Hemmings v Suncorp Metway Insurance Ltd
[2011] QDC 19
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- Unreported Judgment
- Hemmings v Suncorp Metway Insurance Ltd[2011] QDC 19
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Hemmings v Suncorp Metway Insurance Ltd[2011] QDC 19
Hemmings v Suncorp Metway Insurance Ltd[2011] QDC 19
DISTRICT COURT OF QUEENSLAND
CITATION: | Hemmings v Suncorp Metway Insurance Ltd [2011] QDC 19 |
PARTIES: | KAREN LOUISE HEMMINGS v SUNCORP METWAY INSURANCE LIMITED |
FILE NO/S: | 522 of 2004 |
DIVISION: | Civil |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 3 March 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 28 February 2011 |
JUDGE: | Reid DCJ |
ORDER: | Judgment for the defendant. That the plaintiff pay the defendant’s standard basis costs of and incidental to the proceeding to be agreed or failing agreement to be assessed where the relevant amount claimed was the maximum in the District Court until 20 July 2010, and thereafter were the amount claimed was $750,000.00. |
CATCHWORDS: | CIVIL LAW – NEGLIGENCE – MOTOR VEHICLE ACCIDENT – ONE PARTY DECEASED – LOSS OF MEMORY – DUTY OF CARE - ROADUSERS Evidence Act 1977 (Qld) s 92 Bagnall v Schmidt (1980) 25 SASR 93 - cited Baker v Market Harborough Industrial Cooperative Society Ltd & Ors [1953] 1 WLR 1472 – considered and distinguished March v Stramare Pty Ltd (1991) 171 CLR 506 – considered Nesterczuk v Mortimore (1965) 115 CLR 140 - considered Smyth v McLeod (2004) QSC 43 – cited Van Muyen v Nominal Defendant (Queensland) [2002] QSC 344 - cited Vayne v SGIC (SA) (1991) SASC 2730 - cited Wardle v Fowler [2002] SASC 380 - considered Weckert v Vogt (1989) 9 MVR 110 - cited |
COUNSEL: | Mr. Copley, CK for the plaintiff Mr. Dickson for the defendant |
SOLICITORS: | South Burnett Lawyers for the plaintiff Jensen McConaghy for the defendant |
Introduction
- [1]Shortly before 6 pm on 16 February 2001 a vehicle driven by Karen Hemmings (hereinafter the plaintiff) collided with a vehicle driven by Albert Haines. The vehicles were travelling in opposite directions on the D’Aguilar Highway, about two kilometres west of Blackbutt in south Queensland. Mr Haines died at the scene as a result of the accident. The plaintiff has brought a claim for damages alleging negligence on the part of Mr Haines against the CTP insurer of his vehicle, Suncorp Metway Insurance Limited. The trial before me was confined to the issue of liability only, as a result of an order made by me in the applications jurisdiction late last year.
The accident
- [2]The plaintiff had driven her vehicle from the Gold Coast on the afternoon of the accident. She was very familiar with the road, having grown up in Kingaroy, not far to the west of the accident scene, until she was 17. She had returned to live there some seven or so months before the date of the accident. Although she was driving her sister’s car, she said she was very familiar with it also. She had left the Gold Coast at about 2.30 pm. She stopped at Collington, a short distance east of Blackbutt, to fill her car with petrol and then stopped at Blackbutt for about 25 minutes, primarily to feed her young daughter. She says she left Blackbutt at 5.45 pm, according to a public clock in the centre of Blackbutt. She has no memory of events after leaving Blackbutt until after the accident.
- [3]It is common ground that it was a fine day and that, at that time of the year, it was still daylight. It is clear that as the plaintiff’s vehicle was travelling around a left hand sweep of the highway it crossed, at least partially, on to the incorrect side of the roadway. Mr. Haine’s vehicle was travelling east on the highway. There is obviously no version of the accident from him. I shall refer to him hereafter as “the deceased”.
- [4]Neither vehicle had passengers, other than the plaintiff’s daughter who was then only some months old.
