occurred between the plaintiff s motorcycle and his truck, it was stationary but he said that the impression he had sitting in the cab of the stationary truck was that the plaintiff had clipped it, lost his balance and fallen over between the two trees shown in photograph 6 roughly opposite the grey car parked behind the blue Daihatsu car shown in that photograph. [31] According to the defendant he saw the plaintiff enter Donegal Court when he was passing the curve to the right shown in photograph 8 and indeed had proceeded along the straight kerbing which seems to commence at the second concrete driveway shown in photograph 8 and continue along as shown in exhibit 9. The defendant observed that he did not know how many postal drops the plaintiff had made in Donegal Court but having seen him turn into Donegal Court from the position he described with reference to photographs 8 and 9 said that he could only have made one mail drop in that Court by the way he come out there. [32] The evidence of the plaintiff of course which was uncontradicted and not even challenged in cross-examination was that he had made three mail drops in Donegal Court which contains six houses. [33] I am satisfied on the probabilities that the plaintiff did in fact make three mail drops in Donegal Court. It would have been quite impossible for him to turn to his left into Donegal Court, make mail drops to three houses in that Court and then drive across the footpath in the view of the defendant within the period of time that it would have taken the defendant to travel at a speed of 20 kilometres per hour from the curve shown in photograph 6 to the point of impact somewhere between the blue Daihatsu car and the beige coloured Volvo car shown in that photograph. [34] I find it improbable that the defendant did see the plaintiff enter Donegal Court. I am unpersuaded that he observed the plaintiff execute the manoeuvre that he said he observed. I prefer the evidence of Mr Ferrer that in fact the plaintiff did leave the footpath in Donegal Court at the location which he marked on photographs 4 and 5 and thereafter did drive around the corner into Athenree Road at a distance of between 0.5 and 0.8 of a metre from the kerb. On this issue I prefer the evidence of Mr Ferrer to that of the plaintiff as to the place from where he rode his motorcycle to and across the kerb and onto the bitumen surface just prior to the collision. [35] In my view the probability is that the defendant s attention was distracted by Mr Ferrer s parked vehicles straddling the kerb to his left as he drove down Athenree Road. I think the likelihood is that the defendant simply omitted to keep a proper lookout to his right as he approached the T-intersection being more concerned to keep well away from Mr Ferrer s parked vehicles the first of which protruded about 0.6 of metre beyond the kerb and the second of which a little further on protruded about 0.9 of a metre. I believe the reason why the defendant did not sound the horn of his truck was that he was simply unaware that the plaintiff was riding out of Donegal Court. A possible explanation for the rather implausible account given by the defendant as to the plaintiff s manoeuvring of his motorcycle in Donegal Court is that it resulted simply from his effort to reconstruct what he thought must or might have happened. [36] For the reasons I have given in paragraph [10] I take the view from the photographic evidence contained in the video exhibit 8 that the width of the defendant s truck was probably less than 2.5 metres and certainly nowhere near 2.7 metres. Even if it

9 9 were 2.7 metres wide, which I find improbable, the defendant would still have had ample room to pass Mr Ferrer s Volvo motor vehicle obstructing the passage of his truck to his left by 0.9 of a metre. There was still 4.1 metres between the Volvo and the kerb line to the defendant s right. Travelling at a careful speed he could have passed the Volvo with 0.4 of a metre clearance still leaving at least one metre on his driver s side kerb within which the plaintiff could safely continue to ride his motorcycle as he had commenced to do. [37] The substantial cause of the collision in my view was the failure of the defendant to drive as near as practicable to the left hand side of the carriageway in the direction in which he was travelling, that carriageway being partially obstructed to the extent of 0.9 of a metre. Had he been keeping a proper lookout to his right he would have observed the course taken by the plaintiff, which was readily observed by Mr Ferrer just over the road, and should have brought his truck to a halt and/or sounded its horn having regard to its position on the roadway. I find that without good reason he was too far over the centre of the roadway to allow the plaintiff to continue safely on the path he was following. I infer that he tended to move yet further to his right to pass the Volvo as he approached it; it protruded 0.9 of a metre from the left kerb whereas to pass the Daihatsu he needed to move out sufficiently to avoid a protrusion of only 0.6 of a metre from that kerb. I think it likely that he did not become aware of the plaintiff s presence until after he had steered a little further to his right to pass the Volvo than he had thought necessary to pass the Daihatsu. I infer that it was only after he had committed himself to the course he was taking to avoid the Volvo that he became aware of the plaintiff s presence as he proceeded down Athenree Road to cross its T-intersection with Donegal Court. [38] With respect to contributory negligence, the defendant