Bonnor & Bonnor v Wth Pty Ltd [1996] QSC 110

.. al '2.CZ6D3 . t,c,, q6/ I to ...Jl'fJ; State 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 CULLINANE J No 22 of 1995 GREGORY GUSTAVUS BONNOR and MIRELLA BONNOR and WTH PTY LTD CAIRNS .. DATE 12/06/96 .. JUDGMENT 1 REVISED COPIES ISSUED State Reporting Bureau Date I 7/o I I C::, 1.;- First Plaintiff Second Plaintiff Defendant r' -- 1 of 7 -- HIS HONOUR: This action arises out of a collision which occurred around about midnight on 8 June 1992, or a short time into the 9th of June 1992 on the Bruce Highway about some 17 or so kilometres to the north of Innisfail. The first plaintiff was a passenger in a Mitsubishi Magna sedan being driven by his wife, the second plaintiff, in a southerly direction along the highway. They were travelling from Cairns to their home at Kurrimine Beach. The collision which occurred involved their vehicle and a Holden Commodore sedan which was being driven by an American, one Mr Patrick Dennis Brophy, in a northerly direction along the highway. I have photographs of the highway in the area. I have photographs of both vehicles which show damage substantially to the front of each, with the major damage on the front passenger side of each vehicle. , I also have the benefit of a plan drawn by Sergeant Whitnall who investigated the incident. The photographs of the area show skid marks and debris indicating the general point of the collision. The skid marks, it seems clear, were left by ·the Holden Commodore sedan and their length appears in Exhibit 1. It would seem that the plaintiffs' vehicle did not leave any marks on the road. It was common ground and, indeed, was admitted by the defendant that the collision occurred on the plaintiffs' correct side of the road that is on the south bound lane of the highway. The skid marks would indicate that it occurred well over to the plaintiffs' side of the highway. 2 -- 2 of 7 -- Mr Brophy, who as I have indicated, is an American, was not called to give evidence before me. There was evidence of roadworks being carried out to the Bruce Highway some distance to the south of the point of collision. Some of the photographs which were tendered show some aspects of this work. The evidence was that the works ceased some distance in excess of 400 metres to the south of the point of collision. The photographs show a series of drums with orange and black signs attached to them. These have been described in evidence as chevron signs and, at the end of the row of drums, there is a barrier across the south bound side of the roadway, again, with a chevron type marking on it. To the right, as one travels north, are a series of chevron signs. There was a set of traffic lights to regulate the passage of vehicles along the detour at either end of it and Exhibit 2 E shows the back of the northern lights in accordance with the position of a driver driving to the north. I should say, if it is not already clear, that the detour involved travel over a significant distance along the south bound side of the roadway with the north bound side of the roadway closed. This was the position according to Sergea~t ' Whitnall on the evening of the collision. As one travels south towards the point of collision, one comes down a slight incline and then crosses a bridge over Canal Creek before commencing to describe a gradual curve to the left. The collision occurred shortly after the commencement 3 -- 3 of 7 -- of this curve. Someone travelling to the north would be in the process of almost completing a curve to the right at the point of collision. The first plaintiff had been leaning back in the passenger vehicle and was not watching the road. He heard his wife say something, or call something out. He looked up and saw lights in front of his vehicle and a collision occurred almost immediately. The second plaintiff says that she was driving at about 90 kilometres per hour. She was aware of the approach of a vehicle from its lights. The evidence establishes that one can detect the approach of vehicles in this area before actually seeing the vehicles at night. She says that as she came into the curve, it was obvious to her that the vehicle was on its incorrect side of the roadway and a very short distance from her. She says that she believes she put her foot on the brake and that a collision occurred at about the same time. rt seems to me clear that the driver of the Holden Commodore was guilty of negligence. r: rt was suggested that the Court ought to infer that the end;of the roadworks was inadequately indicated and that the proper inference to draw is that the driver of the Holden proceeded on the incorrect side of the roadway in the belief that the detour was still continuing. 4 -- 4 of 7 -- 120696 There are I should add, Third Party proceedings still to be determined between the defendant and the Department of Transport, which raises this very issue. It is not necessary for me to make any findings in these proceedings as to whether the end of the detour was adequately 10 indicated or not. However, what is in my view clear, is that there were indications of the end of the detour that a person driving along the highway in a northerly direction ought to have seen, namely the end of the row of drums and the point at which the north bound side of the highway was closed off and that following that he was entering into an area of the highway which had no obstructions upon it. A person exercising reasonable care in those circumstances ought to have returned to the correct side of the highway. I am satisfied the driver of the Commodore was guilty of negligence for driving on the incorrect side of the roadway at the time that he did. Some allegations of contributory negligence were made against the second plaintiff. It must be borne in mind that the second plaintiff was faced with a difficult situation, namely the presence a relatively short distance in front of her, of r, vehicle on its incorrect side of the roadway. I am not satisfied that there was any want of any failure on her part to keep a proper lookout. As I have indicated, she was entering a curve in the roadway and I accept that ·it would have only been possible once the curve had been entered to 5 JUDGMENT 20 30 40 50 60 -- 5 of 7 -- 120696 ascertain that the approaching vehicle was on its incorrect side of the roadway. There was some evidence by the first plaintiff which suggested that a period of some five seconds passed between the time he heard his wife call out and the time of the collision. This 10 of course would allow a significant distance to be traversed and steps to be taken which might have avoided the collision, such as by steering on to the incorrect side of the roadway or off the roadway to the left. Although I think care has to be taken not to overstate the options open. However I prefer, in this regard, the evidence of the second plaintiff as to what occurred and I am satisfied that she was faced with the position of a vehicle on its incorrect side of the roadway, a relatively short distance in front of her, and that her response to that situation cannot be criticised as in any way involving a departure from the standard of care which is relevant, in this case, for her own safety. I am not prepared to make a finding in the light of the facts as I accept them as being of contributory negligence against here. r: I give judgment for the first plaintiff against the defendant'· in .the sum of $100,000 with costs to be taxed. I give judgment for the second plaintiff against the defendant in the sum of $160,000 with costs to be taxed. 6 JUDGMENT 20 30 40 50 60 -- 6 of 7 -- 120696 Are there any particular matters of costs that need to be attended to? MR MELLICK: No thank you Your Honour. HIS HONOUR: Are there any reserved costs? MR MELLICK: No. Not as between the plaintiffs and the defendant. MR JENSEN: No, no Your Honour. THE COURT ADJOURNED AT 3.08 P.M. r: 7 JUDGMENT 10 20 30 40 50 60 -- 7 of 7 --