- [5]Fortunately the deceased’s vehicle was being followed by a car driven by Mark Bray, who gave evidence before me. A statement of his, made to police on 21 February 2001, only five days after the accident, was also tendered by counsel for the defence.
- [6]Mr Bray said that he was reasonably familiar with the road, having travelled it about once a week for a period of about a month prior to the date of the accident. He said he recalls following the deceased’s vehicle from at least Yarraman which he said was about 10 to 15 minutes west of the accident scene. He said he may have been doing so prior to arriving at Yarraman on his journey from Kingaroy.
- [7]In his evidence before me Mr Bray said he followed at a distance of about three to four car lengths behind the deceased’s vehicle but added that “I really don’t know”.
- [8]He said he and the deceased were travelling at about 100 kilometres per hour, which was the speed limit on the highway. He said that their speed could have varied because the country in that area was quite hilly and as they went down hills it would have increased to over 100kph but as they went up hills it would have decreased. In response to a question as to whether he was conscious of those variations in his speed at the time, or whether it was something he had reconstructed, he said:
“I wasn’t really conscious of it, I just know that as we were going up and down that at stages of [sic] my speedo would have read 90. So I’m assuming that as we’re going up hills it’s compensated when we’re going downhills as well.”
- [9]He did not provide any particular estimate of speed of the deceased’s vehicle at the time of the impact, which appears to have occurred on a light downhill section of the road. In this regard Mr Bray said that after the accident he allowed his car to roll forward down the hill. He said in response to a question from defence counsel that the slope did not strike him as a very steep hill. He described “a slight downhill roll”.
- [10]I should also add that in his statement to police Mr Bray said: “I was following the car at about a distance of 30 to 50 meters… I think we were doing 100, 110, somewhere around there”.
- [11]In my view it is not possible to conclude that because the deceased was travelling down a slope that he would necessarily have been exceeding the speed limit immediately prior to, or at the time of, the accident. In my view the evidence does not enable me to so conclude. In my view it is absurd to think that the evidence supports the view that at all stages when travelling uphill the deceased’s vehicle was travelling at 90 kilometres per hour and at all stages when travelling downhill it was at 105 or 110 kilometres per hour. There must necessarily have been some transition even if this range of speeds is accurate. In the circumstances of this case I do not know the terrain of the road for any great distance prior to the point of impact. For example, shortly prior to the slope they were on at the point of impact there may have been a steep uphill section of the road, resulting in a slowing of the deceased’s vehicle. The subsequent downslope where the accident occurred may have been only slight or of short duration so that there may have been significant increase in speed. Those matters are merely matters of conjecture.
- [12]In the circumstances, however, I cannot conclude anything in respect of the speed of the deceased’s vehicle at and immediately prior to the subject accident other than that it was generally in accordance with the speed limit. In my view there was no persuasive evidence of excessive speed. I emphasise that I am not suggesting that there was in fact a hill shortly prior to the commencement of the downslope on which the accident occurred. I am simply indicating that I have no evidence of the topography, other than immediately at the scene of the accident, or of the speed of the vehicle in the period immediately leading up to the accident. In the circumstances there was not any evidence on which I could find that the deceased was driving at an excessive speed.
- [13]I find that the deceased was driving at a speed generally in accordance with the prescribed speed limit, but am unable to be particular about whether that was 90 or 110 kilometres per hour, or any particular speed in between.
- [14]Of greater importance, Mr Bray said before me that the deceased’s vehicle was, prior to the motor vehicle accident, close to the marked centreline of the roadway. He said the right-hand tyres of the deceased’s vehicle were close to the white line. This was generally consistent with this statement to police that the deceased’s car was “hugging the line” but “wasn’t across the line at all”.
