Anderson v Joyce
[2019] WADC 121
•26 AUGUST 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ANDERSON -v- JOYCE [2019] WADC 121
CORAM: HERRON DCJ
HEARD: 24, 25 & 26 JUNE 2019
DELIVERED : 26 AUGUST 2019
FILE NO/S: CIV 359 of 2016
BETWEEN: GILLIAN MARGARET ANDERSON
Plaintiff
AND
CLARA LOUISE JOYCE
Defendant
Catchwords:
Fatal Accidents Act 1959 (WA) - Motor vehicle accident - Cyclist - Negligence - Contributory negligence
Legislation:
Civil Liability Act 2002 (WA), s 5B, s 5K
Evidence Act 1906 (WA), s 79C, s 79C(1), s 79C(2a)
Fatal Accidents Act 1959 (WA)
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), s 4(1)
Result:
The deceased is not contributorily negligent and the plaintiff is entitled to 100% of her damages to be assessed
Representation:
Counsel:
| Plaintiff | : | Mr T Lampropoulos SC & Mr B G Bradley |
| Defendant | : | Mr M D Cuerden SC & Mr D M G Burton |
Solicitors:
| Plaintiff | : | Bradley Bayly Legal |
| Defendant | : | SRB Legal |
Case(s) referred to in decision(s):
Apostolic Church Australia Limited v Dixon [2018] WASCA 146
O'Connor v Insurance Commission of Western Australia [2016] WASCA 95
RTA v Dederer (2007) 234 CLR 330
HERRON DCJ:
Introduction
At about 3.00 pm on 12 May 2013 Roger Norman Hill was riding a bicycle along Broome Street in a northerly direction towards the roundabout intersection with Eric Street in Cottesloe. At the same time the defendant, Clara Louise Joyce, was driving a BMW sedan in an easterly direction along Eric Street towards the roundabout intersection with Broome Street. Mr Hill was therefore approaching the intersection from Ms Joyce's right. Give way signs regulated traffic entering into the roundabout. As Mr Hill rode his bicycle into the roundabout he collided with Ms Joyce's vehicle on the northern side of the roundabout, as a result of which he was knocked from his bicycle.
By reason of the collision Mr Hill suffered various injuries including a chest injury and a penetration wound to his heart which resulted in his death on 23 May 2013.
The defendant admits she was negligent in causing the collision and Mr Hill's death, but pleads the collision, and Mr Hill's injuries and death, were caused or contributed to by his negligence.[1]
[1] Pars 3 and 4 re-amended defence.
At the time of his death Mr Hill was married to the plaintiff, Gillian Margaret Anderson. Ms Anderson brings this action pursuant to the Fatal Accidents Act 1959 for the benefit of herself and the dependent children of herself and Mr Hill.[2] Ms Anderson denies Mr Hill was negligent in the manner in which he was riding his bicycle.
[2] Pars 7 and 8 statement of claim.
Therefore, the issue before me is whether Mr Hill was contributorily negligent in causing the collision and his injuries which in turn caused his death and if so, what is an appropriate apportionment of liability.
For the reasons which follow, I find Mr Hill was not negligent in his manner of riding his bicycle and that his manner of riding did not contribute to the cause of the collision. I find that the cause of the collision was wholly due to the negligence of the defendant, Ms Joyce.
The pleadings
By pars 3 and 4 of her amended defence the defendant pleads:
3.As to paragraph 4 of the Statement of Claim, the Defendant admits that she drove negligently, but says that the collision was caused or contributed to by the negligence of the deceased.
Particulars of Contributory Negligence
The deceased was negligent in that he:
3.1.travelled at an excessive speed in the circumstances;
3.2.failed to keep a proper lookout;
3.3.failed to take sufficient or any regard of the Defendant's approaching vehicle;
3.4.rode his bicycle at an excessive speed in order to 'beat', rather than give way to, an approaching vehicle or vehicles to his (the deceased's) right; and
3.5.by travelling at an excessive speed and/or failing to take sufficient or any regard of the Defendant's vehicle, the deceased failed to allow himself any or any sufficient time to take any or any sufficient evasive action to avoid colliding with the Defendant's vehicle.
4.As to paragraph 5 of the Statement of Claim, the Defendant:
4.1.admits that the deceased suffered some injuries as a result of the collision, which ultimately resulted in his death at Sir Charles Gairdner Hospital on 23 May 2013;
4.2.says that the injuries suffered by the deceased were caused or contributed to by the deceased's own negligence and repeats the particulars set out in paragraphs 3 of the Re-Amended Defence.
The defendant's submissions
By par 2 of her written outline of opening submissions the defendant, having admitted she failed to see Mr Hill as he came down Broome Street to her right, submits:
2.However, the deceased, a cyclist, was travelling at an excessive speed, trying to beat vehicles to his right into the intersection, and failed to keep a proper lookout or pay sufficient regard to the defendant's vehicle. If he had been travelling at a safe speed and paying attention, he would have seen the defendant's vehicle move slowly into the intersection and been able to brake or take other evasive action to avoid the collision. His speed and inattention meant he gave himself no time to do so. This materially contributed to the collision.
The defendant also submits:
34.Reasonable care for the deceased's own safety required him to ride at a safe speed and to keep a proper lookout and pay attention to vehicles around him. It required him to be alert to the possibility that a vehicle might fail to give way, and to be able to take evasive action if it did. That is, as said above, reasonable care for the deceased's own safety required that he not 'cut things so fine as to allow no margin of safety for the mistakes or thoughtlessness' of others including the defendant, which is exactly what he did.
…
36.Had the deceased been travelling at a safe speed and paying proper attention, he would have been able to react to the defendant's negligence in moving (slowly) into the intersection. Because of his excessive speed and lack of attention, the deceased left himself with no time to take evasive action and avoid the collision. The deceased's contributory negligence therefore materially contributed to the collision and therefore his death.
…
40.As to the issue of apportionment, the defendant was negligent in failing to keep a proper lookout and to give way to the deceased, but she was not driving in an otherwise unsafe manner, eg she was not driving at excessive speed or in a manner that was otherwise reckless.
41.By contrast, the deceased's conduct, with respect, involved a gross departure from reasonable care for his own safety. This is not a case of a child riding a bicycle; the deceased was 63 years old.
42.It is accepted that the defendant should bear the majority of responsibility, but the deceased's responsibility was significant.
43.In the circumstances, the plaintiff's damages should be reduced by at least one-third on account of the deceased's contributory negligence.
(emphasis added)
Therefore, the main basis upon which the defendant pleads Mr Hill was contributorily negligent is that he was riding at an excessive speed. The defendant's case is that if Mr Hill was travelling at an 'excessive' speed he was travelling at an unsafe speed. It must follow that by her plea the defendant accepts there was a safe speed at which, having regard to all the circumstances which existed at the time, Mr Hill should have been riding his bike.
Given the way in which the defendant pleaded and presented her case, it was my initial view that I would need to make a finding of fact as to the speed at which Mr Hill was riding his bicycle. In his oral opening submissions, senior counsel for the defendant submitted I did not need to make a finding as to how fast Mr Hill was riding his bicycle measured in kilometres per hour to be able to find that he was travelling at an excessive speed.[3] It was submitted I could be satisfied Mr Hill was travelling at an excessive speed without having to make a specific finding as to the actual speed. It was submitted that a speed was excessive if it did not allow a person to react to circumstances which arose so as to avoid a collision. The submission seemed to be to the effect that if Mr Hill was unable to react in time to avoid the collision with Ms Joyce's vehicle he was therefore riding at an excessive speed, at whatever speed he was riding.[4]
[3] ts 55.
[4] ts 56.
It was further submitted, based on Mr Hill's statement in his unsigned police statement that he was 'going quite quickly for a pushbike',[5] and a statement Mr Hill made to a police officer in the Intensive Care Unit (ICU) at Sir Charles Gairdner Hospital (SCGH) that he 'was going fast for a bike',[6] I can draw the inference Mr Hill was travelling at an excessive speed without the need to find at what speed he was travelling.[7]
[5] Exhibit 1.4, par 15.
[6] Exhibit 1.1 CP4 trial bundles, ts 109.
[7] ts 59.
It was also submitted by senior counsel in opening that based upon statements he submitted were made by Mr Hill to doctors at SCGH that he was travelling at 50 km per hour I should make a finding Mr Hill was travelling at 50 km per hour which, although that is the maximum speed limit for the area, it was in all of the circumstances excessive.[8] It was submitted that even if I were to find Mr Hill was travelling at 25 km – 30 km per hour, as Mr Hill said in his unsigned police statement,[9] I should find he was travelling at an excessive speed because he was not able to react in time to avoid colliding with Ms Joyce's vehicle.[10]
[8] ts 58.
