BETWEEN : LLOYD FREDERICK COLLIER as Trustee for COLLBECK UNIT TRUST

TREVOR JAMES BECKWITH as Trustee for COLLBECK UNIT TRUST

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Appeal from Magistrates Court - Intersection collision - Turns on own facts

Fox v Percy [2003] HCA 22; [2003] 214 CLR 118

1 FENBURY DCJ: This is an appeal from the Magistrates Court. The action concerned liability for and quantum of damages arising out of a collision between two motor vehicles. Each driver blamed the other.

2 The appeal is by way of re-hearing which involves a new determination of the rights and liabilities of the parties.

3 At about 5.30 pm on 30 March 2009 Mrs Beckwith was driving her Holden Astra, a small white sedan, west in Hodges Drive. This road has two lanes each way with a wide median strip (see page 74 of the Appeal Book). There is dispute about the lane Mrs Beckwith was travelling in but her speed was 70 km per hour, being the limit.

4 Mr O'Bree, in his 4WD Colorado, was travelling south in Country Club Boulevard being a road which terminated at Hodges Drive. Having crossed the east bound lanes of Hodges Drive, Mr O'Bree had entered the angled break in the median strip so as to turn right and travel west in Hodges Drive, being in the same direction as Mrs Beckwith was travelling (see page 74 of the Appeal Book).

5 Having entered Hodges Drive and travelling west in the northern lane (lane nearest median strip also known as right-hand lane) the left-hand side of Mr O'Bree's 4WD comprising the rap around end of the vehicle's stainless steel front bull bar/bumper bar structure, came into contact with the right-hand rear door panel of Mrs Beckwith's Astra.

6 Apart from being smeared with white paint there was no damage to the 4WD's bull bar.

7 Mrs Beckwith's Astra was much more severely damaged. The estimated cost of repairs was about $9,000 including parts and labour.

8 There was dispute between the parties about the lane in which Mrs Beckwith was travelling immediately prior to the collision. She maintained that she was travelling in the right-hand or median strip lane at all times, and that she did not change into the right-hand lane from the left-hand lane at any relevant time.

9 Mr O'Bree maintained that Mrs Beckwith was in her left-hand lane prior to the collision and that she changed lanes into the right-hand lane after he had entered that lane from the median strip lane. In other words according to him she drove into his side.

10 There was also disputation about whether the setting sun had any causative influence in the accident. Mrs Beckwith maintained that it did not. Mr O'Bree maintained that Mrs Beckwith had apologised for the accident and blamed the glare from the sun.

11 Thus it was that Mrs Beckwith brought a claim against Mr O'Bree alleging that he was negligent, which Mr O'Bree denied. Indeed Mr O'Bree asserted that it was Mrs Beckwith who was negligent.

12 In her reasons the learned magistrate, having reviewed the evidence said of the evidence, of Mrs Beckwith and Mr O'Bree:

As to Mrs Beckwith and Mr O'Bree, I consider that each gave clear and plausible evidence. This is not a case where one version of events is inconsistent with the contemporaneous written statements such as a police statement or clearly implausible given the road conditions at the time. No independent expert evidence was led to comment on what the photographs of the damage of the vehicles revealed. That is, there was no expert evidence that from the photographs of the damage to the vehicles an inference can be drawn as to which version of how the accident occurred was more likely than not.

In the absence of such expert evidence I consider it would be unsafe for me to make an assessment of which version of the accident was more likely. For the reasons given, therefore, I do not consider the claimant has discharged the onus of proof and therefore consider the claim against the defendant should be dismissed.

If I am wrong on this conclusion I must go onto determine whether Mr O'Bree's driving caused or materially contributed to the damage suffered by the claimant. I consider on the present evidence that both drivers were equally responsible for the accident.

Mr O'Bree was making a right-hand turn in the front of oncoming traffic. He was obliged, therefore, to drive in a manner to ensure it was safe to enter Hodges Drive. On his own testimony he pulled out in front of oncoming traffic, albeit that he says that Mrs Beckwith was in the left-hand lane.

However, I consider that in not doing so he did not - Mrs Beckwith - sorry. However, I consider that in not doing so he did not properly allow for the possibility of the claimant changing lanes. In failing to do so I consider that he, in some way, contributed to the damage suffered by the claimant.

Further, as Mrs Beckwith approached the median strip she had seen Mr O'Bree's vehicle. Despite this she says she maintained the speed limit and did not take the precaution of slowing to allow for the possibility of Mr O'Bree pulling out. For these reasons I consider both drivers partially to blame for the accident and therefore provisionally would apportion liability on a 50/50 percent basis.