relies upon the plaintiff s breach of s 34F(2) of the Traffic Regulation Such a breach of course would not of itself necessarily constitute contributory negligence. In this respect I refer to what was said in Sibley v Kais (1967) 118 CLR 424. [39] Section 34F(2) of the Traffic Regulation 1962 provides inter alia (2) A driver travelling on a road that ends at a T-intersection must give way to all vehicles travelling on the road that continues through the intersection that are approaching, entering or on the intersection. The obligation imposed by s 34F(2) must be defined by reference to s 4CA(1) of that Regulation which provides Where this regulation requires a driver to give way to a vehicle the driver shall, in circumstances where if the driver proceeded there would be a reasonable possibility of the driver colliding with that vehicle or otherwise creating a dangerous situation, slow down to such extent, or stop and remain stationary for such time as is necessary to allow that vehicle to continue on its course without risk of collision or as is necessary to avoid creating a dangerous situation. [40] In the unanimous judgment of the High Court in Sibley v Kais it was observed at 427 that traffic regulations are not definitive of the respective duties of drivers of vehicles either to each other or in respect of themselves. It was observed that the common law duty to act reasonably in all the circumstances is the paramount duty

10 10 and a 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 regulation, because there is no general rule that in all circumstances, a driver may rely upon the performance by others of their duties whether derived from statutory sources or from the common law. Their Honours then dealt with the facts of the case before them which involved a collision between two vehicles on an intersection which permitted vehicles upon one road to cross completely the path of vehicles on the other road. It was not a Tintersection with respect to which s 34F(2) imposes its obligation. That was a case where a plaintiff driver having right of way at an intersection before proceeding across the intersection looked to his right without taking sufficient care to look to his left. He was unable to bring his vehicle which had the right of way to a halt before it had proceeded more than half way across the intersection where it became stationary when the vehicle proceeding from the left failed to give right of way and collided with it causing the plaintiff injury. [41] The trial judge had absolved the plaintiff from contributory negligence. The Full Court of Western Australia however found contribution to the extent of 25%. It was against this order that the plaintiff sought special leave to appeal from the High Court. At page 427 it was held 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 him from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected. As we read the quoted remarks of the Chief Justice [i.e. of the Full Court of Western Australia] in this sense, which it seems to us, in the context of his whole judgment is the sense in which he intended them, we are of the opinion that his statement was correct. The remarks of the Chief Justice to which reference was made were The right hand rule is not the be all and end all in relation to questions of civil responsibility. If the rule were regarded as an absolute criterion some of the results would be ridiculous. The obligation is on every driver no matter from what quarter he enters or is about to enter an intersection, to condition his speed and the handling of his vehicle so as to be able to avoid collision with any other vehicle or vehicles entering. The degree of care will always depend on the circumstances. [42] In the circumstances of this case, I find that the plaintiff had restricted visibility to his left up until the time he proceeded from the grass footpath of the T-intersection and rode his motor cycle onto the bitumen surface of the intersection where indicated by Mr Ferrer. I am satisfied on the evidence that after stopping he then proceeded to make a left hand turn out of Donegal Court back into Athenree Road and that he probably kept within from 0.5 to 0.8 of a metre and certainly within 1

11 11 metre of the kerb at that T-intersection which is best illustrated in photograph 4 in exhibit 2. I am satisfied that before the plaintiff commenced to make his left hand turn out of Donegal Court into Athenree Road he had looked right and then left and then right and as he entered into and proceeded upon Athenree Road he was looking to his left and straight ahead. There is no evidence from the plaintiff that before he commenced to ride his motorcycle into Athenree Road to point of impact he became aware of the approach of the defendant s truck; he did not become so aware until moments before the collision occurred. [43] He did in fact stop and look to his left before entering into the path ultimately taken by the defendant s truck. One must remember that the defendant s evidence was that before he applied his brakes as he passed the blue Daihatsu straddling the left hand kerb, he was travelling at a speed of 20 kilometres per hour, which is about 5.5 metres per second. It was only as he approached the rear of this vehicle protruding 0.6 of a metre beyond the left hand kerb that according to Mr Ferrer he swerved towards the right. Until he swerved, I presume, his approach would not and did not lead the plaintiff to perceive or apprehend a dangerous situation should he follow the course he had decided to follow and proceed up Athenree Road about 0.5 to 0.8 of a metre