[9] Exhibit 1.4, pars 8 and 15.
[10] ts 308.
In closing, senior counsel submitted a safe speed in the circumstances of the accident was 'something less than 25 kilometres an hour'.[11]
[11] ts 310.
It was submitted that to take proper care for his own safety Mr Hill should have slowed down and not tried to rush through the intersection before Mr Maddison, who was travelling from Mr Hill's right into the intersection, had passed through the intersection.[12]
[12] ts 310.
The evidence
By consent, pursuant to s 79C of the Evidence Act 1906 (WA), the defendant tendered a copy of Mr Hill's unsigned typed statement made to Senior Constable Bedworth[13] with an accompanying email from Mr Hill to Senior Constable Bedworth dated 21 May 2013.[14] The typed written statement was sent to Mr Hill by Senior Constable Bedworth by email on 16 May 2013 at 3.47 pm to which Mr Hill's email responds. The statement was taken from Mr Hill on 15 May 2013 between 11.00 am and 12.00 pm while Mr Hill was a patient in the High Dependency Unit (HDU) of SCGH.[15]
[13] Exhibit 1.4.
[14] Exhibit 1.3.
[15] Exhibit 2 handwritten notes of Senior Constable Bedworth.
Mr Hill's unsigned statement reads:
Roger Norman Hill
STATES
1.I am 63 years of age and I reside in Cottesloe.
2.I am self-employed as a business owner.
3.On Sunday 12th May 2013, at about 3.00pm, I was riding my grey 'Giant' pushbike north along Broome Street, Cottesloe.
4.It was bright and sunny at that time, and there was a light wind from behind me.
5.I was riding towards the intersection with Eric Street, which is governed by a roundabout and I was riding to the left of a continuous white line that seems to designate a portion of the road for cyclists.
6.This is a route I have ridden on my pushbike for between ten or fifteen years, but no more than once a week. I would say that I am fairly familiar with this intersection.
7.As I approached this intersection, I had a good clear view from a long way back of traffic approaching the roundabout.
8.At this time I guess I was travelling around 25 – 30 kph.
9.I could see at least one, possibly even two, cars approaching the roundabout along Eric Street from my right, that is to say they were travelling in a westerly direction.
10.I think there may have been a car approaching the roundabout from the opposite direction to mine along Broome Street.
11.I also remember noticing a car going very slow, or even possibly stopped, at the intersection of the roundabout on Eric Street travelling in an easterly direction.
12.The vehicles travelling from my right had priority over myself when entering the roundabout, so I was watching them and trying to moderate my speed so that I didn't have to stop.
13.As I was watching the traffic to my right, I wasn't paying particular attention to the vehicle to my left, as I assumed that it would give way to me.
14.I entered the roundabout after the cars had passed in front of me.
15.I was probably going quite quickly for a pushbike, somewhere between 25 – 30kph.
16.When I was well into the roundabout, it became clear that the driver of the car to my left was pulling out.
17.I then had to brake very hard to try and slow down.
18.I turned my handlebars in an effort to steer around the car, but it was not effective.
19.I hit the side of the car and the next thing I remember is landing on the road.
20.After landing, I could not breathe and realised I was bleeding.
21.Two women came over and start helping me by trying to put me in the recovery position, but this did not help at all.
22.I remember thinking 'I might die here!'.
23.Whilst I was laying on the road, I remember a youngish woman say to me 'I'm sorry, I'm sorry'.
24.I don't remember how long I had been there, but eventually an ambulance arrived and they took me to hospital in an ambulance.
25.I was admitted to the Intensive Care Unit and was transferred to the High Dependency Unit for further treatment.
26.This statement is true to the best of my knowledge and belief. I have made this statement knowing that, if it is tendered in evidence, I will be guilty of a crime if I have wilfully included in the statement anything that I know to be false or that I do not believe is true.
Mr Hill's email to Senior Constable Bedworth of 21 May 2013, which was sent at 14.55, with the subject matter 'Statement', reads:
hi Phil
thanks for your email – sorry it has taken me a few days, I've had problems getting my home computer set up and have only just seen it.
It's fine, actually pretty accurate. the only thing now is to update the last para – I think I went from ICU to HDU [I think that's high dependency unit, it's where I was when you came to see me] on the Tuesday or Wed morning last week. I was there until about noon on Saturday 18th when I was released and came home.. i have been here since then. I would write the final para but don't know how to change your document and send it back to you …
It transpires that the dire warnings I have been receiving about the time it will take to recover may be roughly right, it certainly isn't quick. If it would suit you, and you need me to sign the statement, please come to the house. If that's not how it's done we can no doubt arrange couriers. My telephone here is[16] … I don't go anywhere except I might be in the shower or having a short walk when you come so a call would be worthwhile.
Kind regards
Roger
[16] Telephone number redacted.
Mr Hill died on 23 May 2013. He did not get to sign the statement before his death. It is however clear from his email to Senior Constable Bedworth that he accepted the contents of the unsigned statement as accurate and was prepared to sign it subject to updating the information to reflect that after he was interviewed by Senior Constable Bedworth Mr Hill was discharged home from the HDU on Saturday 18 May 2013.
In his handwritten notes of his interview with Mr Hill[17] Senior Constable Bedworth recorded Mr Hill as saying:
I am relying on her giving way, unfortunately didn't account for her doing what she did. Well into ro [roundabout] became clear she is pulling out.
[17] Exhibit 2.
Summary of evidence
Clara Louise Joyce
The defendant, Clara Louise Joyce, is a student.
Ms Joyce had been to the Ocean Beach Hotel in Cottesloe for lunch with her family for mother's day. She parked her BMW motor vehicle in the carpark next to the bottle shop. She drove out of the carpark and turned right onto Eric Street. Her sister was a left front seat passenger. She drove in an easterly direction along Eric Street towards the roundabout intersection of Eric Street and Broome Street. She checked her speedometer twice. She was travelling at 50 km per hour. As she approached the roundabout at Broome Street she slowed almost to a stop. She checked to her right and did not see anything. She then proceeded into the roundabout at about 5 – 10 km per hour. About halfway through the roundabout she looked to her right and saw a cyclist and within a few seconds the cyclist had collided with her vehicle. She immediately stopped her vehicle and checked to see if the cyclist was okay. He was not and she called an ambulance. She was in quite a bit of shock and sat down on the side of the road and waited for the ambulance.[18]
[18] ts 87.
Ms Joyce was very familiar with the roundabout intersection having driven through it on many occasions as at May 2013.
The accident occurred at 3.00 pm in the afternoon. When she was at the intersection Ms Joyce noticed Broome Street was mostly in shadow from tall pine trees[19] near the kerb. When she looked to her right along Broome Street from the intersection she did not see a car or any movement.[20]
[19] ts 88.
[20] ts 88.
Ms Joyce estimated the collision occurred just over halfway through the roundabout.[21] She marked a google map with a cross indicating where she estimated the point of collision.[22] On the map she indicated the point of collision to be adjacent to the give way sign on the northern side of Broome Street for traffic travelling south. Ms Joyce described the point of collision as 'just towards the middle of the left lane of the Broome Street roundabout'.[23]
[21] ts 88.
[22] Exhibit 4.
[23] ts 89.
In cross-examination, Ms Joyce said that after she crested the hill on Eric Street and was travelling down the hill towards the roundabout, although she was not certain she thought she would have been travelling at 45 km per hour.[24] She was uncertain when she started to slow down but was certain she came almost to a stop when she reached the roundabout.[25] She accepted that to come almost to a stop at the roundabout from a speed of 45 – 50 km per hour she must have braked firmly.[26]
[24] ts 92.
[25] ts 92.
[26] ts 92.
She started looking to her right to check for traffic prior to entering the roundabout. She estimated she probably spent 45 seconds looking to her right before moving forward into the intersection.[27] She did not see the cyclist. Nor did she see cars entering the roundabout or approaching the roundabout from the opposite side.[28] There were no cars on the roundabout when she entered.[29]
[27] ts 92.
[28] ts 93.
[29] ts 93.
When asked where the pine trees which cast the shadows on Broome Street were, she agreed the first pine tree was some distance back from the roundabout but she could not with certainty say what the distance was.[30] She confirmed the weather was clear and that there was no rain and no clouds.
[30] ts 93 – 94.
Ms Joyce agreed that the roundabout was a wide open roundabout with very good lines of view.[31]
[31] ts 94.
