Ashton v Morris [2017] QMC 20

MAGISTRATES COURTS OF QUEENSLAND CITATION: Ashton v Morris [2017] QMC 20 PARTIES: Richard Ashton (Plaintiff) v Irene Annette Morris (Defendant) FILE NO/S: 51572/16 DIVISION: Magistrates Courts PROCEEDING: Trial ORIGINATING COURT: Brisbane DELIVERED ON: 12 October 2017 DELIVERED AT: Brisbane HEARING DATE: 31 July 2017 A/MAGISTRATE: G Kahlert ORDER: The plaintiff’s claim is dismissed Judgment for the defendant on her counterclaim for $6,371.15 COUNSEL: C Templeton for the plaintiff SP Colditz for the defendant SOLICITORS: Ligeti Partners Lawyers for the plaintiff TASC National Limited for the defendant [1] This claim arises out of a collision between two motor vehicles on Marshall Street in Goondiwindi on 15 December 2015. [2] The plaintiff, Richard Ashton claims $5,840.27 damages for the repairs to his Ford motor vehicle registration number 150 TJL (‘the Ford’) which he says resulted from the defendant’s negligence and/or breach of statutory duty. [3] The defendant, Irene Annette Morris, denies any liability for damages and has counterclaimed $5,765.35 for damage to the vehicle she was driving, a Nissan motor -- 1 of 8 -- 2 vehicle registration number 112 TTC (‘the Nissan’). She pleads that this loss was caused by the plaintiff’s negligence and/or breach of statutory duty. [4] It was agreed that the collision occurred at about 12pm on 15 December 2015 on Marshall Street in Goondiwindi. There was no dispute about the description and registration numbers of the vehicles that the parties were driving. [5] Although quantum was not formally admitted, there was no cross-examination on quantum and in closing submissions, counsel for the plaintiff and defendant indicated that the quantum of the claim and counter-claim was not in dispute. [6] However, there are two quite different versions about how the collision occurred. The scene of the accident [7] Marshall Street in Goondiwindi has one lane of traffic travelling in each direction. The collision occurred on the section of Marshall Street between a bakery1 and the next cross road, Delacy Street. [8] For most of this section of Marshall Street, there is a wide parking area on each side of the road. This area is wide enough for cars to park facing front-in to the kerb. There is a solid line marked on the road between this area and the lanes of traffic. Although the plaintiff’s counsel referred to this as a ‘thoroughfare’, it is clearly not designed to be part of the lanes of traffic, so I will refer to it as ‘the parking area’. [9] The bakery is on the eastbound lane side of Marshall Street. After the bakery there is a vacant block of land, and then a house with a hedge around it2, which is on the corner of Marshall Street and Delacy Street. Before the intersection with Delacy Street, the parking area becomes much narrower due to garden beds built out onto each side of Marshall Street3. These were referred to by the plaintiff’s counsel during the trial as ‘traffic islands’, although they were actually on the side of the road. I will refer to them as ‘garden beds’. [10] Unfortunately, no evidence was led about the distance between the bakery and where the parking area narrowed at the garden beds, or the distance between the bakery and the intersection with Delacy Street. There was also no evidence about the width of the parking area outside the bakery compared to the narrower section where the garden beds were located. [11] The defendant’s Nissan had been parked front-in on the eastbound side of Marshall Street, near the bakery. The plaintiff was driving his Ford eastbound along Marshall Street. Plaintiff’s version [12] The plaintiff has pleaded that the collision occurred when the defendant was executing a right turn, a U-turn or a three-point turn into Marshall Street in front of his vehicle. 1 Exhibit 1, street view A shows a building marked as ‘Gunsynd Bakery and Café’ 2 Exhibit 1, street views A, D and E 3 Exhibit 1, street view D -- 2 of 8 -- 3 [13] The plaintiff gave evidence that he was driving eastbound along Marshall Street at about 50 km per hour, which was the applicable speed limit. He said he saw the defendant’s Nissan when it was “about 50 yards in front”4 of him, as it was reversing out. He described seeing the Nissan reverse then coming to a stop in such a way that it was parallel to the marked lane of eastbound traffic, facing east. He described the Nissan at this point as being in front of the bakery, “three quarters into the parking area and a quarter out”5 of the marked parking area, stationary and indicating right. [14] The plaintiff said that as he drove past he “pulled out a little bit to give her a bit more room so I could get past her”6, but did not cross over the dividing line into the oncoming lane of traffic. He heard a bang and the Nissan collided with his Ford. [15] The plaintiff’s vehicle sustained damage on the passenger side7. Defendant’s version [16] The defendant gave evidence that the collision occurred further along Marshall Street, closer to the intersection with Delacy