Ali v Simpson [2014] QCAT 663

CITATION: Ali v Simpson [2014] QCAT 663 PARTIES: Abera Ali (Applicant) v Kyle Simpson (Respondent) APPLICATION NUMBER: MCDO88-14 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 23 September 2014 HEARD AT: Brisbane DECISION OF: Adjudicator Bertelsen DELIVERED ON: 17 December 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The applicant pay to the respondent the sum of $11,428.99. CATCHWORDS: Motor vehicle collision – road related area – parked vehicle – obligation to give way – entering traffic roadway Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld), s 74 APPEARANCES: APPLICANT: Abera Ali represented by Mr Mackenzie RESPONDENT: Kyle Simpson represented by Darren Moore, Solicitor REASONS FOR DECISION Application [1] By application filed 17 January 2014 Abera Ali (‘Mr Ali’) seeks the sum of $5,184.56 being damage sustained to his 1997 Toyota Camry (‘the Toyota’) as a result of a collision with a 2008 Suzuki 750 Motorcycle. Mr Ali also sought relief from payment of $11,428.99 the loss and damage -- 1 of 5 -- 2 counterclaimed for by Kyle Simpson (‘Mr Simpson’) the rider of the Suzuki Motorcycle (‘the Suzuki’). Background and Evidence [2] The collision occurred in daylight hours on 4 July 2013 on Sandgate Road, Boondall some 200 metres plus inbound from the Gateway overpass. The carriageway was a two lane each way carriageway with a grassed median strip dividing the inbound and outbound lanes. Weather conditions were fine. A 70 km speed limit applied. [3] Mr Ali had parked his Toyota in the parking lane on Sandgate Road some 200 metres plus inbound of and heading south from the Gateway Motorway overpass. [4] Mr Ali had attended a motor wreckers looking for parts for his vehicle. The wreckers premises was closed. He got back into his Toyota vehicle. He stated he indicated his intention to move into the left lane of the two lane carriage way heading south (two lanes south, two lanes north and grassed median strip in the centre) by looking over his shoulder twice and operating his right hand indicator he said at least five or six times before moving from his parked position. He said the Suzuki was the first observable vehicle and that it was some 200 metres away travelling in the right lane heading inbound. [5] Mr Ali did not seem able to recall whether his observation was as a result of looking in rear vision mirrors or over his shoulder. Mr Ali did not recall seeing Mr Simpson’s Suzuki move from the right lane to the left lane. Mr Ali said he moved into the left lane; that he put his manual Toyota into first and then second gear and was travelling at about 10 to 20 km when impacted he insisted from the rear. [6] Three photos of the Toyota were introduced into evidence1 two of which clearly indicated direct impact to the offside rear quarter panel (panel directly behind the driver’s side rear passenger door). Mr Ali insisted the impact was to the rear. The same two photos indicated no damage as such to the rear bumper bar. [7] Mr Ali said the boot was out of alignment. One of the three photos produced taken from the rear of the Toyota clearly indicated the boot out of alignment as a result of the rear side impact. However Mr Ali continued to insist he was impacted from the rear. [8] When it was put to Mr Ali that it was some 280 metres from the point of impact back to the Gateway overpass he said he thought it was 200 plus metres and that it was just a good guess. [9] Two photos looking north from the point of impact back to the Gateway overpass were introduced into evidence.2 Looking north they depicted a 1 Exhibit 3. 2 Exhibit 4. -- 2 of 5 -- 3 bend to the right. Mr Ali agreed there was a slight bend in the road which was otherwise generally level. Visibility was unimpeded. [10] It was put to Mr Ali that it would be more difficult to see a vehicle travelling in the left lane given the curvature in the roadway. Mr Ali indicated ‘its okay for me’. [11] Mr Ali said the Suzuki was in the right lane and trying to move into the left lane; that at the time of the collision his vehicle was slightly over the solid white line (the line delineating the parking lane). [12] Mr Simpson said he was coming from the Subway premises Deagon travelling to Virginia; that he was in the right lane before the Gateway overpass; that he changed into the left lane just before the Gateway overpass; that he saw Mr Ali’s vehicle parked on the left side of the road outside Kelley’s Wreckers; that he was only a matter of metres away from the Toyota when it pulled out into Sandgate Road. He said he braked with no way of avoiding a collision with the back right hand panel. He said he was travelling at 68 – 70 km per hour. [13] Two documents were introduced into evidence: both Exhibits 1 and 2. Exhibit 1 was a statement by Mr Ali directed to his insurer RACQ Insurance Limited and dated 14 January 2014. Exhibit 2 was a letter to Swan Insurance, Mr Simpson’s insurer dated 3 September 2013. Mr Moore on behalf of Mr Simpson