The learned magistrate erred in law in dismissing the claimants claim on the basis that the claimants had failed to discharge their burden of proof when the learned magistrate, having considered the entirety of the evidence, was able to determine, and did determine, that the claimant and the defendant were equally responsible for the accident.

14 The proposed final order therefore sought by the appellant included an order that:

The claimant do have judgment against the defendant in accordance with the learned magistrates determination of liability, namely 50/50 percent being the sum of $4,920.20 together with interest at the rate of 6 percent per annum pursuant to s 12 of the Magistrates Court (Civil Proceedings) Act 2004, from 30 March 2009 until payment of judgment.

15 Mr O'Bree, in his Answer to the appeal basically asserts that her Honours dismissal of Mrs Beckwith's claim should be upheld and that she had not erred in dismissing the claim.

16 Mrs Beckwith stated that the sun was going down when she was driving along Hodges Drive but that it was not in her face. She was adamant that she travelled in the right-hand lane, westbound, at all times, intending to turn right at Marmion Street which was about 1 km down the road. She said that she was travelling at 70 kms per hour.

17 Mrs Beckwith said that she first saw Mr O'Bree 'coming across, just driving to the median strip'. At ts 10 she said:

As I was driving up he entered into the median strip and I just assumed that he would stop because I was oncoming traffic and then the next thing there was a big bang.

18 Mrs Beckwith's vehicle sustained impact damage on the 'back passenger door on the driver's side' (ts 11).

Moments later, after they had exchanged particulars, she said Mr O'Bree said:

You probably didn't see me - the sun was in your face.

20 Later, in cross-examination, Mrs Beckwith said she did not swerve to the left at all, nor apply her brakes before the collision (ts 22). She agreed that the sun was facing her but was adamant that it was not in her face.

21 Mr O'Bree said that he entered the right-hand westbound lane of Hodges Drive 'when the lane became available'. He said that he entered the lane and continued on his journey and Mrs Beckwith's car hit him and 'obviously came from the left of my vehicle'.

22 Mr O'Bree said that Mrs Beckwith said 'sorry, I got blinded by the sun'. He gave evidence that the sun was a problem because of the time of year and because the road goes uphill at the accident scene. He said that 'driving along one is facing pretty directly into the sun'. Mr O'Bree said that his vehicle was stationery and waiting in the median area. He said that he crawled out because the lane was clear, meaning that the right-hand lane closest to the median strip had no vehicle in it.

23 In cross-examination at ts 42 Mr O'Bree was asked:

What I am asking you is that she was some distance down the road, wasn't she, when you went to pull into the middle of the median strip?---Sure.

24 Mr O'Bree denied that the Astra was in the right-hand lane and that he thought it was going to turn right into Country Club Boulevard.

You say there was heavy glare from the sun that is to your right?---For sure.

But you were more at an angle though, weren't you? You weren't facing it directly?--- Yeah well once I got into the lane yes the sun was bad because I had to turn left at the Marmion intersection after the accident and it was a very bad - - -

Now you agree that you shouldn't enter an intersection when it's not safe to do so? That's not what you did on this occasion is it Mr O'Bree?---Yes I did, I entered safely.

Now you say in the statement that you focused on the Holden, that it was maintaining a steady position in the inner lane. Why didn't you just wait until she passed you?---I would never get out of that intersection, I'd be still there today.

...

So you wanted to clear that intersection as quickly as you could?---I think that's pretty wise in peak hour traffic.

As you decided to turn from the Country Club Boulevard and started to move Mrs Beckwith was roughly 100 metres away from you and moving fast - Would you agree with that?---That would probably be about right.

100 metres is not really far, is it, when you're travelling at 70kms?---When your doing 70 km per hour it doesn't take long either.

Question - Again given that your such a careful driver and she is only 100 metres away did it ever occur to you that she might change lanes?---Would she indicate?

Well I'm asking you the question? You're not asking me the question?---If she is going to indicate to change lanes certainly but there was no indication of that.

Again why didn't you just stop and wait for her to pass?---Like I said before, I'd be still there at 10 o'clock at night.

You were actually focused on the road ahead and not on the Holden weren't you?---I was looking at - normal driver, aware of everything around me, not just one thing.

