Baker v North  WADC 64, heard by His Honour Judge Staude DCJ on 1 May 2017 and judgment delivered 24 May 2017.
At around 8.30 am on 11 October 2012 the plaintiff was riding his motorbike east on Donald Drive Safety Bay behind a Mitsubishi 380 sedan driven by the defendant. As the defendant approached the intersection of Ernest Street she indicated to turn right. A few moments later the plaintiff lost control of his motorcycle and was thrown from his motorbike and injured. The plaintiff claimed damages for the injuries he sustained and alleged the crash was caused by the negligent driving of the defendant. The trial was as to liability only.
The plaintiff gave evidence and called an eyewitness, a Mr Carello who was driving on the road and close to crash at the time. The defendant also gave evidence and called forensic engineer witness Mr Daniel Simms. Mr Simms gave evidence (not expert evidence) as to measurements he made at the site of the crash. A map and photographs were also tendered in evidence.
His Honour Judge Staude noted that counsel for the plaintiff did not seek acceptance of the plaintiff’s account of the crash, but relied on the evidence of Mr Carello in this regard. The plaintiff contended that the defendant gave way Mr Carello’s vehicle and in so doing veered left causing the plaintiff, who was about to overtake the defendant’s car, to take evasive action which resulted in him losing control of his motorbike.
In his statement of claim the plaintiff pleaded the defendant was negligent in the following Terms –
The Defendant was negligent in that she:
- failed to keep any or any proper lookout;
- failed to steer or control her motor vehicle to avoid travelling into the path of travel of the Plaintiff;
- failed to apply the brakes in time, or at all, to avoid travelling into the path of the Plaintiff;
- moved her vehicle to the left and into the path of the Plaintiff’s motorcycle without giving any warning or indication that she intended to do so;
- drove at a speed which was excessive in all the circumstances; and
- drove the motor vehicle without due care and attention.
The defendant denied the allegations of negligence and pleaded the crash was caused wholly or in part by the plaintiff’s negligence as follows:
The Plaintiff was negligent in that he:
- failed to keep any or any proper lookout;
- travelled too closely to the rear of the Defendant’s motor vehicle;
- failed to leave sufficient distance between his motor vehicle and the Defendant’s motor vehicle to stop;
- failed to give way to the Defendant;
- drove at a speed which was excessive in the circumstances; and
- failed to take reasonable care for his own safety.
His Honour set out in detail the evidence of the plaintiff, the defendant, Mr Carello and Mr Simms. After considering the evidence of the four witnesses his Honour turned to a consideration of the law.
“30 There was no issue as to the applicable principles that apply in cases of this kind. They were conveniently stated by the Court of Appeal of the Supreme Court of Queensland in Vines v Deegan  21 MVR 113 by Macrossan CJ :
The fundamental duty of every driver of a vehicle is to drive at a safe speed and to keep a proper lookout. In the case of a following vehicle the duty is to travel at such a speed and at such a distance behind the vehicle ahead as in the circumstances to enable the driver of that following vehicle to pull up or take other evasive action in the case of an emergency. As recently as 1988 the duty of doing so was recognised by the High Court in Braund v Henning  7 MVR 97; 79 ALR 417. While emphasising the limited value of earlier decisions in the circumstances of particular cases, their Honours accepted that:
‘The driver of a following vehicle which collides with the vehicle which is ahead of it is usually held primarily liable for the consequences of the collision.’”
His Honour then considered the decisions of Thurgar v Gollschewski  QCA 330, Twiehaus v Morrison & Anor (1947) NZLR, March v Stramare (E & MH) Pty Ltd  HCA 12; (1991) 171 CLR 506 and stated at 34 – “In the event that both parties are found to have causally contributed to the incident in question, the principle to be applied in apportioning liability in this case is that stated by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd  HCA 34; (1985) 59 ALJR 492 : The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves comparison both of culpability, i.e., of the degree of departure from the standard of care of the reasonable man (Pennington v Norris  96 CLR 10 at 16), and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953 ]AC 663 at 682; Smith v McIntyre [1958)] Tas SR 36 at 42 – 49 and Broadhurst v Millman  VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”
The Evidence of the Witnesses
As to the evidence of the witnesses His Honour stated at 39 –
“I accept entirely the evidence of the defendant, which was not given in aid of any personal interest and was clearly frank and cogent. It accorded substantially with the independent evidence of Mr Carello.”
He then went on to make two adverse findings against the defendant, the first that the defendant was not aware of the presence of the plaintiff’s motorcycle behind her until she heard the screech of the braking, ie she did not keep a proper lookout and secondly, the front of the defendant’s vehicle moved about half a metre from the centre of the road to the left but this did not have the effect of reducing the distance available to the plaintiff to overtake given the width of the road.
His Honour then referred to reg 122(3) of the Road Traffic Code 2000 which provides –
“A driver overtaking a vehicle making, or apparently about to make, a right turn or U-turn in the middle of the carriageway and giving a right change of direction signal, shall pass to the left of it and if any vehicle that may be stationary behind it, but only if it is safe to do so.”
At 52 His Honour stated –
“I am also satisfied that the plaintiff contributed to his injuries by failing to take reasonable care for his own safety. He bore a higher burden of responsibility as the following driver, as the authorities show.” And also stated – “Had he been keeping a proper lookout and travelling at an appropriate speed in the circumstances he would have been able to stop safely or go around the defendant’s vehicle, on the footpath if necessary (the kerb being trafficable, as he admitted).”
At 55 his Honour stated –
“It is clear, therefore, that the plaintiff should bear a high degree of responsibility for the consequences of his loss of control of his motorcycle.”
Liability for the crash was apportioned as 70% as a result of the actions of the plaintiff and 30% as a result of the actions of the defendant.
If you would like to discuss this decision further please contact partner Ashley Crisp on 08 9321 3755.
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