Street. She said that she reversed out, entered the eastbound lane of traffic and drove up the road towards Delacy Street. She said she then stopped her Nissan in the eastbound lane “right on the dotted line, just on the inside of the dotted line”8 with her indicator on intending to do a U-turn. [17] The defendant’s evidence was that after waiting for an oncoming (westbound) car to pass, she commenced a U-Turn, at which point the plaintiff’s Ford came around from her right and hit her vehicle. [18] The defendant asserts that the plaintiff was overtaking her vehicle on the wrong side of the road when the collision occurred. [19] Photographs in exhibit 3 show the defendant’s Nissan sustained damage to the driver’s side front corner. The defendant gave evidence that her vehicle could not be driven after the accident because of damage to its steering. She said her vehicle “ended up on the - right on the corner of Delacy Street”9 on the other (westbound) side of the road near the footpath10. The evidence about how the accident occurred [20] The plaintiff and defendant have given two different versions of the collision. There is a dispute about:- (a) The position of the defendant’s vehicle immediately before the collision. The plaintiff says it was stationary in front of the bakery facing eastwards, with three-quarters of the vehicle in the parking area and one-quarter over in the eastbound lane. The defendant asserts her vehicle was further down 4 Transcript page 5, line 10 5 Transcript page 5, line 28 6 Transcript page 6, line 29 7 Exhibit 2 8 Transcript page 21, line 16 9 Transcript page 21, line 4 10 Transcript page 22, lines 24-30 -- 3 of 8 -- 4 the road from the bakery, wholly in the eastbound lane of traffic, stationary near the centre dividing line and indicating right. (b) Where the accident occurred. The plaintiff asserts it occurred in front of the bakery. The defendant says it occurred further down the road, closer to the intersection with Delacy Street. (c) Where the plaintiff was driving immediately before the collision. The plaintiff maintains he was wholly in the eastbound lane. The defendant says he crossed onto the other side of the road. [21] There is no evidence from any independent witnesses who actually saw the collision occur. [22] The plaintiff gave oral evidence and was cross-examined. An automotive assessor employed by the plaintiff’s insurer, Youi Insurance, Stephen Horvath, gave evidence and a copy of an eight page bundle of documents he referred to as his ‘report’ was admitted as Exhibit 6 (with the expression of an opinion by him at page eight deleted). He was not cross-examined. Exhibit 6 and Mr Horvath’s evidence was limited to issues of quantum and does not assist me in resolving the factual disputes about where and how the accident occurred. [23] The defendant gave evidence and was cross-examined. She also called evidence from Allen Chen who was one of two police officers who attended after the collision occurred. Mr Chen is no longer a police officer and now works in New South Wales, so with the consent of the plaintiff, he gave evidence and was cross-examined by telephone. A copy of a sworn, signed statement of the other attending police officer, Constable Andrew Joshua Cameron (with one paragraph redacted) was admitted11 pursuant to s.92 Evidence Act 1977 on the basis it was accepted that Constable Cameron was either out of Queensland, or could not with reasonable diligence be found or identified. [24] There was no police report concerning the collision, and the evidence of Mr Chen and statement of Constable Graham were not particularly helpful in determining where and how the collision occurred. [25] Mr Chen arrived after the collision had occurred. In evidence-in-chief he said he thought the defendant’s vehicle was on the side of Marshall Street near the garden bed, but in cross-examination agreed that he could not recall where the vehicles were when he arrived. A significant portion of the evidence led from Mr Chen concerned his views as to whether it was possible to pass within the eastbound lane if one-quarter of a vehicle was in that lane. He gave evidence that he thought it was possible, but the passing motor vehicle would need to cross into the lane of oncoming traffic. He was not cross-examined about this aspect of his evidence. I found Mr Chen gave his evidence honestly and accept his evidence, but it is of limited assistance in determining the question of how and where the collision occurred. [26] Paragraph 6 and 8 of Constable Cameron’s statement record the versions of the collision given to him by the plaintiff and defendant respectively. These versions are consistent with the plaintiff’s evidence about how the collision occurred. 