Bunker v McFadyen & Bunker [1997] QSC 244

, \ , i State 5 c qi/244- Reporting Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION. " SHEPHERDS ON J No 1087 of 1994 CHRISTINE CHEREE BUNKER and ANNE MAJELLA McFADYEN and MICHAEL JOHN BUNKER BRISBANE \ .. DATE 26/11/97 JUDGMENT REViSED COPIES ISSUE: State fieportino Bureau Cate 3. / t~/ Plaintiff First Defendant Second Defendant ·\lh F1C1or, The Law Courts, George Stn:el, Brishane, Q. 40()() Telephone: (07) 3247 4J(j() Fax: (07) 3247 5532 -- 1 of 30 -- 261197 sdh (Shepherdson J) HIS HONOUR: The trial of this action is limited to the issue of liability for the motor collision in which the plaintiff was injured. At about 12.15 a.m. on 16 April 1994 on Main Street, Kangaroo Point a Harley Davidson motor bike registration number JT365 10 then ridden by the second defendant and a Ford Falcon utility registration number 198-~JQ then driven by the first defendant collided. The plaintiff was a pillion passenger on the motor bike and was injured in the collision. The claim for damages arising out of the collision has been agreed with her by the first and second defendants and their insurers and paid. She was not represented at the trial. She (':' has given a release, discharge and indemnity to the compulsory insurers of both vehicles. She has acknowledged that the . settlement moneys paid her have been paid without admission of liability' on,,;the part of (inter- alia) , either the first, and, '. second defendants. Since the plaintiff has been paid out without admission of liability, the liability issue has been litigated before me to determine which one of the defendants was liable or whether both were liable for the plaintiff's injuries and, if both, then in what proportions responsibility is to be borne. I heard evidence from the following persons: 1. Anne Majella McFadyen, the first defendant and driver of the Ford utility. JUDGMENT 2 30 40 so GO -- 2 of 30 -- / ( 261197 sdh (Shepherdson J) 2. Michael John Bunker, the rider of the Harley Davidson involved in the collision. 3. Susan Le Feuvre, the driver of a motor car stationary in River Terrace at traffic lights awaiting for those lights to change to allow her to turn into Main Street and then drive north towards the Story Bridge. 4. Richard John Kennedy, a passenger in Mrs Le Feuvre's car. 5. Craig Fontana, the police officer who attended the accident scene and recorded in his notebook conversations he had had with various persons including the second defendant 'and Jeffrey Lloyd Nelson. ;6" ,. : Jeffrey Lloyd Nelson, the rider 'of another motor bike who had been following behind the second defendant's motor bike at the time of the collision. 7. Russell Bolton from Brisbane City Council who testified to the accuracy of Exhibits 6, 7 and 10. Exhibit 6 is part of a larger Brisbane City Council plan showing the traffic signal installation at Main Street and River Terrace Kangaroo Point as at the date of the accident. Exhibit 10 is the larger plan. Exhibit 7 sets out the timing sequence of traffic signals at Main Street and River Terrace on 16 April 1994 - it is limited to vehicles only and demands for all approaches. Pedestrian JUDGMENT 3 10 20 30 40 so GO -- 3 of 30 -- 261197 sdh (Shepherdson J) demands have been excluded from exhibit 7. I mention now that I find that, at the time of the collision on 16 April 1994, no fault in the operation of the above traffic signals had been reported to the Brisbane City Council - I therefore find that the traffic signals installation at Main Street and River Terrace, Kangaroo Point, were, at the time of the collision, operat1ng in accordance with the timing sequences as shown in Exhibit 7. The first defendant was rather nervous when giving evidence. Nevertheless, I thought her an honest and credible witness. Earlier on the night of 15 April 1994 she had been at Moorooka babysitting her sister's children. I find she left her sister's home at about 11.30 p.m. to drive to her own home at New Farm. I find she travelled along Ipswich Road intending to drive across the Story Bridge. I find she was alone in the .. Fordutility and, en route to the Story Bridge, drove along ·;··MainStreet. Main Street I find ·is;and· was a bitumen road, sealed kerb to kerb, which runs in a north-south direction and I find the Ford utility travelled in a northerly direction along Main Street. Main Street was and is a major road traffic artery providing access to and egress from the Story Bridge - one of a limited number of bridges spanning the Brisbane River. I am satisfied that, as the first defendant drove along Main Street, she had, as she said, "a good run of the lights.", and by that she meant that the traffic lights, which she drove past in Main Street, showed green in her direction of travel. JUDGMENT 4 10 20 C 3Q c) 40 so GO -- 4 of 30 -- ( 261197 sdh (Shepherdson J) She mentioned particularly traffic lights near the Pineapple Hotel and another set of traffic lights north of that hotel but before she arrived at the intersection of Main Street and River Terrace - these lights she said were green and I accept her evidence to this effect. I am satisfied also that, as ·it approached the intersection of Main Street and River Terrace, the Ford utility travelled at a speed of about 60 kph. I find that the maximum speed for that area was 60 kph. I find that the headlights of the Ford were