out from the kerb on his left hand side. Indeed even if he had observed the defendant commence to move out to swerve around the Daihatsu vehicle as Mr Ferrer observed, he may not have apprehended that the defendant would swerve to his right any further than was necessary to give the passenger side of his truck perhaps.4 or.5 of a metre clearance from both the Daihatsu and Volvo which he intended to pass. That would still have left approximately 3.6 metres between the driver s side of the Volvo and the kerb on the other side of Athenree Road through which he would be able to manoeuvre his truck which was no wider than 2.5 metres leaving the plaintiff 1.1 metres between the driver s side of his truck and his right hand kerb; even if it had been 2.7 metres wide he would still have been able to pass between the Volvo and the plaintiff with a clearance of.5 of a metre from the Volvo and one of.9 of a metre from the kerb on his right hand side. The same situation would have applied with respect to passing the Daihatsu vehicle except that the available space would have been increased by an additional 0.3 of a metre. While it is unrewarding to attach too much significance to such estimates of measurements and distances, in the absence of more reliable circumstances indicating the course taken by the defendant and his position immediately prior to the collision I give some weight to them. [44] Had the plaintiff earlier become aware of the defendant s truck as it approached the rear of Mr Ferrer s Daihatsu some distance down Athenree Road, he should have perceived that a dangerous situation or risk of collision with the defendant s truck might arise even if the defendant had not then commenced to swerve to avoid Mr Ferrer s vehicles moments before impact. Mr Ferrer observed the defendant make this swerve; he was at the front of his house and able to observe the course taken by both the plaintiff and the defendant prior to impact. He said he saw the plaintiff basically pull up just behind that sign (which is the sign shown in photographs 4 and 5 of exhibit 2). I infer that the plaintiff did not just ride off the footpath onto the bitumen surface of the T-intersection and continue on around the corner to his left. In fact he did basically stop ; he looked both to his right and to his left on a number of occasions before proceeding to drive into Athenree Road to make a mail delivery to a house nearby number 6 Donegal Court on the corner of that T-intersection.

12 12 [45] The onus is on the defendant in this case to establish contributory negligence against the plaintiff. [46] Whether the plaintiff ought to have perceived that by proceeding up Athenree Road within 1 metre of its left hand kerb in the light of the defendant s approach to that T-intersection from the opposite direction, there was a risk of collision, depends partially upon whether the defendant had embarked on his swerving manoeuvre to avoid colliding with Mr Ferrer s vehicles before or after the plaintiff having brought his motor cycle to a halt where Mr Ferrer said he did and upon whether having looked to his left, if he did so carefully, he should have observed the defendant commence to swerve as Mr Ferrer said he did. Travelling at 5.5 metres per second only a second or two could have elapsed from the time the defendant commenced to swerve until the manoeuvre he made in swerving far further to the right than was necessary to avoid colliding with Mr Ferrer s vehicles would have become apparent. I infer that the plaintiff s speed between where he stopped on the T-intersection before he proceeded to his left and the point of collision was much less than the defendant s speed as he approached the Daihatsu before commencing to pass it. [47] In my view the failure of the plaintiff to perceive the possibility that the defendant would negligently swerve far further to the right than was reasonably necessary to avoid coming into contact with Mr Ferrer s vehicle did in fact involve a breach of his obligation to take reasonable care to avoid the collision which resulted as well in a breach of s 34F(2) and s 4CA(1) of the Traffic Regulations. In my view he should in the circumstances, including the size of the defendant s truck and the relatively narrow carriageway through which it was to proceed, have remained stationary for a couple of seconds until the defendant had passed through the T-intersection before he proceeded to his left up Athenree Road. [48] I am quite unpersuaded that the defendant was in fact stationary on Athenree Road as he claimed when the collision occurred. In this respect I prefer the evidence of Mr Ferrer that it was after the collision that the defendant locked up his brakes and skidded probably about a metre before he again pulled over in the middle of the road. [49] I accept the evidence of Mr Ferrer that the defendant swerved out slightly to avoid the Daihatsu Van before going onto the other side of the road and as he was coming through collided with the plaintiff. [50] I infer that when the plaintiff looked to his left before commencing to turn left into Athenree Road, the way the defendant s truck was then being driven towards the T- intersection probably gave no indication that the passage of that truck would necessarily create a dangerous situation should he continue up Athenree Road. On the course he was taking I find a dangerous situation arose only when the defendant swerved over onto his incorrect side of the road after the plaintiff had concluded that there was no danger to him in proceeding as he did onto and up Athenree Road. I am satisfied that imminent danger probably arose after a second or so had elapsed from the time when the plaintiff decided to ride along Athenree Road. In my view, it was clearly open to the defendant to drive past Mr Ferrer s parked vehicles closer to them avoiding risk of collision with the plaintiff riding his motorcycle as he was on the other side of Athenree Road. In my view, prior to the defendant swerving out much further than was necessary as he approached the rear of Mr Ferrer s Daihatsu motor vehicle, the only reason for the plaintiff to perceive any dangerous

