Tuesday 9 June 2009
YAKMOR v HAMDOUSH
Judgment
1 GILES JA: The appellant was injured in a motor vehicle accident on 2 June 2004. In proceedings in the District Court he alleged that the accident was caused by the negligent driving of the respondent. Damages were agreed, subject to approval, but liability was in issue. Balla DCJ was not satisfied that the appellant had shown a breach of duty of care on the part of the respondent.
2 The appellant was driving a Honda Civic, with passengers Mohamad Obeid in the front passenger seat and Hussain Alamaddeine in the driver's side rear seat. The respondent was driving a Holden Commodore, with passengers Tofic Alamaddeine in the front passenger seat and Ramy Abdelhalim in the passenger's side rear seat. The drivers and passengers were friends, 17 or 18 years of age save that Tofic Alamaddeine was 21 years old. They were returning from an evening of fishing in the Watsons Bay area.
3 The accident occurred in Homer Street, Kingsgrove at about midnight. Both vehicles turned right into Homer Street from Bexley Road. From there the roadway was initially straight with an uphill grade. It then took a gentle right hand curve. Part way though the curve the roadway crested and dropped into a dip, following which was another straight section with an uphill grade. Homer Street was marked for its length relevant to the accident with a double unbroken centre line and allowed for a single lane of traffic in each direction; however, it was quite wide, with room for parked vehicles and the passage of traffic in each lane.
4 About 680 metres from Bexley Road, and some way up the second uphill grade, Arinya Street joined Homer Street to the left of the driver of a vehicle travelling as these vehicles were. Where Arinya Street entered Homer Street a "crown" was formed intruding into Homer Street, so that a vehicle driving along Homer Street would encounter a 10 metre hump, more pronounced on the left side of the lane.
5 The appellant's vehicle left the road about 50 metres beyond the Arinya Street intersection. It collided with a tree on the left side footpath about 70 metres past the intersection, towards the top of the uphill grade. Mohamad Obeid was killed, and the appellant and Hussain Alamaddeine were injured.
6 The appellant's case was opened that the respondent's vehicle was in front of his vehicle just prior to the accident; that as the vehicles proceeded up Homer Street, the respondent's vehicle moved towards the centre line of Homer Street and slowed down, which (in the absence of parked vehicles) allowed the appellant's vehicle to move beside the respondent's vehicle; that the two vehicles travelled down Homer Street at between 50 and 60 kilometres per hour with the windows down and the two drivers engaged in conversation; and that the respondent's vehicle then pulled slightly in front of the appellant's vehicle and veered towards it, causing it to go off the road and hit the tree.
7 This case, in which the respondent's negligence lay in veering towards the appellant's vehicle causing it to go off the road, was rejected by the trial judge. Her Honour found that the appellant drove at about 60 kilometres per hour across the hump at the Arinya Street intersection, parallel to and about one and a half metres out from the kerb of Homer Street. The hump and the weight of the driver and passengers caused the vehicle to experience a significant up and down movement and "bottom" on the departure side of the hump. The drag of the bottoming caused the vehicle to pull to the left, and it came into contact with the kerb. The appellant responded by steering to the right, which caused his vehicle to come into contact with the respondent's vehicle; in this respect, her Honour described scrape marks on the passenger's side of the respondent's vehicle from just in front of the rear wheel arch to the rear of the vehicle, and together with other indicia found that the damage to the two vehicles was consistent with the respondent's vehicle being half a car length ahead of the appellant's vehicle and the appellant's vehicle moving up the passenger's side of the respondent's vehicle (that is, travelling slightly faster than the respondent's vehicle). The contact with the respondent's vehicle did not cause the appellant's vehicle to deviate, but the appellant reacted by steering to the left, and this resulted in his vehicle mounting the gutter and colliding with the tree.
8 The appellant did not take issue with these findings. It was submitted on appeal that the respondent's negligence lay in driving his vehicle in close proximity to the appellant's vehicle and allowing the appellant's vehicle to come up on the passenger's side of his own vehicle, so that the occupants of the two vehicles could talk to each other. This was negligent, it was said, because it left no margin for error in the event of an incident which foreseeably could occur in the nature of that which did occur. The appellant accepted that, for breach of duty, it was necessary that the driving in this manner be consensual; relevantly, with the respondent's participation. It was not enough that the appellant drove to move up on the passenger's side of the respondent's vehicle and partially overlap it.
9 In elaboration, the appellant submitted that it should have been found, and should be found, that the two vehicles were side by side as they passed the Arinya Street intersection, with the occupants talking between the vehicles. He said that the explanation for the respondent's vehicle being half a car length ahead of the appellant's vehicle was that the progress of the appellant's vehicle had been retarded by bottoming on the hump, and that the explanation for the appellant's vehicle moving up the passenger's side of the respondent's vehicle was that the respondent had braked when becoming aware of imminent contact or contact between the two vehicles. Retardation had some support in the expert evidence, but braking had no support in the evidence. That the two vehicles were side by side, at least sufficiently for the occupants to be talking between the vehicles, at about the Arinya Street intersection was according to the submission the basis for finding the consensual driving necessary for breach of duty.