- [15]In his evidence he said that his and the deceased’s cars were on a section of the road approaching a right-hand bend (which was of course the left-hand bend the plaintiff was negotiating just prior to the accident). He said that he saw the plaintiff’s vehicle when he was about 100 meters from it but said he was “not really sure”. He said he saw it cross over the centreline. He said he braked but said that he was not really sure what the deceased’s vehicle did in terms of taking evasive action. He said: “I was just more worried about the vehicle that was coming towards us. So I’ve – I was just worried about avoiding the accident”.
- [16]The clear impression I had from his evidence was that, faced with an emergency situation he, as might be expected, took strong evasive action by braking heavily to avoid striking the plaintiff’s vehicle, or even the deceased’s vehicle after it had impacted with the plaintiff. In such circumstances, it is in my view not surprising he has no clear recollection of the exact movements of the deceased’s vehicle in the time immediately before it struck the plaintiff’s motor vehicle. Indeed, in my view, it is unlikely he could be expected to recall anything other than a dramatic change in the movement of the deceased’s car, such as he described after impact.
- [17]There was evidence from a Senior Constable David Lonergan of the Forensic Crash Unit of the Queensland Police Service that on 20 February 2001 he prepared a scaled plan of the roadway at the scene of the accident using a theodolite. His plan became Exhibit 3 in the proceedings. He said that each of the lanes was about 2.7 metres wide and there was, additionally, a thin bitumen shoulder. The plan indicates the full width of the bitumen seal from edge to edge was 6.8 metres, suggesting the shoulders were perhaps each about 0.7 metres in width. Perusal of the plan, however, shows that the width of the shoulder varies from side to side on the road and also varies as one moves lengthways along the highway. In my view, it is therefore not possible to make a precise calculation of the width of the shoulder at the point of impact.
- [18]Photos taken by the police, and in particular photo 16 in Exhibit 4, clearly illustrate the nature of this bitumen shoulder. That photo and others also show the presence of a significant embankment off the northern side of the roadway, spoken of by police officers in their evidence. Such an embankment, if a driver was aware of it, might influence how a motorist, faced with a sudden emergency, might react. It might, for example, have deterred him from wrenching his motor vehicle to the left when confronted by an approaching motor vehicle on, or partially on, the incorrect side of the roadway.
- [19]Given the width of the eastbound lane of 2.7 metres and the agreed width of each vehicle of 1.69 meters, there would have been about an additional 1 metre of lane, together with the width of the shoulder, for a vehicle to manoeuvre on the bitumen and remain on the left of the centre lane, assuming there was no encroaching oncoming vehicle. Thus, if a driver faced with an emergency situation had been able to manoeuvre his vehicle so that it was at the extreme left-hand edge of the east bound bitumen section of the road, the right-hand edge of that vehicle would have been about 1 metre plus the width of the shoulder from the centreline of the roadway. I might add that one could not in my opinion be critical of a driver, faced with such an emergency situation for not managing to carry out the manoeuvre I have referred to of taking up a position to the extreme left of the bitumen section of the shoulder roadway.
- [20]The evidence of Mr Bray before me was that he first saw the defendant’s motor vehicle as it “came around the corner”. He said in response to a question from Mr Dixon that what he observed was the plaintiff’s car coming around the corner and then he saw the tyres of the car go over the white line. In cross-examination Mr Bray said he saw the plaintiff’s vehicle commence to move over onto the wrong side of the road. He described it as “drifting over”. He said: “…as it comes around the corner it just kept coming over and it was over the white line”. He had earlier said that the tyres straddled the marked centreline of the road and that the line was centrally located between the tyres. He agreed that about half of the vehicle was on the wrong side of the road.
- [21]He said in evidence that he thought that just prior to the accident the deceased’s vehicle would have been close to the white line. He was clearly referring to the white centreline on the roadway. He then said he braked and slowed dramatically to avoid a collision and that as a result the distance between his vehicle and the deceased’s vehicle appeared to increase significantly, indicating the deceased may have been slower to react than Mr Bray. That of course does not establish that the deceased was negligent in not braking his vehicle as quickly or effectively as Mr Bray. People’s reaction times are different and persons faced with an emergency situation, as here confronted the deceased, may react in different ways. As I said previously, Mr Bray also said he really did not know “what the car in front of me did”.
