Davies v Fay [1994] QSC 55 [1995] 1 Qd R 509

"• 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 Bu:-eau.) ~ ) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MACKENZIE J No 782 of 1990 JOHN MERVYN DAVIES and GEORGE ALEXANDER FAY BRISBANE , ~ .. DATE 25/03/94 ',j JUDGMENT 1 REVI3:D COPiES iSSUED Slat.:. hJPCi~:ing Bureau Date f 1 ({- 1 Plaintiff Defendant .Jth Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 8 -- 250394 SS (Mackenzie J) HIS HONOUR: The order for costs is that the defendant is ordered to pay the plaintiff's costs of the action, including any reserved costs, to be taxed, such costs on the issue of liability to be taxed on a solicitor and client basis after 25 February 1994. I publish my reasons. JUDGMENT 2 10 (l i~ 20 30 c 50 60 -- 2 of 8 -- \) IN THE SUPREME COURT OF QUEENSLAND Brisbane Before Mr Justice Mackenzie [Re: Davies v. Fay] BETWEEN: JOHN MERVYN DAVIES AND: GEORGE ALEXANDER FAY No. 782 of 1990 Plaintiff Defendant REASONS FOR JUDGMENT -MACKENZIE J. Judgment delivered 17/03/1994 Counsel: Solicitors: Hearing Dates: J Kimmins for plaintiff C Newton for defendant Jan McCaughan for plaintiff Bradleys for defendant 14-15 March 1994 -- 3 of 8 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane Before Mr Justice Mackenzie [Re: Davies v. Fay] BETWEEN: JOHN MERVYN DAVIES AND: GEORGE ALEXANDER FAY No. 782 of 1990 Plaintiff Defendant REASONS FOR JUDGMENT - MACKENZIE J. () Judgment delivered 17/03/1994 In this matter liability only is in issue, quantum having ; ) been agreed at $620,000. The plaintiff was on the evening of 1 March, 1988 riding his bicycle in a generally northerly direction along the Gold Coast Highway near the turn off to Paradise Waters. He was returning to his house at Hollywell after attending work and, after work, coaching a surf boat crew. The precise time of the accident is not established on the evidence but it is generally agreed that it was about dusk. The lights of most vehicles were on including lighting on the plaintiff's bicycle. The defe~dant gave evidence that he saw the -- 4 of 8 -- 2 plaintiff when he was some distance ahead (which on the evidence may have been up to 150 metres). The defendant was intending to leave the Gold Coast Highway at the exit to Paradise Waters which diverges at a gentle angle in the area of the collision. It can be inferred from his evidence and that of his wife that he was familiar with the locality where the accident happened. The plaintiff has no recollection of the incident. The defendant's version is that he had signalled his intention to move into the exit lanes. He was aware of the bicycle slightly forward of him but, according to him, following the curve of the () gutter as if heading towards Paradise Waters. The defendant says that suddenly the plaintiff veered in front of his vehicle and, () despite swerving to the left, the defendant's vehicle hit the rear of the bicycle and the plaintiff fell to the roadway. The defendant's wife, who was driving another vehicle immediately behind the defendant's, did not describe a sudden swerve in those words. She said that she had formed the opinion that the bicycle rider was turning off to Paradise Waters. In evidence in chief she said "the next thing I saw that he was in front of George's car " . . . . In cross-examination, she said "the bike rider was in () the gutter and then he was in front of George' s car." The general tenor of her evidence was that she did not have the bicycle under observation at all times. The defendant, his wife and a nurse who had stopped to assist gave evidence that the incident happened in various locations substantially further north than that suggested by some of the other evidence. A police officer, Constable Tuton gave evidence that he found glass on the road at a point 77 metres -- 5 of 8 -- 3 from one light pole and 10 metres from another. He marked on an aerial photograph the area in which he said the accident happened and identified in evidence the two poles used as reference points. One of the plaintiff's sons had been travelling independently in another motor vehicle and, having recognised his father's bicycle on the road, came back to the scene. He also marked a location on a separate aerial photograph representing the place where his father was lying. He identified it by reference to the number of road markings beyond a hatched area on the road. That position corresponds closely to the position where the police officer said he found the glass which he attributed to the initial impact. Evidence establishes that the vehicle struck the bicycle in the vicinity of the car's right hand headlight. It is not really disputed that the bicycle- was struck from behind. The measurements taken by the police officer, when one refers to the aerial photographs (even making allowance for any distortion in them) are far more consistent with the evidence of the police officer and the plaintiff's son as to the point of collision. ( 1 I should mention that the admissibility of evidence from the\.., J. plaintiff that it was his habit to ride the bicycle a short distance to the left of the white line which marked the edge of the left hand carriageway was objected to. I do not propose to place weight on this evidence. The issues before me are how and where the accident happened and whether the defendant and the plaintiff were guilty of negligence. Having regard to my observations of the witnesses and the other evidence I do not accept that the accident happened in the -- 6 of 8 -- 4 place where the defendant says it happened. I am satisfied that it happened significantly south of where he said and quite close to the commencement of the exit lanes to Paradise Waters. I prefer the evidence from the police officer and Mr Davies' son in that respect. I do not accept that the plaintiff executed the kind of manoeuvre described by the defendant. I do not accept that he followed the gutter for a substantial distance down the run-off or that he swerved suddenly in front of the defendant's vehicle. I am satisfied that the collision occurred a short distance from where the plaintiff had emerged from the hatched area on the roadway. Once those findings are made, the situation is that the defendant in a motor vehicle, having observed the cyclist ahead of him and remaining aware of his presence, struck him from behind. The proper inference to be drawn from that is that he must have been involved in some misjudgment and that that misjudgment was due to a lack of care on his part. Mr Kimmins referred to Rains v. Frost Enterprises Pty Limited (1975) Qd.R. 287 and the cases cited therein as stating the principle to be applied in this case. The facts in I) ( ) (J Rains v. Frost Enterprises Pty Limited are not identical. It was () not concerned with an exit-lane situation but there can be little doubt that in a situation where a vehicle is moving relatively quickly compared with a bicycle and common experience would suggest that a bicycle travelling on the roadway just past the commencement of the exit lanes may well proceed ahead rather than deviate along the exit lanes, the driver of the vehicle wishing to exit has a high degree of vigilance to exercise. On the basis of the findings of fact, I am satisfied that, in colliding from -- 7 of 8 -- 5 the rear with the plaintiff's bicycle, the defendant failed to exercise the standard of care required of him. I find that he was negligent towards the plaintiff. So far as contributory negligence is concerned it was not submitted that the plaintiff was not entitled to be on the carriageway or to proceed north just to the left of the lane for northbound traffic. The defendant's case was conducted on the basis that, by following the gutter, the plaintiff had led the defendant to assumi, without negligence, that he was proceeding down the Paradise Waters exit lanes, and that his sudden deviation into the vehicle's path was the cause of the accident. It was not suggested precisely what the plaintiff should have done, in the event that I found that the defendant was negligent, to avoid a finding of contributory negligence. None of the particulars of contributory negligence were developed in this context. In all of the circumstances, I find no contributory negligence.· Judgment is entered for the plaintiff for $620,000 ) with costs to be taxed. \ ' ) " / -- 8 of 8 --