alight. I find also that weather conditions at the time were fine and visibility was clear. I turn now to the characteristics of what were, in fact, two intersections of Main Street and River Terrace and the traffic signals controlling traffic entering them. ",1- .. I. :I, find that on the southern side of, the southernmost intersection of Main Street and River Terrace, Main Street was divided by a concrete median strip, the location of which appears clearly in the plans Exhibits 6 and 10 and the photographs Exhibits 2, 3 and 4. I find that to the west of that median strip Main Street is marked with three separate traffic lanes, which lanes appear clearly in the above five exhibits. I find that these lanes were for use of northbound traffic. Counsel for the first and second defendants have .agreed the total width of these three lanes was roughly 10.2 metres and JUDGMENT 5 10 20 30 40 so GO -- 5 of 30 -- 261197 sdh (Shepherdson J) that each lane was roughly 3.4 metres wide. I find that on the southern side of the southernmost of the two intersections of Main Street and River Terrace (which intersection I shall hereafter call "the collision intersection") and to the east of the median strip Main Street was marked with two separate lanes used by traffic travelling in a southerly direction. As I have already mentioned, movement of traffic on the two intersections of Main Street and River Terrace was controlled by traffic lights. Exhibits 2 and 3 are photographs showing four sets of traffic lights which I find were operating at the time of the collision and which I find faced traffic travelling north along Main Street and approaching the collision intersection. Exhibit 4 is another photograph which shows three of those .. four sets at closer range. I find that two of those sets . of traffic lights were ·at the southern side of the collision,' . ,intersection - one of these was on a pole fixed in the median 10 20 C\ (1 30 strip and the other on a pole adj acent to thekerbing on the () western side of the three lanes and on the south-west corner of the collision intersection. As to the remaining two sets of traffic lights facing northbound traffic in Main Street approaching the collision intersection, I find one of these sets was on a pole fixed close to the southern end of a concrete median strip which divided Main Street on the northern side of the collision intersection. This median strip appeared clearly marked in the plans Exhibits 6 and 10. I am satisfied that that median JUDGMENT 6 40 sn GO -- 6 of 30 -- ( 2,61197 sdh (Shepherdson J) strip ended on or close to the northern side of the collision intersection and that almost at the southern end of this median strip the traffic lights to which I have referred were sited. I am satisfied also that for some considerable distance to the north of the collision intersection this median strip divided Main Street in such a way that Main Street to the east of the strip was for use by southbound traffic and Main Street to the west of the strip was for use by northbound traffic. The fourth set of traffic lights which appears in each of Exhibits 2, 3 and 4 was on a pole fixed in a triangular shaped ( area in which quite a large tree was growing - this triangular shaped area abutted the western boundary of Main Street between the collision intersection and the second intersection between Main Street and River Terrace, which second intersection was to-the north of the collision intersection. (, _ This triangular shaped area was bounded on its north-west by River Terrace, on its eastern side by Main Street and on its ( \ south-western side by River Terrace. I shall explain these two references to River Terrace bounding two sides of the triangular shaped area. Immediately to the north of this triangular shaped area was the second intersection of River Terrace and Main Street to which I have earlier referred and which was not the intersection on which the instant collision occurred. I shall call this intersection the "northern intersection". JUDGMENT 7 10 20 30 40 so (iO -- 7 of 30 -- 261197 sdh (Shepherdson J) To explain in words the difference between the two intersections of Main Street and River Terrace it is necessary to understand that River Terrace runs roughly in a north-east - south-west direction and at its northernmost end intersects with Main Street at two separate places. I find that on 16 April 1994, as one travelled along River Terrace in a north-easterly direction towards Main Street, River Terrace had a marked centreline and carried two way traffic until one reached a point probably 50 to 60 metres before reaching the northern intersec.tion and, at that point, the lane to the left of the centreline divided into two parts - one of these parts curved to the right for a short distance and the other continued straight ahead and joined Main Street at the northern intersection. I find the "curve to the right part" intersected with Main Street and also met a set of traffic -lights-controlling traffic entering from this part of River Terrace onto the collision intersection, that is, the intersection of Main Street and River Terrace on which the collision occurred. I am satisfied that the traffic lights which I have just mentioned were solely for traffic on River Terrace turning right into Main Street and travelling southbound. I shall call these traffic