Ms Joyce said that when she did not see any approaching vehicle or a cyclist she slowly accelerated forward into the roundabout.[32] She first became aware of the cyclist when she was halfway through the roundabout when she turned to the right and saw the cyclist and within a split second they had collided.[33] The cyclist was on the inside of the roundabout.[34] The collision occurred to the front of the driver's door and the right corner of the windscreen near the driver's door.[35] Ms Joyce did not brake before the collision because it happened in a split second.[36] She travelled a quarter of the length of her vehicle before she came to a stop.[37]
[32] ts 94.
[33] ts 94 – 95.
[34] ts 95.
[35] ts 95.
[36] ts 95.
[37] ts 95.
Ms Joyce agreed that if the cyclist was intending to head north along Broome Street from the roundabout she effectively blocked the road.[38] Ms Joyce said that from being almost stopped at the give way sign before she entered into the roundabout she then accelerated slowly to 5 – 10 km per hour and had travelled a quarter of the way through the roundabout when the collision occurred.[39] She was intending to travel east along Eric Street so from her point of view she had travelled halfway through the roundabout.
[38] ts 96.
[39] ts 97.
Ms Joyce agreed that having almost come to a stop at the give way sign she accelerated into the roundabout in a normal way that a driver would to move forward through the roundabout.[40]
Graham Maddison
[40] ts 101 – 102.
On 12 May 2013 Mr Maddison was driving along Eric Street in a westerly direction towards the intersection with Broome Street. He was with his partner, Ms Staszewski, who was in the front passenger seat. It was about 3.00 pm.
As he entered the intersection he was about halfway between Eric and Broome Streets when he noticed a pushbike coming from his left.[41] He slowed as he approached the give way sign facing him on Eric Street but did not come to a complete stop and proceeded into the intersection. As he proceeded into the intersection he did not see any other vehicles within the intersection.[42] He saw the pushbike on his left coming along Broome Street towards the intersection. He saw the rider look across at his vehicle.[43] He described the rider as having 'shot across' in front of his vehicle.[44] When he was level with the intersection of Eric Street (i.e with Broome Street) he looked across to his right to see where the rider had gone and noticed he had cut across to the kerbside of the roundabout.[45] At the same time he noticed a dark green car on Eric Street travelling east, which had just started to enter the intersection.[46] The bike hit the front right side, just in front of the driver's door.[47]
[41] ts 102.
[42] ts 121.
[43] ts 122.
[44] ts 122.
[45] ts 122.
[46] ts 122.
[47] ts 122.
When Mr Maddison first saw him, the cyclist was probably 5 m back from the give way sign facing him.[48] At that point Mr Maddison was halfway between Eric and Broome Streets on the arc of the roundabout.[49] He estimated the cyclist was travelling at 15 ‑ 20 km per hour.[50] He was not sure whether the cyclist was peddling or free‑wheeling but he was coming at speed.[51]
[48] ts 122.
[49] ts 122.
[50] ts 123.
[51] ts 123.
Mr Maddison said that when he saw him the cyclist shot a look at him and then cut across in front of him and went to the inside kerb lane. At about that time he saw the other car had just started to enter the intersection. He then saw the cyclist hit the car.[52]
[52] ts 135.
He estimated the lapse of time from when he first saw the cyclist to when the cyclist hit the car as maybe 2 ‑ 3 seconds.[53] The cyclist travelled probably 20 m from the give way line to the point of collision.[54]
[53] ts 135.
[54] ts 136.
When he first saw the other driver she was at the give way sign facing her on Eric Street. He then saw her moving forward very slowly.[55] He said the vehicle had travelled about halfway between Eric Street and Broome Street, in much the same position as he had travelled but on the opposite side of the roundabout, to the point of collision.[56]
[55] ts 136.
[56] ts 137.
He also marked where he estimated the point of collision was on a Google map.[57]
[57] ts 138, exhibit 6.
He estimated the other vehicle had travelled probably 5 m to the point of the collision.[58] He did not notice any change of speed of the bicycle from the time he first saw it to the point of collision.[59]
[58] ts 138.
[59] ts 138.
The cyclist went over onto the bonnet of the car and hit the windscreen smashing the windscreen.[60] The cyclist was wearing joggers, pale blue shorts, a white greyish type shirt and a helmet.[61]
[60] ts 139.
[61] ts 139.
In cross-examination Mr Maddison confirmed when he first saw Ms Joyce's vehicle he was in the roundabout and had a clear line of sight to Ms Joyce's vehicle.[62]
[62] ts 140.
When Ms Joyce started to enter the roundabout Mr Maddison was level with Broome Street.[63] He described his vehicle as being alongside the triangular island on the southern side of Broome Street.[64]
[63] ts 140.
[64] ts 142.
Mr Maddison confirmed that the visibility was good.[65]
Margaret Ann Staszewski
[65] ts 142.
Ms Staszewski was a left front seat passenger in the vehicle driven by her partner, Mr Maddison. They were travelling in a westerly direction along Eric Street towards the intersection with the Broome Street.[66] As they approached the roundabout she saw a cyclist on her left coming into the intersection. She was also aware of a vehicle coming into the intersection from the opposite direction.[67] After they entered the roundabout she looked to her right and saw that the cyclist had collided with the other vehicle.[68] When she first saw the other vehicle it was before the give way line facing it.[69] She estimated her vehicle to be 15 ‑ 20 m from the give way line facing them when she first saw the other vehicle.[70] She could not say where the cyclist was when she first saw him and whether he had reached the roundabout.[71]
[66] ts 143.
[67] ts 143.
[68] ts 143.
[69] ts 143.
[70] ts 144.
[71] ts 144.
She was pressed in examination‑in‑chief to give an estimate of where the cyclist was in relation to the roundabout when she first saw him. She estimated the distance to be one and a half times the width of the courtroom.[72] The parties agree the distance is 9 m.[73]
[72] ts 148.
[73] ts 228.
She estimated the time which elapsed from when she first saw the cyclist to the point of collision to be three seconds.[74] She described the cyclist as riding quite swiftly.[75] She was unable to estimate the speed at which the cyclist was travelling.[76]
[74] ts 148.
[75] ts 149.
[76] ts 149.
After the collision the cyclist rolled onto the bonnet of the vehicle.[77]
[77] ts 149.
She also marked Google map to indicate where she said the point of the collision between the vehicle and the bicycle was.[78]
[78] ts 149, exhibit 7.
Ms Staszewski said that as the cyclist entered the intersection he looked towards their vehicle. It was a glance.[79] She also marked the map to indicate where she said their vehicle was at the point of the collision between the cyclist and the other vehicle.[80]
[79] ts 150.
[80] ts 150 – 151, exhibit 7.
Mr Maddison did not need to take any evasive action or slow down to avoid the cyclist when the cyclist entered the roundabout.[81]
Christian Mark Patten
[81] ts 151.
Senior Constables Patten and Nankivell attended the scene of the accident. When they arrived Mr Hill was lying on the kerbing of the roundabout near the vehicle stationary on the road.[82] An ambulance was present and the ambulance officers were attending to Mr Hill.[83]
[82] ts 104.
[83] ts 104.
Senior Constable Patten marked on the road the outline of the stationary vehicle which was pointing in an easterly direction along Eric Street. The front of the vehicle was adjacent to, or nearly adjacent to, the island in the middle of the northern side of Broome Street towards the southern bound lane. The markings were still evident in photographs later taken by an investigator Mr Anderson on 18 July 2013 as seen in a photograph.[84] The marking 'V1' means vehicle one.[85]
[84] Exhibit 1.11, page 38.
[85] ts 105.
About two to three hours after he arrived at the scene Senior Constable Patten attended at the emergency department of Sir Charles Gairdner Hospital to which Mr Hill had been taken.[86] Mr Hill had tubes coming from his abdomen which Senior Constable Patten found concerning. Mr Hill was breathing with the aid of an oxygen mask.[87] He asked Mr Hill if he had next of kin and Mr Hill advised her name was Gillian (Ms Anderson). He asked for Ms Anderson's phone number which Mr Hill provided. He then asked Mr Hill 'do you know what happened' and Mr Hill said 'yeah, I was going fast for a pushbike'. Mr Hill was then cut off mid-sentence because his oxygen levels had dropped and a nurse ordered him to put his mask back on. Senior Constable Patten advised Mr Hill he would make contact with his next of kin.[88]
[86] ts 107 – 108.
[87] ts 108.
[88] ts 109.