13 13 situation or risk of collision should he then commence and continue to ride up the left hand side of Athenree Road was the possibility that the defendant would swerve farther to his right than was either necessary or reasonable having regard to the presence of the plaintiff. In fact he had proceeded well into Athenree Road before the defendant s truck collided with him as it was passing Mr Ferrer s Daihatsu vehicle giving it and the Volvo a much greater clearance with his truck than it was necessary to do. The plaintiff probably had no reason to perceive that the defendant intended to swerve his truck so far to the right until he did so. However in my view he should have foreseen that he might do so and if he did that there would be a risk of collision. [51] There is no acceptable evidence as to precisely what period of time elapsed from when the plaintiff turned to drive into Athenree Road without adverting to any risk of collision and when the defendant without apparent reason unnecessarily commenced to swerve into his path it may have been less than a second. [52] I have considered whether in the circumstances the plaintiff ought be required to bear some responsibility for the collision, on the basis of the obligation imposed on him by s34f(2) keeping in mind that had he been keeping a proper lookout he should have observed that the partial obstruction of a five metre carriageway raised the possibility of the defendant swerving as far right as he did albeit that it was unnecessary for him to do so. With some hesitation, at the end of the day I am persuaded upon the evidence that the plaintiff did unreasonably fail to perceive a risk of collision or of a dangerous situation arising should he turn left upon the T- intersection and ride into Athenree Road as he did immediately prior to the collision should the defendant attempt to proceed through the intersection closer than necessary to the right hand kerb in Athenree Road in the direction in which he was travelling. If the defendant s truck was 2.5 metres wide and he gave the Volvo one metre clearance instead of.5 metre clearance it would mean that the plaintiff would have only.6 of a metre clearance as he rode between the driver s side of the truck and the kerb. In my judgment however the defendant s responsibility for the collision was far greater than that of the plaintiff. He was driving a very large vehicle through a narrow street into which he was or should have been aware the plaintiff was making a turn. He failed to keep to his left or to give any warning of his approach. I apportion responsibility for damage suffered by the plaintiff at 85% to the defendant and 15% to the plaintiff. [53] At the time of his injury the plaintiff was 19 years of age. He had completed grade 12 of his education at high school. He had not achieved high grades in academic pursuits. He was more interested in manual arts. He had no interest in pursuing an indoor/administrative/clerical type of occupation. [54] On leaving school at age 18 he worked planting trees for State Forestry for about four months. He then trained as a security guard and did work of that sort for about three months. He then commenced to work delivering mail for a postal contractor. He had been doing this work for about six weeks at the time of his injury. [55] The plaintiff suffered a very serious injury to his right leg. Photographs of his leg taken while he was in hospital are contained in a folder which is exhibit 2. [56] Subsequent to the taking of those photographs the plaintiff had skin grafting operations and I was able to inspect his leg in the course of the trial. It suffices to

14 14 say that as well as the permanent physical disability with which he has been left he has also been left with severe cosmetic damage and in my view it would be reasonable for him to have the corrective plastic surgery to which Dr Jenkins, a plastic and reconstructive surgeon, referred in his report of 12 February 2001 which is part of exhibit 3. As a consequence of his leg injury the plaintiff lost about 50 % of the muscle bulk at the front and sides of his right leg. He also suffered a subluxation of his right ankle joint. He underwent numerous operations during his first week of treatment in the Nambour General Hospital. During that time some of his muscles became devitalised and extensive debridement was performed. Muscles of his right leg had to be removed and antibiotic treatment was given. [57] Muscles were taken from his stomach and used to try to repair to the extent possible muscle loss in his right leg. [58] Between 6 and 10 September 1999 reconstructive and plastic surgery was performed. That operative treatment was successful although antibiotic treatment was required for a further two weeks. By the end of this treatment the wounds had healed extremely well and the plaintiff was discharged from hospital with a splint designed to assist him to walk more safely with his foot drop and ankle problems sustained in the collision. [59] He left hospital towards the end of September 1999 and thereafter