lights "River Terrace right turn to Main Street II lights ("RTRTMS"). - I find that the second division of River Terrace travelling in a north-easterly direction towards Main Street proceeded in a straight line and joined Main Street at the northern JUDGMENT 8 10 20 (-.1 CO) 30 () <10 50 60 -- 8 of 30 -- 261197 sdh (Shepherdson J) intersection. I find also that, shortly before the second division of River Terrace reached the northern intersection, there was a set of traffic lights which controlled movement of traffic from River Terrace into Main Street travelling in a general northerly direction. These latter traffic lights controlled entry into the northern intersection which, as I 10 have already mentioned, is to the north of the collision intersection. I shall call these traffic lights "the River Terrace northbound lights" ("RTNBL"). I add that at the northern intersection River Terrace intersects with Main Street from roughly a south - south-westerly direction and the 20 angle of intersection on the southern side is about 30 degrees. Traffic entering the northern intersection can only ( turn left into Main Street. Exhibits 6 and 10 show exactly where the River Terrace northbound lights and the River Terrace turn right "into Main Street lights are sited... ( I now mention and find that on 16 April 1994 traffic travelling both north and south along Main Street could gain access to River Terrace but only after first entering the· collision intersection. I find that abutting the collision intersection on the north was the entry point for traffic travelling south in Main Street and turning right into River Terrace. This entry point is important in the events which happened at" about 12.15 a.m. on 16 April 1994. JUDGMENT 9 30 110 50 (iO -- 9 of 30 -- 261197 sdh (Shepherdson J) I also find that abutting the collision intersection on the west is the exit point from River Terrace for traffic turning right out of River Terrace into Main Street and then travelling south, which is controlled by "River Terrace turn right to Main Street" lights or RTRTMS. As I have said, the concrete median strip to the north of the collision intersection divided Main Street in such a way that southbound traffic travelled to the east of the strip and northbound traffic travelled to the west of the strip. I find that for southbound traffic in Main Street travelling towards the collision intersection the road surface was marked 10 and divided into three lanes. I find that one of these lanes, (~1 that is, the lane on the west and closest to the median strip, was marked with turn right arrows and was intended for use by traffic intending to execute a right-hand turn into River· Terrace. ·I·find that the two lanes to the left· of this "turn right lane" were for traffic travelling southbound in' Main . Street. I find also that the entry of traffic on to the collision intersection travelling south along Main Street was controlled by traffic lights. The siting of· two sets of these lights appears clearly in the photograph, Exhibit 5, which shows a view from the north side of the collision intersection looking south along Main Street. I shall call these lights "Main Street southbound right turn to River Terrace" lights ("MSSRTRT") . JUDGMENT 10 30 ()O -- 10 of 30 -- 261197 sdh (Shepherdson J) Each set of these lights is ona pole and each set faces north. One pole is at or near the end of the median strip which ends on the northern side of the collision intersection. This is the same pole already mentioned by me and which carried one set of traffic lights controlling traffic travelling northbound along Main Street. The second 10 ( pole is near the end of the median strip which is immediately to the south of the collision intersection. I have already mentioned this pole which also carries another set of traffic lights controlling traffic travelling northbound along Main Street. I find that, for southbound traffic intending to turn right ( into River Terrace, the MSSRTRT to which I have referred showed only turning right arrows, which arrows may be red, green' or ,yellow depending on the' stage of ,the timing sequence in Exhibit 7, but that at two stages of ,that timing sequence, instead of showing an arrow, showed nothing; by that I mean the lantern in the traffic lights was unlit during these two (, stages. The first defendant's case, shortly put, is that she drove the Ford utility in a northerly direction on to the collision intersection at a time when the traffic lights controlling her entry on to that intersection showed green. The second defendant's case, shortly put, is that he entered the collision intersection to execute his right-hand turn into River Terrace at the time when the MSSRTRT showed a right turn green arrow. It follows from his case that, if his claim be correct, then the first defendant must have driven on to the JUDGMENT 11 20 30 40 50 60 -- 11 of 30 -- 261197 sdh (Shepherdson J) collision intersection at a time when the traffic lights controlling her entry showed red. This conclusion results from a study of the timing sequences in Exhibit 7. This timing sequence shows that, during the same period of time when the right turn green arrow MSSRTRT 10 was illuminated, the Main Street northbound lights on the collision intersection showed "red. I should add now that this timing sequence also showed the following light