Guest v Southern [2000] NSWSC 793

New South Wales Supreme Court

CITATION : Guest v Southern [2000] NSWSC 793 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 19154/93 HEARING DATE(S) : 7-14 June, 20-22 June 2000 JUDGMENT DATE : 11 August 2000

PARTIES : David John Paul Guest (Plaintiff) David John Southern (Defendant) JUDGMENT OF : Studdert J

COUNSEL : P. McEwen SC/D. Timmins (Plaintiff) P. Hall QC/S. Kettle (Defendant) SOLICITORS : Timmins & Partners (Plaintiff) Ferguson Holz (Defendant) LEGISLATION CITED : Evidence Act Motor Accidents Act DECISION : See para 55

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

STUDDERT J

Friday 11 August 2000 19154/93 DAVID JOHN PAUL GUEST v DAVID JOHN SOUTHERN

JUDGMENT 1 HIS HONOUR: In this cause the plaintiff David Guest is claiming damages from the defendant David Southern, alleging negligence in the circumstances of an accident that happened on 31 May 1990 at Greygums Road, Mt Pleasant. The plaintiff sustained serious injuries in the accident, being tragically rendered quadriplegic, but the hearing before me has been for the decision, as a separate question, of the issue of liability only. 2 The plaintiff and the defendant were work acquaintances, and on the afternoon of 31 May 1990 the defendant called upon the plaintiff at his home at Mt Pleasant, near Penrith. They left that place together, shortly before 4.00 pm to travel towards Penrith, each riding his motorcycle. Their journey took them to Greygums Road, Mt Pleasant, which I propose to describe as running approximately north and south. Whilst the compass points I have decided to adopt are not strictly accurate, they accord with the evidence of at least one of the witnesses, Mr Schuberg (T201-202), and I adopt those compass points for the sake of convenience. 3 The plaintiff and the defendant rode together to the point where they entered Greygums Road, approximately 900 metres to the north of a crest, which is a focal point in this case. Both cyclists proceeded south along Greygums Road to a point in the roadway where the plaintiff lost control of his motorcycle, it fell on its side, and then cycle and cyclist slid down the road into a safety fence beside the roadway, the plaintiff thereby sustaining his injuries. There was a safety fence both to the north and to the south of Elk Place which forms a T intersection with Greygums Road on the eastern side. The plaintiff and his motorcycle struck the fence to the south of Elk Place. 4 There was, I am satisfied, a depression caused by a break in the bitumen surface which extended across Greygums Road to the north of the intersection with Elk Place. Constable Stewart, who attended the scene of the accident, observed this depression and scrape marks that led from it a distance of thirty-five metres down to the safety fence. I am satisfied that the northern most end of the scrape marks evidences the place where the plaintiff lost control of his cycle, and that the marks that extended from that point to the fence were made by his cycle thereafter. These scrape marks indicate that the plaintiff was on the correct side of the road but near the centreline when he lost control. The depression to which I have been referring is shown in photograph Exhibit 3 and the scrape marks appear in the photos Exhibit 9B and 9C. The latter two photos were taken by Mr Welsh, for whom the plaintiff was working under contract. Mr Welsh took these photos the day after the plaintiff's accident. 5 It is not the plaintiff's case that there was any collision between the two motorcycles, but that the defendant handled his motorcycle negligently, thus putting the plaintiff in the position of taking urgent evasive action in the course of which he lost control of his cycle. 6 For his part, the defendant has denied that he did anything which contributed to the accident or the plaintiff's misfortune. Liability has been strenuously contested. 7 At the outset it is necessary to describe Greygums Road and the features surrounding the accident scene. I have had the advantage of a view in this case, and I remind myself that s 54 of the Evidence Act permits me to draw any reasonable inference from what I observed on my inspection. 8 Immediately beyond the crest to which I have referred the road bends fairly sharply to the right for motorists driving south. 9 Since this accident happened there have been some changes to the markings on the relevant stretch of roadway. In May 1990 the centre of the roadway in the vicinity of the crest was marked with double unbroken lines but there were no lane lines marked. Since that time, apart from the unbroken centrelines, there have also been marked unbroken white lines dividing the road surface both to the east and to the west of the centrelines. These unbroken white lines define the area for parked cars. 10 At the time of the accident there was an advisory sign beside the road facing motorists travelling south towards the crest, warning of a right hand bend and advising an approach speed of forty-five kilometres per hour. That sign was located approximately 105 metres from the crest. There is still a sign in that position but the advisory speed has now been reduced to forty kilometres per hour. Apart from that advisory sign, there were also seven other notices to the south of the principal advisory sign. Six of these displayed chevrons to alert south-bound motorists to the change in the direction of the roadway. There are now only five chevron notices. 11 In 1990 shortly after the advisory speed sign there was a further notice bearing the legend "Reduce Speed". That notice is no longer there. 12 These various changes are shown by a comparison of the photos comprising Exhibit A, taken shortly after the accident, and those photos comprising Exhibit G, taken quite recently. Allowing for those changes, both sets of photos give the observer an adequate appreciation of that part of Greygums Road with which this action is concerned. Further photos comprising Exhibit F taken on the view add to that appreciation. 13 In addition a survey plan was introduced into evidence as Exhibit 8. This plan locates the crest of Greygums Road and usefully establishes distance references both to the north and to the south of the crest. It also emphasises the nature of the right hand bend located to the south of the crest for motorists travelling south. I accept the survey plan as being accurate, and indeed its accuracy was not challenged. I note that this plan locates the depression in the road surface referred to in para 4 above as being approximately fifty metres to the south of the crest of the hill and I am satisfied that the scrape marks commenced there. 14 It is a feature of the roadway that beyond the crest to the south the road surface for south bound motorists falls away significantly towards the eastern kerb. The plaintiff, who I accept was very familiar with this stretch of roadway, described this bend as "tricky", because of what he called "a fairly extreme left hand camber on a right hand bend" (T16). I accept that description as accurate. 15 The crest of the roadway does, I am satisfied, obstruct vision beyond it. The extent of that obstruction I shall consider later in this judgment. 16 The plaintiff was at the time of his accident an experienced motorcyclist who started to ride minibikes as a ten year old, riding them on various dirt tracks. From the time he was old enough to ride on public streets, the plaintiff owned and rode a succession of motorcycles, continuing to do so up to the date of his accident, by which time he was nearly twenty-eight years old. 17 According to the plaintiff, and this is not in contention, he and the defendant travelled together a distance of about two kilometres to the point where they entered Greygums Road. The plaintiff said that he was the first to enter Greygums Road and there was a slow moving car in front of his cycle also travelling south. He said he "sat behind the car", which was only doing about forty kilometres per hour. The defendant drew alongside the plaintiff and indicated he was going to overtake the car. The defendant did so and drew away. The plaintiff said that the defendant overtook the car at a point "at least 400 yards" to the north of the forty-five kilometres per hour advisory sign. The defendant does not dispute this, and I accept that this is what occurred. It is what happened afterwards that is contentious. 18 According to the plaintiff, having paused, he decided to overtake the car and did so at a point he fixed as "getting down to 250 metres" from that same advisory sign. He said in overtaking he reached a speed of sixty kilometres per hour. He said that when he came back in front of the car the defendant was a fair way ahead, some eighty to ninety metres away. He gave the following evidence as to what occurred after he had overtaken the car (T6-9): "Q. When you come back in front of the car, having overtaken it, Mr Southern is out in front of you?