- [22]In an earlier statement to police he said: “By the time I saw this car, I’ve just seen this car over the lines in our lane. About a third of that car would have come into our lane.”
- [23]He added: “I didn't see either car swerve, just the timing of it, each car just didn’t have time to stop”.
- [24]Mr Bray said after the accident that both vehicles “spun like tops”. The deceased’s vehicle left the roadway and preceded backwards down an embankment which was said to be 8 to 9 metres below the level of the roadway. The bushland was there covered in heavy lantana, according to the evidence and as marked on Exhibit 3. The plaintiff’s vehicle ended up facing at an angle of roughly 45 degrees astride the southern edge of the roadway some distance west of the point of impact. The front of the vehicle was pointing in a generally south-westerly direction.
- [25]In my view it is not possible to conclusively decide whether the plaintiff’s motor vehicle was already over the centreline when it could first have been seen by the deceased or whether it may have originally been on the correct side, when first able to be seen by the deceased, and then drifted onto the incorrect side of the roadway as described by Mr Bray.
- [26]I accept that, generally, it was probably able to be seen by the deceased when his and the plaintiff’s vehicles were something like 100 metres apart, as estimated by Mr Bray. Although no precise finding in this regard is possible, that general impression is based on Mr Bray’s estimation of distance. There might of course be inherent difficulties in accepting his estimation as entirely accurate. I might add that I reject his evidence that it took from 10 to 30 seconds after he first saw the vehicle until they collided. In my view, this estimation of time is glaringly improbable.
- [27]If both vehicles were travelling at about 100 kilometres per hour, which is for these purposes a reasonable assumption on an open highway in good conditions and without any other vehicles impeding traffic flow, the closing speed of about 200 kilometres per hour represents some 55.5 metres per second.
- [28]It is of course not possible to now what distance the vehicles might have been separated by when the plaintiff’s vehicle was first able to be seen by the deceased moving or drifting onto the incorrect side of the roadway, since I am unable to conclusively find whether it was, when first able to be seen, on the correct side of the roadway or not. In that circumstance it is in my view not possible to make any finding as to whether the deceased could reasonably have been expected to react by moving his vehicle significantly far to the left to avoid any impact as suggested by counsel for the plaintiff.
- [29]In my view, the fact that Mr Bray braked, probably before the impact, is not conclusive of the fact that the deceased was in any way negligent. It may be that in the agony of the moment Mr. Bray is unable to be precisely accurate about exactly when he did brake relative to the actual impact and, in any case, it must be remembered that he was, according to his evidence before me, three to four car lengths, and according to his statement, up to 50 metres, behind the deceased’s vehicle.
- [30]It is clear from photographs of the two vehicles that the impact was substantial. Photos of the deceased’s car, especially photo No. 29, being part of Exhibit 5 in the proceedings, show significant impact damage to the right-hand front corner of the deceased’s vehicle. It does seem, however, that only the extreme right-hand edge suffered a significant direct impact. My impression is that something like 20% or 25% of the width of the front of the car might have struck the front of the plaintiff’s vehicle, but this is not a matter that I can measure with precise accuracy. In so estimating, I am mindful of the limited damage to the black bumper shown in that photo and that the grill between the centre of the car and where the right-hand light assembly would have been seems relatively undamaged. If that estimation of the width of overlapping damage is accurate, the vehicles might have overlapped at the point of impact by no more than about 0.3 to 0.4 of a metre, but as I said it is not capable of a precise measurement by me.
- [31]By comparison, if the plaintiff’s car was between a third and half of a car width over the centreline (and again it is not possible to be precise about the position of the plaintiff’s vehicle at the time of impact since Mr Bray’s estimation was made at some time prior to the impact when he could see the plaintiff’s vehicle prior to it being necessarily at least partially obscured by the presence of the deceased’s vehicle), then the right-hand edge of the plaintiff’s car could have been as much as 0.85 metres to the north of the marked centreline of the roadway.