displays all co-existed at the same period of time:- (a) The right turn green arrow MSSRTRT was illuminated; (b) The River Terrace northbound lights showed left turn green arrow; (c) The Main Street southbound lights showed green; (d) The River Terrace turn right to Main Street lights (RTRTMS) showed red; (e) The Main Street northbound lights showed red; (f) The period of time during which the displays co-existed was from 6 to 60 seconds, the length of the period being governed by the traffic flow. JUDGMENT 12 30 40 ( 50 GO -- 12 of 30 -- 461197 sdh (Shepherdson J) I mention that the whole of the timing sequence appearing in Exhibit 7 takes from 42 seconds to 150 seconds to complete and that, of this period, the right turn green arrow MSSRTRT is illuminated from 6 to 60 seconds. I find that of the above displays (b) is significant in assisting me to decide which of the defendants' claims I accept. I say that because of the evidence of Mrs Le Feuvre and ( Mr Kennedy who, as I have mentioned, were in a motor car in River Terrace with Mrs Le Feuvre as driver, intending to turn left into and drive on to the northern intersection when ( permitted by the River Terrace northbound traffic lights to do so. I was impressed by each of Mrs Le Feuvre and Mr Kennedy. Neither has any interest in the outcome· of this case. Each is a mature person. Each gave evidence in.a candid fashion and I ( thought each an honest credible witness. I find Mrs Le Feuvre was the driver of a car which travelled in a north-easterly direction along River Terrace towards the northern intersection. I find that Richard John Kennedy was a passenger in the car. I find that Mrs Le Feuvre intended to drive the car across the Story Bridge. I find that, when the car neared the River Terrace northbound lights (RTNBL) , she stopped the car because those lights showed red. I find that it is more probable than not that, as she approached these lights, the lights changed to red. I find that the car was JUDGMENT 13 10 20 30 10 50 60 -- 13 of 30 -- 261197 sdh (Shepherdson J) stationary at those lights for a reasonable time and was stationary because the RTNBL continued to display red. I find that during the time when her car was stationary at the RTNBL the collision between the Ford utility and the motor bike occurred. I find that this collision occurred at a time when the RTNBL showed red against Mrs i.e Feuvre's car .• I should add that Mrs Le Feuvre, when asked by the second defendant's counsel to give her best estimate of the time she was stopped at the RTNBL replied:- "I wouldn't like to put it in seconds or minutes. You know what it is like when you are just sitting there. It seems like a considerable time for the lights." When Kennedy was asked how long the car had been stopped until he heard the noise of the collision he replied, "I would say half a minute." I do not interpret that answer as meaning '.' literally about 30 seconds - rather do I interpret it as meaning a reasonable length of time. The timing sequence, r6 30 Exhibit 7, shows that from the instant when the RTNBL display , ., is red, that red display lasted continuously for between 20 and 78 seconds before the left turn green arrow displayed. I add that I accept Mrs Le Feuvre's evidence that, straight after the collision happened, Kennedy got out of the car and ran to 'the accident scene, he being a qualified nurse. I accept also that, after Kennedy alighted, Mrs Le Feuvre waited for a further period of time for the RTNBL to turn green, that she then drove forward and up to the kerb before she too alighted and went to the accident scene. JUDGMENT 14 40 c) GO -- 14 of 30 -- ( ~61197 sdh (Shepherdson J) I also accept evidence of Kennedy that, after he heard the loud noise of the collision between the utility and the motor bike, he noticed that the light for northbound traffic, that is, for the utility, was green. He did not recall wh~ther he was in the car or out of it when he made this observation. Nevertheless, I am satisfied he was in a position to make that observation. It is true that on 7 February 1995 Kennedy signed a statement just over one page in length (Exhibit 8) and in that statement did not mention having noticed the green light. I am satisfied that Exhibit 8 came into existence after Kennedy was interviewed (probably by a loss assessor for the second defendant) either face-to~face or by phone and that, in the interview, Kennedy told his interviewer more ( detail than is contained in Exhibit 8. i \ I find Kennedy's evidence as to his seeing the green light is not conclusive or essential to my ultimate finding· that· the traffic lights controlling entry of northbound traffic .along Main Street on to the collision intersection were ·green:at the time the Ford utility entered that intersection. As I have said, Kennedy was impressive and an honest and credible witness. He had no interest in the outcome of this case. Because I accept the evidence of Mrs Le Feuvre and Mr Kennedy and because I have found that the car in which they were travelling was stopped by the red light, RTNBL, for the time I have found, and because I have found that the collision occurred when RTNBL showed red, the right turn green arrow MSSRTRT could not have been illuminated at the time of or immediately before the collision as claimed by the second JUDGMENT 15 10 20 30 40 50 GO -- 15 of 30 -- 