New South Wales Supreme Court CITATION : HUNTINGTON v SAUNDERS [2000] NSWSC 1155 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 13587/90 HEARING DATE(S) : 18.10.00, 19.10.00, 20.10.00, 23.10.00, 17.11.00 JUDGMENT DATE : 23 October 2000 PARTIES : Janice Huntington v Thomas Earl Saunders JUDGMENT OF : Adams J at 1 COUNSEL : Mr T D F Hughes (Plaintiff) Mr J Guihot (Defendant) SOLICITORS : G H Healey & Co (Plaintiff) Booth Mather Blackmore (Defendant) CATCHWORDS : Personal Injury CASES CITED : Trompp v Liddle 41 SR (NSW) 108 Byrnes v Snare (1986) 60 ALJR 507 DECISION : See paragraph 19 Revised THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J 23 October 2000 13587/90 JANICE HUNTINGTON v THOMAS EARL SAUNDERS JUDGMENT 1 HIS HONOUR: This action arises out of a motor vehicle accident which occurred on 5 May 1988 at about 6.20pm in Warren, a small country town in western New South Wales. The plaintiff is the widow of the driver of a Toyota Corolla which collided with a Holden panel van at a crossroads. 2 Action was commenced by the deceased. When he died of independent causes in 1997, the present plaintiff was substituted by order of the Court in 1999. 3 The panel van driven by the defendant had been at a petrol station about a hundred metres from the intersection. Amongst other things a fuse was replaced to permit the lights to operate. One of the issues in the case is whether the headlights of the Holden panel van were in fact lit as it moved out of the station and into the roadway. It was initially contended by the defendant that there was still some ambient light in addition to the street lighting. I am satisfied that the sun was well set at the time of the accident and that for all practical purposes it was dark. 4 The defendant in his evidence claimed that the headlights of the vehicle were on, relying in that regard on his having replaced the fuse and pulled out the light switch. I consider that this was an inadequate basis for his conclusion that the light were on. 5 A witness to the accident, Mr Gardner, whose work premises were near the intersection where the collision occurred said - "I was sitting there doing my paperwork and I heard tyres screeching and the motor noise of the V8 and I looked up and I thought I'll see who it is this time. A dark coloured van went past with no lights on and it was going quite fast". (15.27) Mr Gardner had made a statement to the police officer who attended at the scene and reported on the accident. That statement was taken the following day. It states - "When I heard this V8 car I looked up to see what it was. It was a panel van. [It] went past the front of the shop, coming from the BP Service Station, revving out excessively. He would have been doing at least 80-90 kph. He smacked straight into a Toyota at Burton Street very hard.... The panel van definitely didn't have its lights on. Even when I went over to the accident the Toyota still had his lights on but the van didn't". 6 The defendant said in evidence that the lights of the vehicle were not on after the accident because of a disruption to the electrical system caused in the collision. This may well be so. However, I have no doubt that Mr Gardner's evidence, supported as it is by a near contemporaneous statement, is a reliable account of what he witnessed. 7 The police officer made a note of what was said by the defendant and his cousin, who was a passenger in the vehicle. Neither of them referred to the question of lights. 8 The next significant issue concerns the mode of travel of the panel van. The defendant asserted that he was driving at about 50 kph or so at the time of the collision and that he was not accelerating at that time since to do so was pointless as his house was only a short way past the intersection and he would have needed to brake in order to stop there. 9 In addition to Mr Gardner's evidence as to speed which I have briefly referred to and which he repeated in this Court the plaintiff relies on the evidence of Mr Stuart-Smith, a consulting traffic engineer. He concluded - "Based on the reported post impact movements of the vehicle, their rest positions and the reported [point of impact] and using typical deceleration factors, a conservation of momentum analysis was able to be performed. This analysis showed that it is likely that the Holden panel van was travelling at approximately 75 kph or greater at the time of impact. This speed range is consistent with the damage to the Toyota and with Mr Gardner's report of the panel van's speed". 10 Some criticisms were made of Mr Stuart-Smith's conclusion upon the basis that the assumptions upon which it depended were unreliable or incomplete. I do not propose to rehearse those matters here. It is sufficient for me to state that I regarded Mr Stuart-Smith as a careful witness who had given consideration to the matters put to him in this regard and whose answers sufficiently explained why they did not adversely affect his conclusion. 11 Whilst it may be that at the present time the defendant believes the account that he gave to this Court, considering the lapse of time since the events in question and a person's natural desire to reconstruct those events to avoid fault on the one hand and the evidence of the disinterested bystander Mr Gardner, his contemporaneous note and the evidence of Dr Stuart-Smith on the other, I have concluded that more probably than not the defendant did accelerate very quickly out of the exit of the petrol station, that he was still accelerating as he passed the intersection and struck the deceased's motor vehicle and that he was going at least 75 kph and probably faster at that time. 12 The defendant stated, both to the police and in this Court, that he had seen the deceased's motor vehicle coming up to the intersection. It seems to me, having regard to all the circumstances, that the most probable explanation for his mode of driving was that he was racing to the intersection to get there before the deceased's motor vehicle. 13 In a situation where, because the panel van had only been on the roadway for about a hundred metres and its lights were not on and it was accelerating to a very fast speed, I consider that it was probable that a driver in the deceased's position, taking reasonable steps at the give way sign to ensure it was safe to cross, would not have seen the panel van, even though the street lighting would normally have been sufficient to permit the panel van to have been sighted. 14 The situation here, therefore, is to be distinguished from that in Trompp v Liddle 41 SR(NSW) 108 in which the Court observed that a driver is entitled to assume that other drivers will obey the rules of the road. 15 Mr Guihot for the defendant submitted that the defendant was entitled to assume that the deceased would give way to his motorcar. The rule, however, cuts both ways and the defendant, having made it very difficult for any person in the deceased's position to have seen him, gains little from an insistence that the deceased should have given way. All drivers are entitled to assume that other drivers will obey the law. 16 Reference was also made by Mr Guihot to Byrnes v Snare (1986) 60 ALJR 507 which dealt with a collision at an intersection controlled by a give way sign as was this. However, Sir Harry Gibbs in giving judgment, with which the other Justices agreed, pointed out that the person who had right of way was travelling within the speed limit and therefore did not fail to exercise due care by proceeding at the speed with which she was travelling. 17 The mere fact that there was a give way sign and that by reason of the accident the deceased did not give way does not give rise in the circumstances of this case to the conclusion that more probably than not that he had not taken sufficient care for his own safety. 18 I might add that submissions were made to me concerning the reliability of statements made by the deceased to the plaintiff, when he was at the hospital shortly after the accident, as to the cause of the accident. I have been able to determine the question without reference to this evidence. I feel that I should say, however, that I consider the plaintiff's evidence as to these statements to be reliable and truthful and that, despite the terms of a later statement to the police, the deceased's assertions to her to be worthy of some weight. 19 Accordingly, I consider that the plaintiff has established negligence on the part of the defendant and I am satisfied that there is no material contributory negligence by the deceased. ********** Last Modified: 12/08/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.