11 Exhibit 10 -- 4 of 8 -- 5 [27] The copy of Constable Cameron’s statement indicates different possible locations for the collision. At paragraph three, he refers to being called “to attend the intersection of Marshall and Delacy Streets Goondiwindi in relation to a 2 vehicle traffic crash”, which would support the defendant’s evidence that the point of impact was further along Marshall Street past the bakery. [28] However, in paragraph 10, he says “There is numerous cross intersections on this section of roadway including the intersection of Delacy Street which is only 50 metres East of where the crash occurred”. This would seem to place the collision closer to the bakery, consistently with the plaintiff’s version. [29] Given the inconsistencies in his statement and that Constable Cameron was not available to give evidence and be cross-examined, and noting that the defendant has given evidence of the collision occurring in a different way, I find the evidence in this statement is unreliable and give it very little weight. [30] So, in the absence of any useful corroborative evidence from independent witnesses, that leaves me with the conflicting evidence of the plaintiff and defendant. Evidence of the plaintiff and the defendant [31] Obviously, both the plaintiff and the defendant have a vested interest in their version of the collision being accepted, and I have assessed their evidence bearing this in mind. [32] In general, I found the plaintiff’s evidence was unreliable. For example, in evidence- in-chief, he initially said that after the collision his vehicle stopped in the middle of the road12, but then later said he stopped in the eastbound lane13. [33] Some of the plaintiff’s answers to questions in cross-examination suggested he was not sure about what had happened. For example, when asked about whether he slowed down as he approached the defendant’s vehicle, he said “I might’ve slowed down. I don’t know. I might’ve slowed down, but I would’ve – would’ve slowed down to get round her to go past her”14, and that he had “probably done it automatically probably”15. [34] The plaintiff also referred to attending the bakery “every week”16 himself and described how he would reverse out, position his car one quarter into the road and three-quarters into the parking area, then indicate to move out into that lane17. I formed the impression from this evidence that the plaintiff may have been reconstructing what had occurred having regard to what he normally did after parking at the bakery. [35] Whilst the plaintiff said that the defendant’s vehicle was one-quarter over into the eastbound lane, he marked exhibit 4 to indicate the driver’s side wheels of the defendant’s vehicle were just over the solid line between the parking area and the 12 Transcript page 7, line 45 13 Transcript page 8, line 35 14 Transcript page 11, line 24 15 Transcript page 11, line 31 16 Transcript page 14, line 11 17 Transcript page 14, line 29 -- 5 of 8 -- 6 lane. In cross-examination, the plaintiff explained the discrepancy by saying it was “not a good drawing”18. In response to leading questions in re-examination, he agreed that he intended to show his estimate of one-quarter of the vehicle extending into the lane having regard to the portion of the vehicle extending beyond the wheels. The plaintiff’s counsel submitted this was a minor discrepancy arising because the diagram was not drawn to scale. [36] I also found the plaintiff’s evidence about where the defendant’s vehicle ended up immediately after the collision to be somewhat evasive. In cross-examination, he initially said that “they had to get a truck to get a - to put it on a – on a truck to get it moved”19 . In answer to the next question, he said that he didn’t remember her car being moved, as he was moving his car and “her car wasn’t blocking the traffic”20. Two questions later, he said that he “never noticed her car”21 after the collision. I also note that the defendant gave evidence that she spoke to the plaintiff after the collision in front of where her car ended up22. [37] Finally, the plaintiff said in cross-examination that after the collision, he moved his car to the side of the road “just past the- the exit road. There’s a - there’s a left-hand turn there and I just parked it just to the other side of the left-hand turn”23. It strikes me as unusual that if the collision occurred outside the bakery, and there is the wide parking area until just before Delacy Street, that the plaintiff would drive his car further down the road past that intersection. [38] I found the defendant gave her evidence in a clearer, more straight-forward manner. In my view, she answered questions honestly and made concessions where appropriate. For example, in cross-examination she acknowledged that her attention when performing the U-turn was focussed on the oncoming westbound traffic24. [39] The defendant said she had not been parked directly in front of the bakery, but in front of the house before the bakery. She was unshaken in her evidence that she had reversed out and completely entered the eastbound lane, changed gears and travelled some distance in that lane, past the bakery, before stopping about 25 metres before the garden beds to execute a U-turn. [40] The plaintiff also gave an explanation in cross-examination for why she stopped to execute the U-turn before Delacy Street. She gave evidence that when she left the bakery she had not initially intended to do a U-turn as she was planning to turn right into Delacy Street to go home. She said she remembered that she needed fuel, so decided to execute a U-turn in order to go back into town to get fuel before going home25. [41] The defendant was also unshaken in her evidence that her Nissan came to a stop after the collision on the opposite side of the road on the corner of Delacy Street. 