261197 sdh (Shepherdson J) defendant and Mr Nelson. The timing sequence in Exhibit 7, to which I have referred, shows this to be so. Furthermore, according to Exhibit 7, if MSSRTRT showed a right turn green arrow, then at the same time RTNBL must have shown a left turn green arrow and, importantly, have been displaying that left turn green arrow for between 12 and 24 seconds before the right turn green arrow appeared on MSSRTRT. JUDGMENT 16 10 (1 30 40 ( :iO 60 -- 16 of 30 -- 261197 cad (Shepherdson J) On the evidence of Mrs Le Feuvre and Mr Kennedy, which I accept, that did not occur. RTNBL displayed only red. I turn now to the evidence of the second defendant and Jeffrey Lloyd Nelson. I thought the second defendant an unsatisfactory witness and I could not rely on his evidence concerning the events leading up to the collision. In his oral evidence before me he told me that he and his wife, and Nelson and his female companion had travelled south along Main Street and reached the northern edge of the collision ( intersection. He said he stopped his motorbike in the right hand of the three southbound lanes and waited to do a ( '- right-hand turn into River Terrace. He believed Nelson was behind him on his (Nelson's) motorcycle. He said that the traffic lights at which he stopped showed a red light which he described as a red circle and a red arrow, and that he was stationary there for "approximately no more than 10 seconds." He said, "The red arrow and the red light" changed to green - "went from double red to green." and so he put his bike into gear and proceeded "around the corner" towards River Terrace. He described seeing a motor car stationary facing northbound on the southern side of the collision intersection and in the lane next to the median strip. He said this car remained stationary and he then saw the lights of an oncoming car, which was not the car stopped in the lane next to the median strip. He described accelerating but being unable to avoid the collision. I should, at this stage, say that counsel for the first and second defendants agreed that the distance between the ends of the median strips to the south and north of the collision JUDGMENT 17 10 20 30 40 50 60 -- 17 of 30 -- 261197 cad (Shepherdson J) intersection was roughly 25 metres. The second defendant also said that as he was stationary to the north of the collision intersection he saw cars stationary to his left when the traffic signal controlling them was a red light, but I do not accept that evidence. I infer that these cars, if present, were part of traffic travelling southbound on Main Street. I accept the second defendant's evidence that the route he travelled that night was one he had followed on many occasions prior to 16 April 1994. I also accept his evidence that it was not uncommon for him to be stationary at the MSSRTRT and for traffic to be stationary in the left lanes facing southbound along Main Street. I do not accept evidence 10 20 of the second defendant that "pretty well straightaway" before (l the second defendant saw his green light a motor vehicle travelled from River Terrace across the collision intersection and turned right into Main Street. I do not accept the second defendant's evidence that there was a motor car stationary on the southern side of the collision intersection and in the 30 lane next to the median strip and on all the evidence I find () there was no such stationary car facing north and in the lane next to the median strip. I find the first defendant spoke to Constable Fontana, a policeman who went to the accident scene. I find that conversation occurred at the Princess Alexandra Hospital later 40 on the morning of 16 April. Fontana recorded the conversation 50 in his police notebook. I find that that conversation included the following: Fontana asked, "Do you recall what kind of light was showing when you took the corner?" The JUDGMENT 18 60 l) -- 18 of 30 -- 261197 cad (Shepherdson J) second defendant replied, "Not really but I was pretty sure it was a green arrow." Fontana asked, "Are you sure it was a green arrow?" The second defendant replied, "Pretty sure. I just know it was a green light." I find that in this conversation, which was reasonably contemporaneous, with the police the second defendant displayed uncertainty as to whether or not a green arrow turn right light was illuminated. His statement to Constable Fontana that, "I just know it was a green light." was, I thought, consistent with his evidence before me in which he spoke of the light ( going from double red to green with no mention of a green arrow. ( , Quite apart from the evidence of Mrs Le Feuvre and ( Mr Kennedy, to which I have already referred, and its importance in determining whether the second defendant did have an illuminated right turn green arrow immediately before the collision I reject the second defendant's evidence that the lights against him at MSSRTRT showed double red as he claimed when he first stopped his motorbike shortly before the collision. I accept that when he first stopped his motorbike 10 20 30 the MSSRTRT showed a right turn red arrow and I find it 40 probably showed an illuminated green circle. I find that it is more probable than not that the collision occurred during a period of time when the MSSRTRT showed nothing and the Main Street northbound and Main Street southbound traffic lights showed green. As appears from Exhibit 7 the MSSRTRT showed a right turn red arrow for 6 seconds for the same period of time and at the JUDGMENT 19 50 60 -- 19 of 30 -- 261197 cad (Shepherdson J) same time as the following light signals: (a) Main Street northbound - green (b) Main Street southbound - green ( c) RTRTMS - red "hi.; River .:.j. (d) RTNBL Terrace northbound - red '. "" " ~i1Exhibit 7 shows this sequence is followed inunediately with MSSRTRT showing nothing, i.e., the lantern is not illuminated for a period from 6 to 64 seconds and that for the same period of time the following signals appear: (a) Main Street northbound - green (b) Main Street southbound - green (c) RTRTMS - red (d) River Terrace northbound.