10 Although it is doubtful that the pleadings or the conduct of the case embraced it, a brief submission of this kind was made at the trial. The trial judge correctly recorded the submission that the respondent "was negligent in driving in a common purpose way beside the plaintiff and putting his car in that position".
11 Her Honour relevantly dealt with the submission -
"Counsel for the plaintiff did not identify the action he was suggesting the defendant should have taken. It seems however that there would have been a limited number of available options - either to travel more slowly or to stop.
I accept that the defendant would or should have had some idea of the location of the plaintiff's vehicle because the headlights were on and it was dark. It is likely that during the journey from the eastern suburbs to Homer St the occupants of the two vehicles did speak to each other through open windows.
However it was not suggested that at any relevant time the defendant was exceeding the speed limit. He was driving about one metre to the left of the centre line. In that area of the road was wide enough for two vehicles to travel side by side although there was only one marked lane.
The accident occurred as a consequence of the plaintiff losing control of his vehicle because it had bottomed on the Arinya St intersection hump. That was unrelated to any act of the defendant. The fact that the defendant's vehicle was 'in the way' after the plaintiff lost control is not an act of negligence on the defendant's part - he was travelling within the speed limit on the correct side of the road."
12 The appellant submitted to the effect that this reasoning did not meet his submission of driving "in a common purpose way", or adequately deal with the evidence on which he relied for a finding that the two vehicles were side by side at about the Arinya Street intersection with the occupants talking between vehicles. The evidence was in a police statement of Hussain Alamaddeine and evidence given by the respondent's sister of an admission said to have been made by the respondent.
13 Hussain Alamaddeine gave his statement on 23 September 2004. It included -
"5. Shady [the appellant] drove along Homer Street towards Kingsgrove Road. Mohamad [the respondent] was driving the Commodore in front of us. Shady drove up a hill, he was probably doing about 60 km/h. I couldn't see the speedo or anything but it didn't feel any faster than that. Mohamad was just ahead of us and the front driver's side of Shady's car was just level with the back passenger side of Mohamad's car . There weren't any cars parked on the side of the road or anything so the road was pretty clear.
6. Shady got to the top of the hill and the bottom of the car kind of hit the hump in the road. It wasn't a speed hump, it was just like the rise in the road at the top of the hill. I felt the bang on the bottom of the car, I suppose with all the weight in it the car was lower to the ground than normal. As soon as the car hit that hump Shady kind of lost control of the car.
7. The car swerved to the left and the front wheels just scrapped [sic] against the gutter, it didn't hit it hard. The car then swerved back to the right and it hit the back passenger side of Mohamad's car. It was just like a graze. Shady's car then swerved back to the left and it went up the gutter and hit the tree.
…
10. Just before the accident as we were driving along Homer Street we were just talking with each other . We weren't racing the other car driven by Mohamad or anything like that or mucking around. We were just on our way home." (emphasis added)
14 The trial judge recited these paragraphs from the statement in finding how the accident occurred, but did not specifically advert to the parts I have emphasised when coming to her conclusion as to breach of duty.
15 The respondent's sister gave evidence of asking him on the night of the accident what happened, and receiving his reply, "We were just driving and we were talking to one another, and then the next thing they hit, and then he landed into the tree, and that was it". This was repeated in the words -
"Q. Can I ask you did you repeat the conversation then as best you remember it? Those words you just said, is that what you recall him saying?
A. Yeah, he said that they were speaking to one another, they were speaking to one another.
Q. Yes.
A. And then they hit into each other, and then the next thing he knew that Shady was in the tree."
16 The trial judge referred to this as evidence on which the appellant relied for an admission "that the cars were driving side by side and that they were talking at the time of the accident". While accepting "that at some stage the occupants of the two cars may have been talking to each other", her Honour said that the admission "is not clearly relevant to the moments before impact and does not overcome the physical evidence. The vehicles were not side by side when they collided". The "physical evidence" was the evidence of the scuff marks and other indicia. At least on appeal, the appellant relied on this evidence as an admission going not to the moment of the contact between the two vehicles, but to the preceding time when the vehicles passed the Arinya Street intersection.
17 There was, however, further evidence on which the respondent relied.
18 First, the police conducted an ERISP interview with the respondent about three weeks after the accident. The respondent said to the effect that the appellant's vehicle was behind his vehicle and he was not really looking at it, he was just driving; he felt a "nudge", the contact with the appellant's vehicle, and saw the vehicle "sort of behind me and on the left and that's it". He said he did not notice the appellant "moving around on the road behind [him]" or change his own position on the road. His account was not consistent with the cars travelling side by side in Homer Street. With an agreed correction to the transcript in evidence, the questions and answers included -
"Q138 Now as you were driving along just before you felt this bump what were you doing in the car, was Tofic doing something in particular or was .- - -