So you really weren't focused on her vehicle?---You can't focus on one thing. You've got other - you've got road ahead of you, vehicles - - -

28 Then at ts 45, Mr O'Bree's statement par 7 was put to him the second sentence:

I drove very slowly onto the middle of Hodges Drive and looked left again, maintaining my focus on the Holden. Although it was near the intersection it was still a distance away and maintaining a steady position well inside the inner lane. I then again very slowly edged out onto the outer lane.

...

Now you said just earlier that you weren't focused on anything particular, that you're driver aware, you're looking at multiple things in the road ... But yet in your statement it says you were focused.---Maintaining my focus, which means I kept looking at - looking for any vehicle on the road and the Holden was actually one of them.

...

,...I was focusing on any danger on the road, not on just one thing. You can't focus on only one thing.

30 At ts 46 Mr O'Bree described that the Holden 'grazed' the left-hand front side of his vehicle. Mr O'Bree said that his airbag did not go off, there was no jolt to the car. It was virtually a scrape.

... that Mrs Beckwith never said that she was blinded by the sun or words to that effect.---No, well, she did

Sorry you said that she did. What you mean by 'words to that effect'? Can you not actually recall what she said to you after the - - -?---Well, either, 'Couldn't see for the sun' or 'blinded by the sun' whichever way but the sun was the culprit.

32 Ms Robin Boyd was a passenger with Mr O'Bree and she was his current partner. She gave evidence that she did not see Mrs Beckwith approaching the intersection when she looked left but she appears to exclude cars that were 100 metres away (ts 58).

33 After the accident, (ts 59) Ms Boyd said that she got out of the 4WD and she was not near or next to the conversation that took place. She said that the reference in her statement that she had heard Mrs Beckwith apologise to Mr O'Bree and plead the sun as an excuse was a 'miscommunication' between her (Ms Boyd) and the solicitor being counsel for the respondent Mr Carlos.

34 Mr O'Bree's evidence is that the collision occurred only after he had slowly entered the westbound right-hand lane of Hodges Drive and that Mrs Beckwith, blinded by the sun, had collided with his 4WD after changing lanes from the left-hand lane to the right-hand lane.

35 Given the sun sets in the west, it is difficult to see how it could have played a role in Mrs Beckwith management of her motor vehicle with respect to a 4WD entering from Hodges Drive to the north. On Mr O'Bree's accident scenario, to be in a position ahead of Mrs Beckwith, some 20 m further west down Hodges Drive, he must have been clearly visible in the moments beforehand, whilst he negotiated the crossover of the median strip.

36 It seems to me highly unlikely that the sun could have had any adverse effect upon Mrs Beckwith. She was travelling at 70 km per hour. Mr O'Bree's 4WD, on his evidence, would only have been ahead of her and into the sun if it ever was for a fraction of a second. She did not collide with the rear of the 4WD.

37 Mr O'Bree says that she turned into the side of his vehicle, in the course of changing lanes, blinded by the sun.

38 I think that accident scenario is 'glaringly improbable' (no pun intended) in the sense that phrase is used by the High Court in Fox v Percy [2003] HCA 22; [2003] 214 CLR 118.

39 The learned magistrate found both drivers to have given clear credible evidence such that she felt unable to prefer or reject either account over the other.

40 Thus her Honour felt Mrs Beckwith had failed to meet the civil standard of proof and failed to prove her case.

41 In my view Mr O'Bree's explanation for the collision was glaringly improbable. Once his assertion that Mrs Beckwith had been blinded by the sun is put aside then there is no likelihood Mrs Beckwith would turn her vehicle into another slower vehicle.

42 In my view Mr O'Bree, having entered Hodges Drives from a terminating road, was obliged to give way to traffic in Hodges Drive and obviously failed to do so. Regulation 56 and reg 65 of the Road Traffic Code 2000 apply. And this is so given his 4WD collided with a passing vehicle travelling at 70 km per hour.

43 I would also add that in my view Mr O'Bree's obligation to give way to traffic in double lane Hodges Drive included an obligation to look for and ensure there was no vehicle changing from the left-hand lane into the right-hand lane in Hodges Drive, at the relevant stage.

44 In my view Mr O'Bree was negligent and liable for damages.

45 Her Honour made provisional assessment of damages on the basis that each of Mrs Beckwith and Mr O'Bree were equally responsible for the accident. That provisional view seems to have been based upon an acceptance of the criticism that each driver made of the other which necessarily means some rejection of the evidence of what each driver said about his/her own allegedly blameless driving.

46 The 'provisional' assessment of damages made by her Honour is not challenged by Mrs Beckwith in this appeal.

47 Consequently there should be orders made in the form of those proposed in the notice of appeal which of course require calculations for interest.