~·'.1?RTNBL· ::'.·,:r·ed. I find it more likely than not that the right turn red arrow in MSSRTRT which the second defendant claims he saw was the above right turn arrow which displayed for six seconds before the MSSRTRT showed nothing. Such a view is consistent with the evidence of Mrs Le Feuvre and Mr Kennedy that the collision occurred when the River Terrace northbound light showed red. It is also consistent with Main Street southbound traffic having a green light and Main Street northbound traffic having a green light. In short, I disbelieve the 10 20 30 40 second defendant's evidence as to the display of lights at 50 MSSRTRT shortly before the collision occurred and the circumstances in which the collision occurred. JUDGMENT 20 60 Q I () -- 20 of 30 -- ( ( { '\ \ 2'61197 cad (Shepherdson J) As for Jeffrey Nelson, I thought him a confused witness whose recall of events is unreliable and who is and was mistaken as to a number of matters. I find that at the accident scene he spoke to Constable Fontana and told him, "We were stopped at the lights, they turned green, we went through. The next thing this other car comes along and just collects them." Fontana asked, "When you say the lights went green what sort of green light was it?" Nelson replied, "Oh, I don't know, I just know the lights went green ... " He at no time mentioned to the policeman that he saw a red turn right arrow. He could not tell the policeman the sort of green light yet he told me that he saw a green arrow and proceeded to move forward. He also told me that he saw a green circle and a green right turn arrow facing him. Mr Nelson's recall as to how many turn right lanes there were on the northern side of the collision intersection was faulty. All in all I thought Mr Nelson lacked credibility and I could not safety rely on his evidence as to the colours of the traffic lights facing him as he waited to enter the collision intersection and as he entered that intersection. I turn now to Exhibit 9 which is the photocopy of a sketch plan of the accident scene prepared by Constable Fontana. I find that the markings on this sketch do not accurately record the path of travel of the Ford utility immediately before the collision. I find on the evidence that the utility approached and entered into the collision intersection travelling northbound in the lane nearest the median strip. I add here that the evidence of Mrs Le Feuvre supported the first defendant on this aspect. The path of travel shown in JUDGMENT 21 10 20 30 40 50 60 -- 21 of 30 -- 261197 cad (Shepherdson J) Exhibit 9, and it purports to show the Ford util-ity_ travelling in the lane nearest the western kerb of Main Street, is wrong. I find that in marking this path- on the sketch plan Constable Fontana- relied on what he had been told by Mr Nelson and such reliance was misplaced. I find that Constable Fontana arrived at the accident scene some 70 minutes after the collision and that he did not make the sketch, Exhibit. 9, until he made his report. I find he made this sketch at some indefinite time after 16 April 1994. No measurements were taken at the scene cif the collision and I find it more likely than not that the point of collision was on the collision intersection in the lane nearest the median strip produced forward onto the intersection. I am well satisfied that as the Ford utility approached the collision intersection it was travelling at a speed of about 60 km/h and that the traffic lights facing the first defendant showed green and continued to show green as she entered onto the intersection. I find also that as she neared the 10 20 30 intersection the first defendant saw a couple of headlights () stationary in the r~ght-hand turn lane for travel approaching the collision intersection from the north. I find the first defendant was familiar with and knew that. vehicles in that right-turn: lane intended to cross the collision intersection and enter River Terrace. I find also-that the first defendant first saw the motorbike when it.was in front of her.in the. 40 lane in which she was travelling and that at that instant the 50 utility "had-travelled into the intersection and she, herself, in the driver's seat, had moved past the traffic lights near the end of the median strip on the southern side of the JUDGMENT 22 60 C) -- 22 of 30 -- t., ( 261197 cad (Shepherdson J) .. collision intersection. - " Although the first defendant was unable to say how far the motorcycle was from the front·of the utility when she first saw it, I find it was very close and that the collision happened very quickly after she first saw the motorbike. I add that I find that the path of travel of the motorbike to the point of impact was not through a right angle turn but 'rather a veer to its right as it entered the intersection and moved at an angle of some 45 degrees towards the proposed entry into River Terrace some distance ahead and to its right. .