- [32]On such an analysis, the right-hand edge of the deceased’s car might have been about half a metre or even a little more from the centreline, indicating that he might well, at the time of impact, have been right in the centre of his lane.
- [33]In my view it is not, as I have indicated on a number of occasions, possible to be precise about this. In my view it is sufficient for present purposes to say that this is a real possibility and must be considered in evaluating the evidence as to the possible negligence of the deceased.
- [34]In my view, accepting as I do the evidence of Mr Bray that before the accident the deceased had been driving near to the centreline, hugging it but not moving onto or over it, there is nevertheless a real possibility that such a driver would, on becoming aware of oncoming traffic, drift a little further to the left to allow such vehicles to pass safely. In my view such a movement was unlikely to be detected by a following motorist such as Mr Bray when he himself was then or very shortly thereafter faced with an emergency situation requiring heavy braking. In my view such a view is consistent with his evidence that he was “not sure what the car in front of me did” in terms of taking evasive action.
- [35]There was also evidence in this case of some slight damage to the rear left-side of the deceased’s vehicle and of the fact that a guidepost on the northern side of the highway and immediately adjacent to gouge marks on the highway marked in the plan, being Exhibit 3, was broken. Sergeant Wilkie gave evidence of having observed the broken guidepost and said that in his opinion it appeared to have been “freshly broken”. In my view this probably occurred in the accident and it is certainly possible that this was broken by the impact with the left-hand side of the deceased’s car. Whether this might have occurred as a result of the vehicle being driven in line with the guidepost, which was off the bitumen surface, or whether, and perhaps more probably, it occurred when the deceased’s vehicle spun out of control after impact is unknown to me and I am unable to make a finding in respect of that. I draw no conclusions from the fact of the broken guidepost or of the relatively minor damage to the left-hand rear mudguard of the deceased’s vehicle in relation to the position of that vehicle on the roadway at the time of impact.
- [36]A statement of Sergeant Russell Wendt of 15 December 2001 was tendered pursuant to the provisions of s 92 of the Evidence Act, he having unfortunately died late in 2010. He was at the time of the accident the officer in charge of the Nanango Police Station and investigated this fatal accident.
- [37]Sergeant Wendt in his statement referred to fluid spray marks on the highway left by both cars. The fluid spray mark left by the plaintiff’s vehicle is shown marked as a green line on Exhibit 3. It commences on the northern side of the centreline, near to a gouge mark on the roadway also shown on the plan, and continues on that side of the centreline and parallel to it for some distance before changing direction, traversing the west-bound lane and finishing on the southern edge of the bitumen seal near to where the plaintiff’s vehicle came to rest. No similar path is plotted for the spray mark he said came from the defendant’s car. He did say that both lots of spray “meet together on the roadway to the north of the double centreline”. He then said: “The point of impact appears to be just to the right of the double white centrelines facing in a westerly direction along the highway”.
- [38]He refers also to gouge marks, including a gouge mark on the roadway shown in Exhibit 3 and near to the commencement of the fluid spray marks left by the plaintiffs’ vehicle.
- [39]In my view there was no basis demonstrated in his statement or otherwise for his conclusion that there was a “point of impact … just to the right of the double white centrelines”. I accept that the impact was to the right of the double white centre lines, but where precisely it was in the lane in my view cannot be determined.
- [40]The gouge mark near to the centre line might well have been caused by the plaintiff’s vehicle and not the deceased’s. Furthermore, there is no way of knowing what part of the plaintiff’s vehicle may have left that gouge mark. Accordingly, it cannot be used to determine the exact position of either motor vehicle on the roadway at the time of impact. All that can be said is that at some time some part of a motor vehicle, and quite probably the plaintiff’s, was at that position on the roadway. In my view, similar considerations mean that no proper conclusion can be drawn about the position of the cars at impact from the fact and position of the fluid spray marks on the roadway. There is no evidence of what part of each vehicle the fluid was sprayed from. One does not know anything of the direction of the spray of the fluid. A fluid spray mark on the road surface may not even indicate that a vehicle, or some particular part of it, was immediately above the spray mark, as opposed to being relatively near to such spot and fluid sprayed perhaps some distance from it onto the road. I reject Sergeant Wendt’s conclusion as to the point of impact.