returned for outpatient treatment every couple of days. Initially he supported himself walking with a crutch. In November 1999 it was thought that he should use an ankle- foot orthosis to assist him walking more safely and it was decided that he should be reviewed in two months. [60] The plaintiff has been left with no active dorsiflexion of his right ankle however he is able to function quite well with an ankle-foot orthosis. [61] In October, November and December 1999 the plaintiff had problems with ulceration of his skin graft and attended the Landsborough Medical Centre for treatment. On 10 April 2000 he had to attend for treatment of a minor cut to his skin graft. [62] In July 2000 he attended for treatment of an accidental burn to the skin graft on his right leg which was attributable to lack of sensation that he has on the site of the skin graft. He received treatment for this condition over a period of about one month. [63] Eventually the plaintiff obtained casual work as a labourer doing fencing and landscaping; this work was quite heavy physical work which he could not continue to do. He also did some work picking strawberries which must have been stressful to a man with his leg condition. He also did some voluntary work assisting preparation of a venue for a music festival. He enjoyed doing this work but it must have stretched his capacity to the limit. [64] When he left school the plaintiff had hoped to obtain an apprenticeship as a carpenter. He had been unsuccessful in obtaining such an apprenticeship prior to his injury. It is not clear on the evidence whether to obtain such a position he would have had to improve his academic achievements at school. Although he had displayed skill and ability on the practical side of manual arts courses he had not done very well on the academic side. He said that had he not been able to obtain a

15 15 position as an apprentice carpenter he would have contemplated attempting to join the Army. Again to follow this occupation he would probably have had to do a course of study to upgrade his academic achievements at high school. His brother had in fact become a member of the armed forces and this was undoubtedly a factor in his interest in becoming a member of the Australian military forces. [65] It is clear that the plaintiff at the time of his injury was a relatively young man in good physical condition. He had played football and was keen on body surfing in which he engaged almost daily. On my assessment of the evidence he would probably have matured in his mid-20s by which time he would have chosen an outdoor type of occupation involving physical activity which required some degree of training and experience. It may have been that he would have acquired an apprenticeship as a carpenter or some other building related trade or indeed he may have improved his academic achievements sufficiently to become a member of the Australian military forces. On the other hand or pending acquiring such a position he would have been able to engage in outdoor activities requiring strength and application and perhaps he may have been employed as a postman as well. My impression of him, and having regard to the evidence of his current employer, is that he is a friendly, energetic and personable young man. Since he obtained his current job as car detailer he has earned the respect and approbation of his current employer for the performance of all duties required of him in a satisfactory way. In fact the plaintiff has been taking a course to qualify himself to perform an indoor job in the motor industry involving the storage and retrieval of parts necessary to repair motor vehicles of various sorts. The plaintiff has decided that he will be able to manage to do this job and his current employer has indicated that the plaintiff would be an acceptable employee if able to do the job required of him. On the medical evidence and on his evidence I am persuaded that he will probably be able to do this job although he will probably never earn as high an income doing it as he would have earned had he ever obtained employment requiring the physical strength, agility and application of the kind which he would probably have acquired by his mid-20s but for his injury. He did indicate that one of the employment options that he considered was a position as a postman: such a position would have become vacant shortly after the time of his injury. [66] When examined by Dr Gillett, an orthopaedic surgeon, on 13 November 2000 the plaintiff s right leg was in a stable condition. He then required and will always require the use of his ankle-foot orthosis. He then had and will always be left with an ongoing weakness of his right leg and a reduced ability to do any task requiring him to stand for long on that leg. The performance of any tasks involving squatting will be reduced and activities involving him walking over uneven terrain, permanently constrained. For the rest of his life he will suffer problems from time to time relating to his leg although ostheo-arthritis will not develop as a consequence of injury to his leg and ankle. [67] Dr Gillett took the view that he had a 15% impairment of bodily function as a consequence of his injury and will permanently require the use of his ankle-foot orthosis. [68] Dr Gillett also took the view that a scaphoid injury suffered by the plaintiff to his left wrist was consistent with its occurrence in the course of the motorcycle collision in which the plaintiff was involved at the time of his leg injury. He said that it was not uncommon for such a bone fracture to be missed when a person