~. I find the point of impact was probably just over halfway through the collision intersection and in the northern half of the collision intersection. I find that the second defendant entered the collision intersection ata time when the MSSRTRT showed nothing. I find that he intended to turn right across the collision intersection and enter River Terrace. I find he failed to 10 20 30 keep a proper look out and failed to observe the approach of 40 the Ford utility which, as I have found, was travelling at about 60 km/h. Once the MSSRTRT showed nothing the second defendant was entitled to cross the collision intersection but if he chose to do so his obligation to keep a proper look out was a heavy one considering the traffic entering from the 50 opposite side of the collision intersection had a green light in its favour. The second defendant as well as the first defendant owed a duty of care to the plaintiff as a pillion JUDGMENT 23 60 -- 23 of 30 -- 261197 cad (Shepherdson J) passenger on the second defendant's motorbike which entered t onto the intersection. The second defendant, apart.fr0m failing to keep a proper look out failed to yield way to the first defendant who entered the collision intersection with the green light facing her. The first defendant was "entitled in approaching the /intersection in face of the green light to expect that no traffic would attempt to cross [her] path." (Carter v. Gilmore (l975) 49ALJR 360 at 36l per Barwick CJ with whose reasons other members of the High Court agreed.) \,: I bear in mind that in determining the issue of liability in r . , this case I am considering the liability (if any) of each defendant towards the plaintiff. In light·· of findings I have already made it will be apparent that in my view the second defendant was causally liable for the plaintiff's injuries, loss and damage. As to the first defendant, the case of Carter v. Gilmore does 10 20 (, '- 30 40 provide some guidance. That was the case where the appellant (,,__ plaintiff was driving a mini minor motor car with headlights on at night-time in an easterly direction along a certain highway. She sought to turn right across the highway to enter a road intersecting with that highway when a collision took 50 place between her. car and a Holden motor car also with headlights on driven at about 40 miles per hour by the respondant along the highway in a westerly direction. There J1JDGMENT 24 60 -- 24 of 30 -- ( \ 261197 cad (Shepherdson J) were traffic lights governing the movement of traffic in the area of the intersection. It was found that the respondent, who had relied on a green light signal did not keep a proper look out and did not see the appellant's vehicle, being unaware what his car had struck when the collision occurred. 10 The High Court affirmed findings that each party was negligent and did not interfere with the West Australian Full Court's determination that the appellant was 75 per cent to· blame for the collision and her injuries. Mr Whiteford, counsel for the first defendant, has submitted 20 that I should find the first defendant was not negligent. He has referred me to Henderson v. Hassel & anor (1986) (3MVR359), a decision of Wood J of the Supreme Court of New South Wales Common Law Division and Thompson v. Mumford (1990) 11MVR441, a decision of Mackenzie J of this court. Each concerns collisi~s at intersections controlled by traffic lights. Each case shows that a defendant who enters an intersection with a green light in his or her favour may not always be blameless. Mackenzie J has taken the view that a motorist who has a traffic light in his favour is prima facie entitled to act in conformity with 40 that light. I do not dissent from that view. It is trite to say that each case depends on its own facts. In the instant case while the first defendant enjoyed the prima facie entitlement to act in conformity with the green 50 light, nevertheless there was evidence which has satisfied me that she was negligent towards the plaintiff. In my view, in the circumstances of this collision, she drove too fast by keeping the utility at or near the maximum authorised speed in hours of darkness. Her speed was important because as she 60 JUDGMENT 25 -- 25 of 30 -- 261197 cad (Shepherdson J) approached the collision intersection she had seen a couple of headlights in the turn-right lane ahead of her and she knew, as I have found, that traffic from that lane turned across the intersection to enter River Terrace. I find she failed to keep these couple of headlights under observation - had she done so she should have seen the motorbike moving onto the collision intersection before she did actually see it and had she reduced the speed the collision may have been avoided or its severity reduced. In Fardon v. Harcourt-Rivington (1932) 146 LT 391 Lord Dunedin said (at page 392) : .. what is negligence depends on the facts with which you have to deal. If the possibility of the danger emerging is reasonably apparent then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man then there is no negligence in not having taken extraordinary precautions." 