- [41]I might say also I do not necessarily accept his further conclusion that the small mark on the rear mudguard of the deceased’s vehicle was caused when the vehicles collided with the guidepost. Even if the post was broken in the accident, as seems likely, it is not possible to find whether this occurred prior to the collision or when the motor vehicle was “spinning like a top”, as Mr Bray describes or what part of the vehicle struck it. In any case, that fact, even if accepted, does not enable me to place the precise position of the motor vehicles on the roadway at the time of impact.
- [42]In the circumstances I find:
- (i)The plaintiff drove her vehicle negligently allowing it to drift across the centreline such that at one stage when Mr Bray observed it it was possibly up to about half of its width, some 0.85 metres, north of the centreline and in the east-bound lane of the highway. It is not possible to know its precise position at the exact point of impact and, in particular, whether it might have continued to drift onto the incorrect side after Mr. Bray made this observation.
- (ii)The damage to the deceased’s car suggested no more than about 0.3 to 0.4 of a metre of the front of that vehicle was directly impacted by the plaintiff’s vehicle.
- (iii)At the time of impact it was very possible the deceased’s vehicle was no more to the right than the centre of his lane and it may have been further to the left.
- (iv)It is not possible to know exactly what warning the deceased may have had of the plaintiff’s car moving into his lane and in the circumstances I make no finding that he was at fault in not avoiding the impact by swerving or moving laterally to the left or otherwise avoiding an impact.
- (v)There is no satisfactory evidence that the deceased was speeding or that his doing so contributed in any way to the occurrence of the accident.
- (vi)Although the deceased was driving near to the centreline of the highway as he drove from Yarraman to the scene of the accident and may have been there shortly prior to impact, there is no satisfactory evidence that he was doing so at the time of the accident itself or that his doing so contributed in any way to the occurrence of the accident.
- (vii)The only effective cause of the accident was the negligent driving of the plaintiff herself.
- [43]In that circumstance the plaintiff’s claim must be dismissed.
- [44]It was submitted by counsel for the defendant that the proper approach to the assessment of evidence in this matter was that identified as appropriate by Mullins J in circumstances where a plaintiff who had no recollection of a subject accident was suing the Nominal Defendant as the effective insurer of an unidentified motor vehicle in Van Muyen v Nominal Defendant (Queensland) [2002] QSC 344. Her Honour said at paragraph 32 of her judgment:
“Although it is correct that in each of the authorities relied on by the defendant the witness who was giving evidence in respect of the unidentified motor vehicle was either the plaintiff or the plaintiff’s spouse, that is not the rationale for the caution in approaching the evidence. The rationale is that there was no opportunity for the court to consider evidence from the driver of the unidentified vehicle. That rationale is applicable whether a plaintiff can give evidence or not.”
- [45]In this case, counsel for the defendant submitted that such an approach, that is adopting a cautious approach to the assessment of the evidence, is equally applicable with respect to a case of a deceased driver at least where that death results from the negligence of the plaintiff. In my view, there is much to be said for adopting such a submission even though there is evidence of an independent witness and police officers as to their observations of the scene post accident. Ultimately, however, I do not have to determine such a question because in my view the evidence, particularly that of the independent witness, Mr Bray, directly supports the conclusions I have drawn. Whether that is due to my adopting a “cautious” approach to the assessment of evidence may be for others to determine.
- [46]Each counsel also referred me to a variety of cases involving motor vehicle accidents.[1] In my view none were directly comparable to the facts of this case, but I will reflect to two of them, and refer to another of Wardle v Fowler [2002] SASC 380.