Senior Constable Patten observed that Mr Hill was very aware and was able to hold a good conversation. Senior Constable Patten did not consider that Mr Hill had concussion. He was able to correctly provide Ms Anderson's phone number. He knew where he was.[89]
[89] ts 109 – 110.
Senior Constable Patten made notes in his notebook of the conversation with Mr Hill as he was talking to Mr Hill.[90] Mr Hill also told Senior Constable Patten that he was riding along Broome Street, riding south to north.[91]
[90] Exhibit 1.1, ts 110.
[91] ts 111.
In cross-examination, Senior Constable Patten agreed that from his markings of where Ms Joyce's car stopped after the collision the front of the car was approximately in a north south line from the eastern edge of the centre kerbing on Broome Street where the give way sign was positioned.[92] Senior Constable Patten did not take any measurements.[93]
[92] ts 113.
[93] ts 113.
The pushbike Mr Hill was riding was not a racing bike.[94] Senior Constable Patten did not recall whether or not the bike was damaged.[95]
[94] ts 115.
[95] ts 115 – 116.
He said the conversation with Mr Hill at the emergency department took about three or four minutes including Senior Constable Patten taking a note of the conversation.[96] He assessed Mr Hill as being fully coherent and lucid on the basis of the three questions he asked him in the three to four minute conversation he had with Mr Hill.[97] He did not check with medical staff whether Mr Hill had been given any medication and if so what.[98] The purpose of his questions was to determine what injuries Mr Hill had suffered and whether he was fit to have a 'quick chat' with him.[99] Senior Constable Patten spoke to the triage nurse.[100] He became later aware of the injuries suffered by Mr Hill including that he had suffered broken ribs.
[96] ts 116 – 117.
[97] ts 117.
[98] ts 117.
[99] ts 117.
[100] ts 117.
The extent of the conversation about the circumstances of the accident was that Mr Hill said 'I was riding south to north on Broome Street. I was going fast for a bike'.[101]
[101] ts 119.
Senior Constable Patten said that there was no issue with visibility. He could see clearly in both directions without any issues.[102]
[102] ts 119.
Mr Hill was wearing light clothes including light coloured shorts. They were everyday shorts, not lycra shorts.[103]
Gerrie John Anderson
[103] ts 119.
Mr Anderson is employed by Verifact as a private investigator working for the Insurance Commission. He attended the accident scene on 18 July 2013, about nine weeks after the accident. He was present from 12.10 pm ‑ 1.00 pm. He took five photographs of the roundabout and the surrounding streets.[104]
[104] Exhibit 1.11, ts 160.
By reference to a photograph which he later captioned, Mr Anderson said the photograph taken from the southern side of Broome Street from the intersection was taken 35 m from the intersection.[105] He also took a photograph of the markings on the road surface made by Senior Constable Patten.[106]
[105] Exhibit 1.11.1, ts 165.
[106] Exhibit 1.11, ts 166, page 38.
He only took one other measurement at the scene, which was a measurement of 12 m from the give way line on the western side of Eric Street to the edge of a car drawn on a plan which was prepared by a draftsperson based on a sketch made by Mr Anderson of the scene.[107]
[107] Exhibit 1.8, ts 167.
Mr Anderson agreed that in the photograph he took 35 m from the southern entrance to the roundabout on Broome Street the white coloured items on the verge are roughly in line with the first pine tree.[108]
[108] Exhibit 1.11 (page 36), exhibit 1.11.1, ts 169.
He agreed that the first pine tree was approximately 35 m from the give way line on Broome Street at the intersection.[109]
[109] ts 170.
The photograph looking east on Eric Street from the western side of the roundabout was also taken 35 m from the give way sign.[110]
[110] Exhibit 1.11 (page 34), ts 170.
SCGH medical records
Pursuant to s 79C of the Evidence Act the defendant sought to tender the medical records of SCGH concerning Mr Hill's admission to the ICU soon after the accident on 12 May 2013 and his later transfer to the HDU on 14 May. The medical records cover the period 12 May – 16 May 2013.[111]
[111] Exhibits 1.12 – 1.17.
Overruling the objection of the plaintiff, I allowed the tender of the records on the basis they were relevant to a fact in issue in the trial, namely the speed at which Mr Hill was riding his bicycle. I ruled the medical records were relevant and admissible pursuant to both s 79C(1) and s 79C(2a), that is, as a business record. I was satisfied that statements recorded in the medical records were made by a qualified person, either Mr Hill or someone else, from which it was open to conclude that they are evidence as to the speed at which Mr Hill was travelling, that is, that he was travelling at 50 km per hour at the time of the collision with the defendant's vehicle. That of course was a ruling I made for the purpose of determining the admissibility of the records. It was not a ruling made for the purposes of the ultimate decision I was required to make regarding whether Mr Hill was negligent in the way in which he rode his bicycle and if so, what is an appropriate apportionment of liability.[112]
[112] ts 219 – 226.
The nursing triage notes read:[113]
2045 Pts family aware going to ICU [Intensive Care Unit] -
Presenting problem:
Car v's cyclist
Assessment
63 yr old male BIBA [brought in by ambulance] post car vs cyclist – hit by car into windscreen. ? speed car approx. 20 km/hr. Unable to ambulant at scene. Ⓐ patient and vocalising. Ⓑ NIL chest sounds on LT [left] side RR36 – Ⓒ skin warm and dry. HR [heart rate] reg [regular] Ⓓ GCS [Glasgow Coma Scale] 15 BSL 7.8 – bruising/abrasion noted to LT [left] chest.
[113] Exhibit 3, ts 188.
The relevant entries in the medical records read as follows:[114]
[114] Exhibits 1.11 – 1.17.
Emergency Dept Continuation Notes[115]
[115] Exhibit 1.11, pages 39 – 41 trial bundle.
12/5/13 CARDIOTHORACICS REVIEW
1720
63 years of age
Cyclist vs car this afternoon 50km/hr
Was at roundabout → BMW failed to give way and hit pt on L) side → Landed on R) chest
Does not think he lost consciousness but is unsure
…
ICC [intercostal catheter] inserted
…
O/E (on examination)
- GCS 15 [Glasgow Coma Scale]
- Alert, orientated
- Speaking in sentences, Ltd by L) chest pain [cardiothoracic surgical]
…
Signed by Dr Murphy CTS Reg
Inpatient Notes
13/05/13 ICU admission notes
63 year old male.
Push bike v car accident.
Patient was cycling at 50 kmph, at round about, car failed to give way → Patient hit driver's side and landed on Rt side
Pt doesn't think he lost consciousness but not sure. SJA (St Johns Ambulance) called by bystanders. Pt not ambulant in the scene.
…
Impressions bike vs car accident
Multiple rib # [fractured] bilaterally and bilateral haemopneumothorax, # [fractured] sternum, fail chest, ? lung contusion, soft tissue injury, pain well controlled with Fentanyl PCA [patient controlled analgesia].
…
13/5/13 CTS [Cardiothoracic Surgery] WR [ward round?]
8.30 Mr Passage and Team
Presented 12/5 bilateral haemopneumothorax
Car vs bike
Pain well controlled currently on Fentanyl.
PCA [patient controlled analgesia]
…
Trauma Services R/V
13/05/13
0858 hrs
HX (history) notes
…
63yr/ⓜ: Bicyclist hit by car ≈ [approximately] 50 km/hr
…
13/5/13 ICU review
Days post trauma pushbike vs car (high speed) no loc [loss of consciousness]
Inpatient Notes
14/5/13 CTS HDU [high dependency unit] Admission notes 12:20
Admitted 2 days ago after car vs pushbike accident @ 50 kmph.
…
14(?)/5/13 ICU Discharge Summary -[116]
[116] I am uncertain from the handwriting whether the date is correct.
63 [male] trauma pt [patient] pushbike vs car
…
Currently
CNS [central nervous system]: fully alert no confusion
No focal neurology
Intensive Care Unit Flow Chart[117]
ADMISSION DATE: 12.05.13
TODAY'S DATE: 12.05.13
DAYS IN ICU: 1
Diagnosis: cyclist vs car (50kph) collided [-] car (L) side and landed (R) chest. Nil LOC [loss of consciousness]. Flail chest # [fractured ribs] (L) 8 – 11/#??). #sternum clear cspine (L) elbow adema, abrasions
…
12/05/13
…
[117] Exhibit 1.16, ts 227.
