Boyd v Fielding [2009] VSCA 237

Boyd v Fielding [2009] VSCA 237 - VSCA 2009 case summary — Zoe

[64]

There is no doubt, as I see it, that all of the witnesses agree that the crane truck was doing a left-hand turn from the right-hand lane. The second point is whether the crane truck reversed up as the plaintiff says it did. The defendant, Reaks and Xerri[3] say it did not.

The next point of difference is where did the collision occur? The defendant says he does not know and he has given you some elaborate evidence about that; large vehicle, did not feel anything, understood that the collision occurred only because of the intervention of Ms Xerri. Reaks and Xerri have it essentially in the right-hand lane of Canterbury Road, but at different points perhaps not far apart. The plaintiff says, and this is the next point of difference, that it occurred some distance down Canterbury Road with the crane truck straddling both lanes, with the plaintiff travelling at about 30 kilometres an hour and I suppose you can draw an inference there that if he was travelling at 30 kilometres an hour and he got up to the cabin of the truck, it was probably travelling at a speed perhaps approximately to what speed he said he was travelling at.

The next point of difference is, on the account of the plaintiff, Reaks and Xerri, was there room for the plaintiff to get through? Reaks and Xerri say there was no room. The plaintiff says on his account he had at least a couple of metres in between the driver's side of the truck and the centre of the road.

The next point of difference is where did this collision occur? Did it occur where Reaks and Xerri say it did or where the plaintiff said it did? I will remind you again, adding onto what I have just said to you about the plaintiff's description, he says his left hand was struck by the outrigger area on the driver's side of the defendant's truck.

The last point of difference, as I see it, is whether the defendant went into the left-hand lane or stayed in the right-hand lane. Reaks and Xerri say that it was in the right-hand lane, as does the defendant, until Reaks loses sight of the crane truck, and that would appear to be the case, and the plaintiff, of course, says it has gone some distance down Canterbury Road, is straddling both lanes and it was partly in the left-hand lane.

That is just a summary to bring back into your state of consciousness where the differences lie between the defendant and the witnesses he called, Reaks and Xerri, and what the plaintiff says about the movements of the respective vehicles and what then unfolded leading up to the occurrence of the collision.

[106]

I want to go to the issue of what occurred after the collision occurred, that is, as between the plaintiff and the defendant, and the conversation which they say they had. I want to read some parts of the transcript to you so that this aspect of what occurred is clear to you ...

The plaintiff, you will recall, gave evidence that at one stage he was standing beside a car and was asked whose car it was and he said 'Brett's', being Brett Fisher, the first witness. The question was this, 'You pointed out the truck driver and said, "That's the man'"? Answer, 'Yes'. 'What did the truck driver do?'. Answer, 'The truck driver said to me, "I'm sorry, I didn't see you," which I replied to, "No, you were too busy on the phone," and he just accepted that and then we just swapped names and addresses'.

He was then cross examined ... by Mr Smith. Mr Smith put this proposition to him, 'He will give evidence that he did come back to speak with you and the first thing he asked you was whether you needed an ambulance and you told him that you did not. Is that correct?' Answer, 'I cant remember'. 'The second thing he said is, "Do you want the police called?" You said you did not want the police called, is that correct?' Answer, 'I cant remember'.

When the defendant gave evidence, he was asked by Mr Smith to describe what he did following his understanding that the collision had occurred and he said this: 'What did you do?' Answer, 'I stopped. I put my hazard lights on, which are very large, continuous lights. All my rotating lights were working, everything else. Headlights are on all the time. I reversed the vehicle back in that same right-hand lane. I stopped before I got back to Mr Boyd's motorcycle. By that stage he was on the footpath with some people. I left the crane in the centre lane. I went over to see how he was. I spoke to him briefly. I explained to him that I've got to get my crane off the road, its still blocking the right lane. I moved the crane over to the left-hand side of the road, half on the footpath, half on the road outside a garden supply place and went back to see Mr Boyd again'. Question, 'Did you conduct any conversation with him?' Answer, 'I spoke to Mr Boyd. I said that I was sorry that he had injuries, but I never ever saw him. I didn't know which direction he had come from. I asked him if he wanted police and ambulance. He told me that he had already rung friends and they were to come to pick him up'.

You will understand, members of the jury, from your recollection of that evidence and from what I have reminded you, the plaintiff says he spoke to the defendant once. The defendant says that he spoke to the plaintiff twice, on the first occasion, then went back to his truck to do whatever he needed to do and then he came back and there was conversation about the police and ambulance. What you will need to do, to the extent that you consider that to be of significance, is of course to balance up what actually happened in the aftermath of the collision. Were there two occasions they spoke or was there one? It was not put to the plaintiff that there were two occasions that the defendant approached him. In any event, what you need to do is to balance up, to the extent that you consider the occasions when they confronted one another occurred on one occasion or two and then to determine the significance that you attribute to the exchange and you will understand that they both say that the conversation occurred in different ways. The plaintiff says that other things were said. Mr Fielding says other things were said altogether, so you will need to make an evaluation of that.

[118]

The duty of care, members of the jury, is to act reasonably and prudently in the driving of the motor vehicle by the defendant in all of the circumstances. Let me give you an example. If I were driving my motor vehicle down the Geelong Road at a hundred kilometres an hour in a hundred-kilometre zone you would say, 'Look, there is nothing unreasonable or imprudent about that'. But if you were coming back into court and you saw me driving down William Street outside this court at a hundred kilometres an hour, you would consider that to be utterly unreasonable, utterly imprudent, if not dangerous. Why would you say that? Because I have fallen below what you would reasonably expect to be a standard of driving in those circumstances. There is quite a different standard required on the Geelong Road from driving down William Street. Of course, you do not have to find that someone's driving was dangerous for it to lack reasonableness and prudence; that is merely an example of an exaggerated kind that I wanted to give you so that you understand how that works.

Of course, when assessing whether a party is being negligent, you must understand, as I have no doubt you do, that no-one is expected to reach a standard of perfection in driving a motor vehicle. What is expected is reasonableness and prudence and, of course, you are to be mindful of what you consider to be a reasonable standard. As judges of the facts, you bring - and I once again return to the fact - your commonsense, your experience of life and no doubt all of you drive motor cars and you understand what I am talking about without any difficulty, I am sure.

The standard you apply is an objective standard. It is not a matter of asking, 'What would I have done in the circumstances, whether I was the defendant or the plaintiff?' That is not how you do it. That is subjective. You stand back from it and you ask the question, 'All right, here is the scene unfolding. Was there a failure? Was there a breach?' by testing it in the way which I have described.

When you judge whether the defendant was negligent, you do not leave a case in negligence just hanging in the air. What I mean by that is this: let us assume there was a head-on collision and one of the drivers had a faulty tail-light and the negligence was that this car had a faulty tail-light. That is not negligence at all.

It really is something that is irrelevant. It is just hanging in the air. In other words, what you need to do is define in your own minds what was it that the plaintiff says here amounted to the negligence of the defendant. In other words, you just do not have it hanging in the air. You have to define it.

As I have said, it is ultimately up to you to decide what is reasonable, what is prudent, given the circumstances of this case and, of course given a whole range of things that you need to consider when you make an objective judgment, and that is the visibility at the time, the time of day, the weather conditions, the traffic conditions, the locality of the accident and maybe there will be other things that you can think of that you will consider to be relevant in weighing up and balancing the judgment you are to make.

At a glance

Court

Decision date

Before

Source

Judgment (152 paragraphs)

Boyd v Fielding [2009] VSCA 237 (21 October 2009)

Parties

Cases Cited (5)