18 Transcript page 10, line 36 19 Transcript page 13, line 19 20 Transcript page 13, line 26 21 Transcript page 13, line 39 22 Transcript page 22, line 41 23 Transcript page 13, line 14 24 Transcript page 28, line 38 25 Transcript page 25, line 33 -- 6 of 8 -- 7 [42] Counsel for the plaintiff said that the defendant’s version of the accident was implausible. He submitted that the defendant’s evidence that she began her U-turn immediately after waiting for oncoming traffic to clear meant that the plaintiff would have been overtaking in the face of oncoming traffic, and this was implausible. [43] This, of course, depends on how soon the defendant commenced her U-turn after the oncoming traffic had passed. In her evidence-in-chief, the defendant said “there was a car coming the other side of the intersection. So I let it pass before I proceeded to do the U-turn”26. In cross-examination she said there was an oncoming car “So I let him go past before I did my U-turn”27. When asked if this was immediately after the car passed, she replied “Yeah”28. She was not asked about how much time had elapsed before she began that U-turn after the oncoming traffic had gone by, nor was there any evidence about the speed of that oncoming traffic. [44] In my view, given the lack of evidence as to how quickly the defendant began her U- turn after the oncoming car had passed, it is not implausible that by waiting to commence her U-turn until the oncoming car had passed, that oncoming car would also have passed the plaintiff before he began overtaking. [45] The plaintiff’s counsel also submitted that given the damage to the plaintiff’s vehicle was mostly to the rear passenger door and rear mudguard area, the plaintiff’s vehicle must have been almost past the defendant’s vehicle when the collision occurred. [46] However, this would also depend on the angle of the point of impact and the relative speeds of the vehicles. Whilst the plaintiff said he was travelling at about 50km per hour, there was no evidence about the defendant’s speed, or the angle of impact. I do not accept that the photographic evidence of damage to the respective vehicles makes the defendant’s version of the collision improbable. Findings [47] Given my reservations about the plaintiff’s evidence, I consider the defendant’s evidence is more reliable and accept the defendant’s evidence as to how the collision occurred. [48] I find the defendant reversed fully out into the eastbound lane, then drove in that lane towards the intersection with Delacy Street, stopped about 25 metres before the garden beds and indicated right to make a U-turn intending to travel back in the opposite direction to get fuel before she went home. [49] I find the defendant was stationary and wholly within the eastbound lane of Marshall Street indicating right for a U-turn, when the plaintiff attempted to overtake her vehicle. As the defendant commenced her U-turn, she collided with the overtaking plaintiff. [50] I find the plaintiff overtook to the right of the defendant’s vehicle when it was making a U-turn from the centre of the road, in contravention of s.142 Transport Operations (Road Use Management - Road Rules) Regulation 2009. I also find the collision was caused wholly by the plaintiff’s negligence in failing to exercise reasonable care, skill 26 Transcript page 20, line 44 27 Transcript page 28, line 17 28 Transcript page 28, line 22 -- 7 of 8 -- 8 and judgment in choosing to overtake the defendant’s vehicle when it was not safe to do so because the defendant was indicating right whilst stationary in the centre of the eastbound lane. [51] Given these findings, the plaintiff has not satisfied me on the balance of probabilities that the collision was due to the negligence or breach of statutory duty of the defendant. [52] I am satisfied on the balance of probabilities that the collision and the consequent damage to the defendant’s vehicle are a result of the negligence and breach of statutory duty of the plaintiff. Conclusion [53] I dismiss the plaintiff’s claim. I find for the defendant on her counterclaim. [54] As the quantum of the counterclaim is not disputed, I will give judgment for the defendant on her counterclaim against the plaintiff for $5,765.35 plus interest as claimed at 5.75% per annum of $605.80, a total of $6,371.15. Judgment [55] I dismiss the plaintiff’s claim. [56] I give judgment for the defendant on her counterclaim for $5,765.35 plus interest, a total of $6,371.15. [57] I will hear the parties as to costs. G Kahlert Acting Magistrate -- 8 of 8 --