Speed at which Mr Hill was riding his bicycle
In support of her submission that Mr Hill was travelling at an excessive speed, the defendant submits I can be satisfied from the medical records that Mr Hill admitted he was travelling at 50 km per hour. In his closing submissions senior counsel for the defendant submitted that the best estimate of both the speed at which Mr Hill was travelling prior to the collision and as to whether his speed was excessive is Mr Hill's own estimate and assessment.[118] It is submitted Mr Hill told doctors at SCGH ICU that he was travelling at 50 km per hour. The defendant submits that Mr Hill's estimation of the speed at which he was travelling made by him immediately after the collision is the most reliable evidence of the speed at which he was travelling.
[118] ts 257.
The speed limit for traffic travelling on Broome and Eric Streets is 50 km per hour.[119]
[119] Accepted by both parties, ts 257.
I turn to consider what is recorded in the SCGH medical records and what findings can be made based on those records.
I am satisfied it is likely the information about the circumstances of the collision recorded in the emergency department continuation notes in the cardiothoracic review on 12 May at 17.20 (5.20 pm) came from Mr Hill. Mr Hill was admitted to the emergency department at approximately 3.30 pm.[120] Therefore by the time of the cardiothoracic review he had been admitted to the emergency department for approximately two hours. Mr Hill did not think he had lost consciousness but he was unsure. It is evident from the symptoms presented by Mr Hill and the diagnosis of the various injuries he had suffered that those injuries were significant. He had suffered rib fractures. An intercostal catheter, that is a catheter inserted between two of his ribs for draining fluid had been inserted. He was diagnosed as suffering 'flail chest'. Although no medical evidence was led as to what is a 'flail chest', it is defined as 'a thoracic injury in which multiple rib fractures cause instability in part of the chest wall and paradoxical breathing, with the lung underlying the injured area contracting on inspiration and bulging on expiration. If it is uncorrected, hypoxia will result.'[121]
[120] ts 107 - There is no evidence of a precise time when Mr Hill was admitted to hospital. The accident occurred at about 3.00 pm. Senior Constable Patten arrived at the scene just after 3.00 pm, about 10 minutes after he was allocated the job. An ambulance was already present at the scene, ts 103. SCGH hospital is about 10 – 15 minutes travelling time from the scene. Senior Constable Patten spoke to Mr Hill in the emergency department at between 2 – 3 hours afterwards.
[121] Mosby's Dictionary of Medicine, Nursing and Health Professions (2nd Australian and New Zealand edition).
The recorded observations under examination on the second page of the notes record observations including 'paradoxical chest movement' and 'bubble – through blood'. The intercostal catheter was redirected.
It was also recorded that Mr Hill was alert and orientated and speaking in sentences but limited by left chest pain. Dr Murphy's report concluded under the heading 'Plan' for CT scans to be performed of Mr Hill's chest and abdomen and an X-ray of his left elbow, and to be admitted under cardiothoracic surgical for observation in the HDU depending on the outcome of the CT scans.
I am satisfied Mr Hill would have been distressed by and preoccupied with, the nature of his injuries and his circumstances. He would have been suffering significant pain. Although I accept from a medical point of view he was alert and orientated and able to speak, that is a far thing from being able to conclude that any information he provided regarding the circumstances of the collision was accurate and reliable, or that the doctors accurately and reliably recorded any information provided by Mr Hill. The doctors would have been focused on accurately diagnosing Mr Hill's medical condition for the purpose of being able to make recommendations as to what medical investigations should be undertaken and what treatment should be provided. They would only have been concerned to obtain the briefest information to allow them an understanding of the circumstances which caused the injuries to Mr Hill. They would not have been concerned to go into precise detail regarding the circumstances of the accident. They were recording information for the purposes of medical diagnosis, not for the purpose of an accurate or comprehensive account of the circumstances of the accident. It is unclear whether the notes were being made at the time Mr Hill was being spoken to by the doctors and being assessed or whether the notes were compiled afterwards. Treating doctors, especially emergency physicians, cannot be expected to always take accurate notes of what they are told. It is not unusual for medical records to be inaccurate in respect of some details regarding what doctors are informed.
I accept the entry on 12 May 2013 refers to a speed of 50 km per hour. However, by reference only to the notes of Dr Murphy of 12 May, it is unclear to what the speed relates. At first blush, the note appears to refer to the speed at which the car was travelling. The defendant submits that the speed cannot be a reference to the speed at which her vehicle was travelling because it is clear, on all of the evidence, she was travelling very slowly or had almost stopped at the give way sign. Therefore the speed can only be a reference to the speed at which Mr Hill was riding his bicycle.
While the plaintiff accepts that the defendant was not travelling at 50 km per hour at the time of the collision, she says that the fact the notes apparently refer to the car travelling at that speed underline the unreliability of the notes and whether they do record Mr Hill saying he was riding at 50 km per hour.
At the time Mr Hill was seen in the cardiothoracic review he was probably wearing an oxygen mask. That is confirmed by the nature of chest injuries suffered by Mr Hill and the need to insert an intercostal catheter. It is also confirmed by the observations of Senior Constable Patten who spoke to Mr Hill in the emergency department between approximately 5.30 pm and 6.30 pm. It is unknown whether when Mr Hill spoke to the doctor he took off the oxygen mask or whether he continued to wear it. If he did continue to wear the mask it may have impacted upon the clarity of what Mr Hill said. However, because it is uncertain, I make no finding as to the clarity of what Mr Hill said based only upon whether he was or was not wearing an oxygen mask at the time.
The plaintiff also submits that the reference as to speed could be a reference to the speed limit in the area of 50 km per hour. In my view that is unlikely and I reject it as a likely explanation for the reference to 50 km per hour. In my view it is more likely a reference to the speed at which either the cyclist, or the car, was travelling. The speed at which the vehicle and the bicycle were travelling is relevant to the history the doctor needed to take as to the circumstances which caused the injuries to assist in properly assessing the nature and extent of the injuries. The doctor needed to understand what type of trauma or force caused the injuries. The greater the speed of the motor vehicle or the bicycle the greater potential for serious injuries to be suffered as a consequence of a collision between the two.
The defendant submits that I cannot look at one entry in isolation and must only make findings as to whether the reference to a speed of 50 km per hour is a reference to the bicycle, in the context and the circumstances of other evidence, in particular other medical records. I acknowledge that to make any findings, or draw any inferences, about Mr Hill's speed it is necessary to consider all of the evidence which is relevant to his speed and not to consider an entry in the medical records in isolation.
Primarily, the defendant relies upon the entry in the inpatient notes made on 13 May 2013 in which, it is submitted, it is made clear that the reference to 50 km per hour is a reference to the speed at which Mr Hill was riding his bicycle and not a reference to the speed at which Ms Joyce was travelling or a reference to any other speed. The medical record begins 'ICU admission notes'. The defendant relies upon the entry:
63 year old male
pushbike vs car accident
- Patient was cycling at 50 kmph at roundabout, car failed to give way → patient hit driver's right side and landed on RT side.
There is a further entry to the patient thinking he did not lose consciousness but he was not sure and to St John's Ambulance being called by bystanders.
It is submitted that this entry in the medical records is the most precise description of the accident which unequivocally attributes the speed of 50 km per hour to the cyclist.[122] It is submitted that this information could only have been obtained from Mr Hill at the time the note was made, that is on 13 May. The information could not have been carried through from former entries in the medical records because the information noted is more detailed and reflects information which was not previously recorded.
[122] ts 290.
It could not, it is submitted, have been taken from the nursing triage notes because those notes do not refer to a speed of 50 km per hour. Rather, they refer to a speed of 20 km per hour. Nor could the entries have been taken from the earlier notes of Dr Murphy in the emergency department because those notes do not, on their face, suggest it was the cyclist rather than the car travelling at 50 km per hour.[123] There is nothing, it is submitted, recorded in the earlier notes from which the compiler of the notes on 13 May could have concluded Mr Hill was cycling at 50 km per hour.
[123] ts 290.
Although it is not clear to me (because of the illegibility of the handwriting), the entry does record a speed of 50 km per hour, because no issue is taken by the plaintiff that it is a reference to a speed of 50 km per hour I proceed on the basis that that is the speed referred to. However, I am not persuaded that the information recorded was taken directly from Mr Hill on 13 May. I am not persuaded it is a contemporaneous record of something said by Mr Hill.