- [47]In my view March v Stramare Pty Ltd (1991) 171 CLR 506 may be considered authority for each of these propositions:
- (i)A person may be held responsible for damage when his or her wrongful conduct (my emphasis) is one of a number of conditions sufficient to produce that damage.
- (ii)That the determination of causation is to be answered by reference to common sense and experience.
- (iii)That a party must, in determining how to act, have regard to the possibility that others may act carelessly or even unlawfully. A party’s obligation is to act reasonably even having regard to that possibility.
- [48]In my view the evidence in this case does not support a finding that the deceased engaged in any wrongful conduct causative of the accident, even taking into account his obligation to consider the possible careless conduct of other road users. For that reason I have found the plaintiff’s claim fails.
- [49]I might add that if I am wrong in my assessment, and the deceased’s own conduct in driving his motor vehicle in the manner he did constituted a breach of his obligation to other road users and in particular to the plaintiff, then in my view the plaintiff would nevertheless be liable for the overwhelming proportion of responsibility. It would in such circumstances be necessary to consider the extent to which each driver departed from the standard expected of them. It is somewhat difficult, in circumstances where I have found the deceased’s driving to have been reasonable, to consider such a question in abstract, but if it were found that he was driving too close to the centreline and did not take adequate evasive action when confronted by the plaintiff’s vehicle partially on the incorrect side of the roadway, I would have been inclined to find that the deceased’s negligence contributed only about 10% of overall responsibility for the accident. Such an apportionment is identical with the ultimate result in Wardle v Fowler (supra).
- [50]In that case a truck, partially on its incorrect side of the roadway, struck the rider of a motorcycle travelling in the opposite direction. Though the motorcycle was wholly within its lane, it was near to the centreline. The trial judge, who had apportioned liability 80:20 in the motorcyclists favour, found that he had failed to keep his motorcycle as close as possible to the left hand kerb in circumstances where he knew the road where the accident happened on a bend and near to a crest was dangerous.
- [51]The significant difference between that case and the subject case is that I made no similar finding as to the position of the deceased at the time of impact. In addition, there is no evidence before me as to any particular danger with the spot on the D’Aguilar Highway where this accident occurred. I use this case merely to support my assessment of apportionment of liability in the event that I am wrong about primary negligence.
- [52]Counsel for the plaintiff relied on the reasons of Denning and Romer L.JJ in Baker v Market Harborough Industrial Cooperative Society Ltd & Ors (surpra). In that case, their Lordships had determined, in circumstances where there was no evidence to enable a court to draw a distinction between the conduct of two drivers both of whom were killed in the accident, that both were equally to blame. Two things can be said about that case. It was considered and distinguished by the High Court in Nesterczuk v Mortimore (surpa) (and passages of Denning LJ’s judgment were specifically disapproved). Even more importantly for present purposes, this was not a case like Nesterczuk where the competing evidence as to each driver’s conduct was equally plausible. In my view there can be no doubt in this case that the plaintiff was herself negligent and on the basis of the evidence which I accept I am not positively persuaded that the deceased was in any way causatively negligent.
- [53]In the circumstances I dismiss the plaintiff’s claim and give judgment for the defendant.
- [54]After giving my reasons for judgment counsel for the defence submitted a draft order concerning costs. In line with that draft, I order that the plaintiff pay the defendant’s standard basis costs of and incidental to the proceeding to be agreed or failing agreement to be assessed where the relevant amount claimed was the maximum in the District Court until 20 July 2010, and thereafter where the amount claimed was $750,000.00.
Footnotes
[1]The plaintiff referred to Baker v Market Harborough Industrial Cooperative Society Ltd & Ors [1953] 1 WLR 1472; Bagnall v Schmidt (1980) 25 SASR 93; March v Stramare Pty Ltd (1991) 171 CLR 506; Nesterczuk v Mortimore (1965) 115 CLR 140. The defendant referred to Smyth v McLeod [2004] QSC 43; Weckert v Vogt (1989) 9 MVR 110; Vayne v SGIC (SA) (1991) SASC 2730.