Cases

Evidentiary issues pertaining to assessing speed in motor vehicle accidents

Torts – negligence – contributory negligence – particular cases – road accident cases – where the first defendant failed to exercise the high degree of vigilance required of a driver, contemplating a turn across the path of an oncoming vehicle – where the plaintiff was driving at an excessive speed – how responsibility should be apportioned

Berwick v Clark [2018] QSC 116 – 28 May 2018 Supreme Court of Queensland Applegarth J

Facts: The plaintiff was driving his car south. The first defendant was driving her car north. They collided at an intersection when the first defendant attempting to turn right. The first defendant was severely injured. The plaintiff sustained a 97% whole person impairment and is confined to a wheelchair. He has no verbal capacity, due to severe brain damage. Quantum was agreed.
Comment: On the plaintiff’s case, the first defendant failed to keep a proper lookout or yield to the plaintiff’s vehicle. On the insurer’s case, the plaintiff was driving at an excessive speed in the dark without his headlights on.
The three issues in the case were:

1. Were the plaintiff’s headlights on?
2. What was the speed and direction of the first defendant?
3. What was the speed and direction of the plaintiff?

Applegarth J was not required to rule on the admissibility of the expert reports on accident reconstruction but made it clear he thought that they were, if admissible, of little probative value.
In respect to the speed and direction of the plaintiff, Applegarth J considered eye witness accounts, the expert reports and the inferences that could be drawn from evidence such as the damage to the vehicles.
The eye witness estimates on speed were vague and contradictory, while the first defendant gave no evidence on that topic except for her statement that the lit car seemed very far away when she saw it.
The expert reports were found to be based on a number of assumptions that were not necessarily supported. The photographs of the wreckage showed that this was a “high speed” collision. Applegarth J felt it was reasonable to infer that the plaintiff was exceeding the speed limit of 70 km/h. He considered that evidence that the plaintiff usually did not speed was relevant but did not preclude the possibility that he had been speeding that night. He concluded the plaintiff was probably going close to 90 km/h.
Held: Applegarth J ultimately found that the first defendant was negligent in failing to keep a proper lookout, failing to properly assess the speed of the plaintiff’s car and failing to yield to the plaintiff’s car.
The plaintiff was contributorily negligent in speeding. He concluded that the first defendant’s degree of negligence was higher and reduced the plaintiff’s damages by 30% for contributory negligence.