As I have earlier observed, the first entry is headed 'ICU admission notes'. It is unclear whether the medical record is the commencement of the notes taken in the ICU or whether it is a reference to an earlier entry in the ICU admission notes. From Dr Murphy's emergency department continuation notes made on 12 May at 17.20, the cardiothoracic review of Mr Hill was undertaken while he was still in the emergency department and before he was admitted to ICU. From the ICU flow chart[124] the admission date into ICU is recorded as 12 May which is also recorded as the date on which the entries are made. The chart records that Mr Hill was in ICU for one day. The chart records that the observations of Mr Hill commenced after 22.00 hours. In the section headed 'Diagnosis' is an entry 'cyclist vs car (50k/hour)'. That is a similar entry to the entry in Dr Murphy's notes during his review of Mr Hill earlier that day. Presumably, when Mr Hill was admitted to ICU, the medical professionals in ICU had access to Dr Murphy's notes and observations made in the emergency department. It is likely the admitting doctors and nurses would have referred to and read Dr Murphy's report.
[124] Exhibit 1.16
In my view it is also likely the entry in the ICU flow chart was taken from Dr Murphy's notes. Further, it is probable that the entry in the ICU admissions notes on 13 May were taken from, or carried across, from the flow chart given the reference to 'ICU admission notes'. No other records were identified as being the 'ICU admission notes'. There would not seem to be any reason why a further history would again need to be taken from Mr Hill on 13 May when he was then in the ICU. In my view it makes sense, and is consistent with, the chronology of the medical records. The 13 May notes are consistent with the ICU flow chart notes which in turn are consistent with Dr Murphy's notes. They reflect an interpretation by the author of earlier notes. In my view the history recorded in the inpatient notes on 13 May is likely to have been taken from earlier notes, most probably originating in the history recorded by Dr Murphy.
Therefore the entries on 13 May do not add to or reinforce the cogency of the evidence of whether Mr Hill said he was cycling at a speed of 50 km per hour as he entered the roundabout. If the initial information recorded by Dr Murphy is unreliable or imprecise, the entries on 13 May cannot lead to a finding that a reference to a speed of 50 km per hour in the 13 May entries is reliable and cogent. Indeed, if, as I think is probably the position, the 13 May entry is the author's interpretation of earlier notes, without further confirmation or explanation being sought directly from Mr Hill, the accuracy of the recorded information is more unreliable.
Having been assessed by the cardiothoracic surgical registrar Dr Murphy in the emergency department on 12 May 2013, who admitted Mr Hill under cardiothoracic surgical observation to the HDU depending on the outcome of the CT scans, there was no need for a history to again be taken from Mr Hill as to the circumstances of the accident. By 13 May Mr Hill had been admitted to hospital for a day. The focus of the doctors and nurses would have been to properly diagnose the nature and extent of the injuries suffered by Mr Hill and determine the appropriate investigations to be undertaken and the treatment to be provided. To again take a history from him as to exactly how the collision happened and whether it was he who was riding at 50 km per hour or whether it was the car which was travelling at 50 km per hour would not have advanced anything.
It is also unclear whether the notes were taken by a doctor or a nurse and for what purpose. It seems to me likely that once he had been admitted to hospital it was necessary to continue the initial history taken through to the records in the particular unit of the hospital to which Mr Hill had been admitted. There would have been more pressing matters for the medical professionals to be concerned with than taking a further history from Mr Hill of the circumstances of the collision.
The defendant submits that the notes were likely made by a doctor because of the subsequent detail recorded, particularly under the heading 'O/E [observations under examination]'. I accept that given the detailed nature of the information recorded over the four pages, which appear to be in the same handwriting, the notes are more likely to have been recorded by a doctor than a nurse. However, the time at which the notes were made and the observations taken is unclear. In particular it is unclear when the entries were made in relation to the entries made on the same day at 8.30 am by Mr Passage and his team and by Registrar Dr Pradhan at 8.58 am.
The defendant concedes that the further references in the medical records to speed are likely to be entries which have been carried through from earlier entries.[125] In my view that is a proper concession.
[125] ts 295.
The entry made by Registrar Dr S Pradhan on 13 May at 0858 hours records a history of 'bicyclist hit by car approximately 50km/hr'. In my view that history is most likely to have been taken from earlier entries in the medical records and is not a fresh history taken from Mr Hill. The entry is under a heading 'trauma services r/v' and a further heading 'hx [history] noted'. In my view that entry is likely to have been taken from Dr Murphy's notes. There is nothing to suggest that the other entry on the inpatient notes on 13 May was not also taken and recorded in the same way, that is, from the initial history taken by Dr Murphy.
The further entry in the inpatient notes on 13 May is headed 'ICU review'. It is unclear when, in relation to the reviews by Mr Passage at 8.30 and the surgical registrar, Dr Pradhan, at 8.58, the review was undertaken. It seems, from the reference to 'ICU SR' that the review was undertaken by a surgical registrar. The entry refers to day one post‑trauma of a pushbike verse car 'high speed'. There was the further entry to 'no loc [loss of consciousness]'. Again it is unclear whether the reference to 'high speed' is a reference to the speed of the pushbike or the speed of the car. It is the only reference to 'high speed'. In my view the expression 'high speed' is more likely to reflect a value judgment of the author from reading previous entries in the medical records than a note recording a conversation with Mr Hill. The defendant does not submit otherwise. It is unclear whether the history recorded was taken from Dr Murphy's notes or from the entry in the inpatient notes on 13 May under the heading 'ICU admission notes'. As I say, it is unclear whether the review occurred after the reviews by Mr Passage and Dr Pradhan. The history may have been taken from the history recorded in the ICU flowchart. The position is most unclear. However, what is clear is that on each occasion where the history is recorded by a different author, the history is recorded differently. Sometimes Mr Hill is referred to as the cyclist and at another time a bicyclist. The entries refer to cyclist verse car, pushbike verse car accident, car verses bike, bike verses car accident, pushbike verses car, car verses pushbike.
The defendant bears the onus of satisfying me on the balance of probabilities that from the medical records, essentially the entry on 13 May in the ICU admission notes, and from other evidence, principally the eye witnesses to the accident, that Mr Hill was riding his bike at 50 km per hour when he entered the roundabout. Essentially, senior counsel for the defendant submits I should accept the hospital's medical records as reliable evidence, and indeed the most reliable evidence, concerning Mr Hill's speed at the time he entered the roundabout. It is submitted the medical records are contemporaneous records of Mr Hill's own estimation of the speed at which he was travelling. They were made by professional people trained to take accurate notes for the purpose of medical diagnosis, that is doctors or nurses. Further, they were not made out of self‑interest for the purposes of litigation or with hindsight, but for the purpose of disinterestedly progressively recording what was happening during the plaintiff's stay in hospital.
While I accept the medical records were compiled by doctors and nurses who were likely to have experience in taking a history of how injuries were suffered and they would do so in a professional and a disinterested way, I do not accept, particularly in circumstances where the authors of the notes have not given evidence about the how the notes were taken and whether they recorded information obtained directly from Mr Hill or simply repeated or summarised earlier information in the medical records, they are a reliable account of the speed at which Mr Hill was travelling, or believed he was travelling, when he entered the roundabout. The doctors' (or nurses') focus would no doubt have been on diagnosing Mr Hill's injuries as quickly as possible to be able to make decisions as to what medical investigations needed to be undertaken and what treatment should be provided. While it was important to obtain a brief history of what happened, the doctors' focus would not have been on the precise circumstances of the collision or obtaining full details of the circumstances, including the speeds at which the bicycle and the car were travelling. They would only have needed to obtain the briefest details to enable them to properly diagnose the nature of Mr Hill's injuries and, perhaps, to understand what sort of force was involved in the collision and the mechanics of how the injuries were caused. Whether Mr Hill was riding his bike at 50, 40, 30 or 20 km per hour when the collision occurred is unlikely to have made much difference to the doctors' assessment of Mr Hill. It is likely the details would have been taken from Mr Hill very quickly while he was undergoing assessment. It is known from Senior Constable Patten's brief conversation with Mr Hill that he was wearing an oxygen mask while he was in the emergency department and an intercostal catheter had been inserted. While I accept it was necessary for a proper understanding of how the injuries were caused to obtain details of the collision, it is likely those details would have been taken very quickly and the major focus would have been on assessing as quickly as possible the nature of the injuries suffered by Mr Hill, what medical investigations needed to be undertaken and what treatment should be provided.
It is also unclear whether the notes were being made at the time the doctors (or the nurses) were speaking with Mr Hill, or whether they were made afterwards once the doctor had completed his or her assessment of Mr Hill. For example, it is not known whether Dr Murphy, or the author of the ICU admissions notes, was making the entries in the medical records while speaking with Mr Hill. Given the detailed nature of the entries it seems to me it is likely that at least some of the entries would have been recorded as Mr Hill was being examined. However, there is no viva voce evidence which might have clarified the position.