10 o 30 o 40 (i In the instant case it could not be said that the emergence onto the collision intersection of the motorbike was a mere possibility which would never have occurred to the mind of a reasonable man. In my view the first defendant, knowing that traffic turned across the intersection from the lane where she 50 saw the couple of headlights should have taken precautions to guard against what, in my view, was a real possibility that. the vehicle or vehicles whose headlights she had seen might JUDGMENT 26 60 -- 26 of 30 -- ( ( ( 2'6~~97 cad (Shepherdson J) well turn across the intersection. She could so guard in two ways - by keeping an eye on those headlights and by slowing the speed of the utility and thereby keeping the car or the utility Ilin hand ll in case someone did attempt to cross her path. (See Carter v. Gilmore page 361 letter G right-hand column) . In the result I find that the first defendant was negligent towards the plaintiff in that she failed to keep a proper look out and . drove 'at. an'; excessive speed. I find, further, that..: ......;.~.. . .;'). , the first defendant iscausan.~/iiable for the plaintiff's injuries. In my view this collision would not have occurred without the negligence of each defendant. It remains to apportion liability between these two negligent persons. In my view the second defendant's negligence was far greater than that of the first defendant. I apportion and declare the second defendant's responsibility to be 85 per cent and the first defendant's responsibility to be 15 per cent. 10 -",,' ,', 20 " 30 HIS HONOUR: I conclude that the quantum of any costs to be 40 paid or, in fact, paid to the plaintiff in this action shall be borne by the first and second defendants in the proportions which I have already declared. JUDGMENT 27 50 60 -- 27 of 30 -- 261197 sdh (Shepherdson J) HIS HONOUR: I am now confronted"with an application by counsel for the first defendant for an order that the second defendant do pay to the first defendant 85 per cent of its costs of and incidental to the hearing which began on Monday" that is, two days ago. Mr Tutt, for the second defendant, has submitted that the proper order to be made is no order as to 10 costs. I think the matter must be looked at firstly from the point of view of it being an action brought by the plaintiff against each of the defendants in which she alleged that her injuries, 20 C=) loss and damage were caused by the negligence of each defendant. Had the plaintiff's action gone to trial and she succeeded in obtaining a finding of negligence against each defendant, then, in the normal course of events, each -defendant would-have borne his own-costs' with no order in favour of one defendant against the other. A few moments ago I found for ,the first time there had :been: contribution proceedings between the defendants but no pleadings in respect of those proceedings have been filed in 30 1 ".' 40 the Court papers. Mr Whiteford, for the first defendant, has ( j conceded that at no stage has his side told the second defendant that it was prepared to settle the matter on a particular basis as to proportion of liability. On the other hand, Mr Tutt has informed me that an offer to settle was given to the solicitors for the first defendant but, unfortunately perhaps for the second defendant, the decision I have given this morning did not enliven that offer. 28 :iO (-iO -- 28 of 30 -- / \ ( ,2.61197 sdh (Shepherdson J) Mr Whiteford has relied on Order 17 rule 14 in which I am entitled to decide all questions of costs arising as between defendants to an action and he argues that I should act under that rule and make an order as to costs as the justice of the case requires. His argument is that, having litigated the issue of liability and having been found only 15 per cent to 10 blame, the second defendant should pay 85 per cent of his client's costs. With respect, I do not accept this argument. It seems to me that the two defendants have chosen to litigate the matter of liability as between themselves, after having paid out the plaintiff in full. As the reasons for judgment which I delivered this morning show, the plaintiff accepted the payment without any admission of liability on the part of 20 either defendant and so the matter has been litigated. Had 3'0 Mr Whiteford's·client succeeded in satisfying me that the second defendant was solely to blame for the collision, then, obviously, an order for costs in his client.' s favour'-would' have been appropriate but that is not the case. I have already said there was no offer to settle from Mr Whiteford's side. In the absence of that, it seems to me that I should treat the proceedings before me as purely a dispute between the two defendants in order to find out which of them was liable to pay the plaintiff's damages and, if both were liable, then the proportions in which they were to bear that loss. I have come to the conclusion that, in the circumstances of 29 40 50 60 -- 29 of 30 -- 261197 sdh (Shepherdson J) this case, the justice of the case requires that I make no order as to costs and that is the order I pronounce. HIS HONOUR: I am going to give leave to the first defendant to appeal against the order for costs which I have just pronounced in an extempore judgment. il- JUDGMENT 30 10 20 C. 30 c/ 1\0 ( so (iO -- 30 of 30 --