asserted differences as between the letter of 3 September 2013, the statement of 14 January 2014 and Mr Ali’s evidence at hearing. [14] The police report recorded two witnesses. Firstly one Terese Lealofi who stated she was travelling inbound on Sandgate Road. She recalled a motorcycle passing her on her right at speed. She was travelling at 60 km per hour. She observed: The motorcycle then merged back into the left lane and a motor vehicle to have entered Sandgate Road from a parked position. I’ve seen the motorcycle to impact with the rear driver’s side of the vehicle and the bike rider to fall. [15] Secondly an unnamed witness stated: I thought the bike was speeding somewhere between 90 – 100 km per hour. I saw the car pull out, the bike was currently in the right lane at the time. The bike then changed into the left lane where it clipped the corner of the car. I saw the crash as we passed the 5th light post after the overpass. [16] Neither of these two persons were called as witnesses at hearing. [17] Both parties quantum was well supported by quotes, invoices and photographic evidence. Neither party disputed each others loss and damage quantum. -- 3 of 5 -- 4 Conclusions [18] The three photos of the damaged Toyota clearly indicate a penetrating impact directly to the offside rear quarter of the Toyota. The rear bumper is intact. The impact was not directly to the rear but to the rear side of the Toyota. It is unlikely therefore that the Toyota had completed its manoeuvre from a parked position into the left lane and was proceeding the in left lane before the collision occurred. This accords with Mr Simpson’s recollection that he had changed into the left lane just before the Gateway overpass, that he was already in the left lane prior to and at the point of impact; that he was only a matter of metres away when the Toyota pulled out into Sandgate Road. [19] This is also consistent with Mr Ali’s evidence that the Toyota was slightly over the solid white line (the line delineating the parking lane). That would indicate that the Toyota was still pulling out onto the roadway but had not straightened up so as to proceed on the roadway. [20] Mr Ali said the Suzuki was the first vehicle he observed when it was in the right lane and some 200 metres away initially. He said in his letter to Swan Insurance that after a second shoulder check he observed Mr Simpson’s vehicle to be somewhat closer but still in the right lane. Given the slight bend in the road and Mr Ali’s only observation of the Suzuki being in the in the right lane it is more than likely he did not see or perhaps was unable to observe the Suzuki’s lane change right to left lane. Mr Ali surmised in evidence that Mr Simpson’s Suzuki was in the right lane and was trying to move into the left lane. [21] Section 74 of the Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld) states that a driver entering a road from a road related area, or adjacent land, without traffic lights or a stop sign, stop line, give way sign or give way line must give way to any vehicle travelling on the road. It was incumbent upon Mr Ali to give way to approaching traffic travelling in the same direction. While Mr Simpson was obliged to keep a proper lookout there was no evidence to suggest that we he was not doing so. Quite the contrary his recollection of events was clearly stated. [22] Mr Simpson’s evidence was that he was travelling 68 to 70 km per hour in a 70 km per hour speed zone. Whilst witness Terese Lealofi recorded statement was to the effect that Mr Simpson passed her on her right hand side at speed it is the case that she was travelling at 60 km per hour. There was nothing in her statement that Mr Simpson was travelling over the 70 km per hour speed limit. She stated she observed the motorcycle to merge back into the left lane and a motor vehicle to have entered Sandgate Road from a parked position. There was no suggestion that having merged back into the left lane that Mr Simpson was exceeding the speed limit. [23] An unnamed witness thought the bike was speeding somewhere between 90 – 100 km per hour. That unnamed witness stated the Suzuki bike -- 4 of 5 -- 5 changed into the left lane where it clipped the corner of the car. The impact was obviously more than a clip. There was no specific indication of the speed of the Suzuki immediately prior to or at the time of impact. The witness statements are both short lack detail and are open to interpretation. To that extent they are of relatively little assistance. [24] The Tribunal concludes that Mr Ali’s vehicle pulled out from its parked position when Mr Simpson’s Suzuki was more than likely only a few metres away such that it was impossible for Mr Simpson to avoid impact. Whilst there was some evidence about speed it was insufficient to conclude that Mr Simpson was travelling in excess of the speed limit. [25] Mr Simpson’s quantum was admitted at $11,428.99. Order 1. The applicant pay to the respondent the sum of $11,428.99. -- 5 of 5 --