The defendant concedes that the entry in the inpatient notes on 14 May 2013 referring to the cardiothoracic HDU notes at 12.20 stating 'Admitted 2 days ago after car vs pushbike accident @ 50 kmph' is an entry which has been carried through or taken from earlier medical records and does not record a further history taken from Mr Hill. In my view that concession is properly made. It accords with my own view. The first page of the notes goes onto record Mr Hill's injuries in the following terms:
Injuries
1.# [fractured] ribs left and right side 4 – 7 (flail segment L [left]) 4-9
2.Bilateral pneumothoraces
3.Bilateral pulmonary contusions
4.# [fractured] sternum
5.Abrasions to face. R shoulder L chest wall.
The notes then go onto record under the heading 'Issues in ICU' various matters. The commencement of the next page of the notes under the heading 'O/E [observations under examination]' records that Mr Hill 'looks well – alert'.
In my view the first page of those notes which record Mr Hill's admission to the HDU record information taken from earlier medical records. The observations under examination, which commence on the second page of the notes, likely record the admitting doctor's examination findings in the HDU.
Comparing the HDU admission notes to the ICU admission notes on 13 May further supports my view that the ICU admissions notes were compiled from information earlier recorded and were not compiled as a result of a fresh history taken from Mr Hill upon his admission to ICU. Although I accept the details of the accident recorded in the ICU admission notes are more expansive than that recorded in the HDU admission notes on 14 May, the information is similar. Each record a speed of 50 km per hour. The initial entry in the emergency department notes on 12 May at 17.20 also records a speed of 50 km per hour. In my view, just as the details regarding the nature of the accident and the speed recorded in the HDU admission notes have been compiled from earlier entries in the medical records, it is probable information recorded in the ICU admission notes are also compiled from entries in earlier medical records. From the entry in the ICU notes immediately following the recording of the details of the accident, which commence 'in ED' and then record various findings and go onto to refer to results of the CT performed to the head, spine and chest, it is clear the author of the notes had access to and was referring to the emergency department medical notes before then, on the second page of the notes, recording his or her observations upon examination.
At the very least I am not persuaded that it is so clear that the ICU admission notes of 13 May 2013 record a fresh history taken from Mr Hill. Having regard to the onus of proof being on the defendant I am not satisfied that it is more probable than not that the ICU admission notes record a contemporaneous statement by Mr Hill that he was cycling at a speed of 50 km per hour at the roundabout when the accident occurred.
Further, and perhaps more fundamentally, even if I accepted that the medical notes did accurately record that Mr Hill had told the doctors that he was riding his bike at 50 km per hour, I am not persuaded, that in the circumstances Mr Hill faced, his estimation of his speed was reliable. He was initially admitted to the Emergency Department of SCGH. Later he was transferred to the ICU and later still, to the HDU. It is not in the dispute he was suffering extremely serious injuries, injuries which later led to his death. He would have been in significant pain. That is confirmed by the references to analgesia being administered which Mr Hill was able to self‑control. He was wearing an oxygen mask. He therefore had difficulty breathing. An intercostal catheter had been inserted. Mr Hill had been knocked from his bike up onto the bonnet of the defendant's car and then fell onto the ground. He had difficulty breathing at the scene.[126] He remembered thinking he might die at the scene.[127] Clearly, the circumstances for Mr Hill would have been traumatic, distressing and confronting.
[126] Par 20 Mr Hill's statement, exhibit 1.4.
[127] Par 22 Mr Hill's statement, exhibit 1.4.
Given those circumstances, I do not accept that if Mr Hill did give an estimation of the speed at which he thought he was travelling it was a reliable estimation. He was not in a position of being able to calmly consider and reflect upon the circumstances of the collision and at what speed he had been riding his bicycle. It is unlikely, given the circumstances, that Mr Hill would have been greatly concerned about giving an accurate estimation of the speed at which he was riding his bicycle. There were other more pressing matters at the forefront of his mind. How serious were his injuries. What was going to happen to him. The need to inform his family.
It is also likely Mr Hill was experiencing some degree of confusion. He would have been anxious. The references in the medical records to Mr Hill being alert and orientated and speaking in sentences does not much assist the defendant. It is one thing to record from a medical point of view a patient is alert and orientated. It is another thing altogether to conclude that a person admitted to an emergency department of a hospital after a traumatic collision, suffering significant injuries and requiring oxygen to properly breathe and with an intercostal catheter inserted, would have calmly and dispassionately considered, and sensibly and reliably assessed, the speed at which he was riding his bike.
The defendant also points to the evidence of Senior Constable Patten who visited Mr Hill in the emergency department about two or three hours after the collision, and assessed Mr Hill as being fully coherent and lucid. Senior Constable Patten made that assessment on the basis of three questions he asked of Mr Hill in a 3 ‑ 4 minute conversation when Mr Hill was cut off mid‑sentence because his oxygen levels had dropped and a nurse ordered him to put his oxygen mask back on. I do not accept that in those circumstances and in that very brief conversation, part of which was taken up with writing notes, Senior Constable Patten was able to make any proper or sensible assessment of Mr Hill's coherence or lucidity. I place little weight on Senior Constable Patten's evidence in that regard.
However, I do accept Senior Constable Patten's evidence that Mr Hill said he was going fast for a pushbike. That is confirmed by Mr Hill himself in his unsigned police statement in which Mr Hill said he 'was probably going quite quickly for a pushbike'.[128] What Mr Hill said in his police statement is consistent with what Senior Constable Patten said he told him. It supports Mr Hill's credibility.
[128] Exhibit 1.4, par 15.
In summary, the defendant has not satisfied me on the balance of probabilities that the medical records are a reliable record that Mr Hill said he was riding his bike at 50 km per hour. Even if I was to accept the medical records do reliably record what a doctor or nurse was told by Mr Hill of what he believed was his speed at the time of the collision, I am not satisfied Mr Hill's estimation of his speed given in the emergency department or the ICU of SCGH was a reliable estimation of his speed. I am not prepared to find, based upon the entries in the medical records, that Mr Hill was riding his bicycle at 50 km per hour.
Mr Hill's evidence as to his speed
As I have earlier noted, in his unsigned police statement Mr Hill said he thought he was travelling at approximately 25 - 30 km per hour. He said 'I guess I was travelling around 25 – 30 kph'[129] and later said 'I was probably going quite quickly for a pushbike, somewhere between 25 – 30 kph' (emphasis added).[130] That statement was taken by Senior Constable Bedworth on 15 May when Mr Hill was then in the HDU.[131]
[129] Exhibit 1.4, par 8.
[130] Exhibit 1.4, par 15.
[131] Exhibit 2, Senior Constable Bedworth's handwritten notes of the interview.
By then Mr Hill's condition had stabilised compared to his condition in the emergency department and the ICU. When Mr Hill sent an email to Senior Constable Bedworth on 21 May, advising the contents of the statement were 'fine, actually pretty accurate' subject to updating Mr Hill's transfer from ICU to HDU, Mr Hill was at home. Mr Hill referred to 'the dire warnings' he had received about the time it would take him to recover and that it certainly would not be quick.
In my view Mr Hill's estimation of travelling at a speed of 25 ‑ 30 km per hour made on 15 May and confirmed on 21 May, was a more reliable estimation of his speed than any estimation he may have given to a doctor or nurse in the Emergency Department or ICU of SCGH, even though such an estimation was given closer in time to when the collision occurred. I have already explained why I do not accept that if Mr Hill did provide an estimation of his speed to doctors at the hospital it was a reliable estimation. In my view, by the time Mr Hill was interviewed in the HDU on 15 May his condition had stabilised (relatively to the time of admission) and he was no longer experienced the immediate aftermath of the collision. He was not confronted with the distressing and traumatic circumstances of being admitted to the emergency department with severe injuries. He was then better able to calmly, sensibly and reliably think about and remember at what speed he estimated he was travelling. Although statements made some time after an incident has occurred are often regarded as less reliable than those made contemporaneously with, or closer in time to, the occurrence of an incident, I am satisfied in this case, for the reasons I have given, that Mr Hill's estimation of his speed given to Senior Constable Bedworth is more reliable than any estimation of speed he may have given to a doctor or nurse in the emergency department or the ICU of SCGH.
I am supported in that conclusion by the evidence of Mr Maddison. Mr Maddison is the only witness who was able to provide an estimation of speed. He estimated Mr Hill was travelling at 15 ‑ 20 km per hour. He was not sure whether Mr Hill was peddling or free‑wheeling but thought he was coming at speed. He only saw the cyclist before he collided with the defendant's car for about 2 ‑ 3 seconds and over a distance of about 25 m, which I accept is a very brief period of time and a short distance.
While I accept that people's estimations as to both speed and time are notoriously unreliable, and while I also accept that Mr Maddison only had a brief period of time in which to make his assessment as to Mr Hill's speed, I am satisfied he was in the best position to make the most reliable estimation of the speed at which Mr Hill was riding his bike. The upper range of his estimate of 20 km per hour broadly accords with the lower range of Mr Hill's assessment of 25 km per hour. Mr Maddison's assessment of speed is certainly far more consistent with Mr Hill's estimation of a speed than to an estimation of speed of 50 km per hour. It supports my finding that if Mr Hill did give an estimation of speed of 50 km per hour to medical staff at the hospital, it was an unreliable estimation. It is unlikely Mr Maddison, who was called by the defendant, would have estimated the speed at 15 – 20 km per hour if Mr Hill's speed was more than twice that, or three times greater than the lower estimation of speed.
Neither the defendant, Ms Joyce, nor Mr Maddison's passenger Ms Staszewski, were able to give an estimation as to the speed at which Mr Hill was travelling. Ms Joyce because she only saw Mr Hill just before, if not as, the collision occurred.
I then turn to consider whether I can make any finding on the balance of probabilities as to the speed at which Mr Hill was riding his bicycle.
As I have earlier outlined, in his unsigned police statement Mr Hill stated that 'I guess I was travelling around 25 – 30 kph' (emphasis added)[132] and that 'I was probably going quite quickly for a pushbike, somewhere between 25 – 30 kph'.
[132] Exhibit 1.4, par 8 - Mr Hill's unsigned police statement.
Senior Counsel for the defendant submitted that Mr Hill was the person who was best positioned to make an accurate estimation of the speed at which he was cycling.[133] I do not accept the submission. A person's estimation as to the speed at which they were travelling is likely to be more accurate and reliable if their bicycle was fitted with a speedometer. There is no evidence Mr Hill's bicycle was fitted with a speedometer.
[133] ts 257.
Also if there was evidence of a person's cycling experience and the type of speeds they routinely travelled at, that might give weight to a person's estimation of the speed at which they were travelling. In his unsigned statement Mr Hill said he has ridden his pushbike between 10 – 15 years but no more than once a week. That suggests to me Mr Hill was a recreational cyclist. He was not a serious or expert cyclist. He was wearing shorts and a t-shirt, not lycra. He was wearing joggers not clip on cycling shoes.[134] He was riding a pushbike not a racing bike.[135] Although perhaps little can be drawn from the fact that Mr Hill was not dressed in lycra or wearing cycling shoes it adds to the impression he was not a serious cyclist.
[134] ts 139 – Mr Maddison.
[135] ts 115 - Senior Constable Patten.
Mr Hill described his bicycle as a pushbike. There is no evidence as to the type of bicycle he was riding. The evidence is that it was not a racing bike.[136] The description of the bicycle as a pushbike reinforces the impression that Mr Hill was an occasional, although regular, recreational cyclist and not a person who was a dedicated and serious cyclist riding a racing bike and more likely to be riding at a higher speed.
[136] ts 115 – Senior Constable Patten.
There is no evidence, such as expert evidence, which might have explained how quickly Mr Hill's bicycle could be ridden. There is no evidence of the incline of Broome Street towards the roundabout along which Mr Hill was riding and what, if any, impact the road incline could have had on the speed at which the bicycle could be ridden.
I raise these matters, not to speculate about matters which are not in evidence, but to emphasise that it is the defendant who bears the onus of proof in satisfying me on the balance of probabilities that Mr Hill was contributorily negligent in causing the accident because he was riding his bicycle at an unsafe speed.
I have already found that I do not accept from the entries in the medical records that Mr Hill told the medical professionals he had been riding his bicycle at 50 km per hour and from which I can find he was travelling at 50 km per hour. I have also found that even if the medical records do accurately record what Mr Hill told the medical professionals as to his speed, that was not a reliable estimation. In my view, although the estimation as to speed made by Mr Hill in the police statement, which was taken from him by Senior Constable Bedworth when Mr Hill was then in the HDU, and which was later confirmed as accurate by Mr Hill when he was then at his home, and after Mr Hill had time to reflect on the circumstances of the accident and not be distracted by and focused on the sudden and traumatic circumstances of the accident and the significant injuries suffered by him, is more likely to be accurate than any estimation given in the immediate aftermath of the accident when he was either in the emergency department or the ICU, I do not accept it is a reliable estimation as to the speed at which Mr Hill was riding his bicycle. Although I accept Mr Hill would have been doing his best to provide an accurate estimation I do not accept, because of those matters to which I have referred, that it was a reliable estimation.
Further, from Mr Hill's use of the words 'guess' or 'probably' it is clear he was uncertain of what his speed was.
Mr Hill acknowledges in his statement that he was 'probably going quite quickly for a pushbike'[137] before he then provides an estimation of speed of 25 – 30 km per hour. Without knowing the speed at which Mr Hill regularly rode his bicycle the expression 'going quite quickly' carries little or limited weight. If a cyclist regularly travels at 10 – 15 km per hour, travelling at 20 km per hour could seem to be 'going quite quickly'. The subsequent reference to a speed between 25 – 30 km per hour does not give any added weight to the expression 'going quite quickly' without knowing the speed at which Mr Hill regularly rode his bicycle and the reliability of his estimation of his speed.
[137] Exhibit 1.4, par 15.
The defendant refers to Mr Hill's description in par 12 of his statement in which he says he was 'trying to moderate my speed so that I didn't have to stop'. The defendant submits I should find that Mr Hill meant he was trying to 'increase his speed so he didn't have to stop'. I reject that submission. In my view, when Mr Hill described trying to moderate his speed he meant he was adjusting his speed as he prepared to merge with the traffic in the roundabout so he did not have to stop. Earlier in his statement he refers to seeing Ms Joyce's vehicle (the defendant's vehicle) and then focusing on the vehicles travelling from his right because they had priority over himself when entering the roundabout. Mr Hill goes on to say 'I entered the roundabout after the cars had passed in front of me.'[138]
[138] Exhibit 1.4.
The defendant submits that there is no evidence which confirms that Mr Hill entered the roundabout after cars to his right had passed in front of him and that he was wrong about that. I accept that submission. It reinforces my view that Mr Hill's memory of all of the circumstances leading up to the accident is not necessarily that reliable, which is understandable given the sudden and traumatic nature of the accident and the significant injuries suffered by him. It reinforces my view that his estimation of his own speed is not reliable.
However, by saying that he entered the roundabout after the cars had passed in front of him gives greater weight to my finding, that when he refers to trying to moderate his speed he was adjusting his speed by reference to the cars on his right, having regard to the need to give way to them and not wanting to stop at the roundabout. In those circumstances the reference to trying to moderate speed means to adjust his speed by reducing his speed.
Senior counsel for the defendant submitted that because par 14 of the statement is wrong, Mr Hill, when he gave the statement to a police officer, was conscious that he was providing the statement for legal reasons, for both the purpose of the police investigation into the circumstances of the accident and whether there might be any potential criminal action taken against the driver, but also for reasons of compensation. Initially senior counsel said that he was not suggesting Mr Hill was trying to engage in some form of outright deception, but there was an inherent bias in favour of 'effectively, massaging the position, down from 50 km per hour to 25 – 30 km per hour.'[139] It was submitted that par 14 was intended to convey the impression that Mr Hill had slowed down because there was a tendency on his part to reduce his culpability by reducing his estimation of speed from 50 km per hour to 25 – 30 km per hour.[140] It was an unconscious bias giving effect to self‑interest, that being an interest in claiming compensation for the injuries suffered in the accident.[141]
[139] ts 304 – 305.
[140] ts 305.
[141] ts 306 - 307.
Senior counsel later explained his submission in the following terms:[142]
[142] ts 307.
HERRON DCJ: … You're suggesting there's a motivation for him to deliberately change his estimation of speed.
CUERDEN, MR: Of course. Of course there's motivation. Because at the time he approved this statement, Mr Hill obviously, didn't expect that he wouldn't be alive to make a claim for compensation.
HERRON DCJ: It seems to me, it would have been the furtherest thing from his mind in the circumstances in which he made this statement.
CUERDEN, MR: Well, that's with respect
HERRON DCJ: He's been approached by a police officer inquiring into the circumstances of an accident, to see whether or not criminal charges might be pursued. That's the only reason he was being spoken to by a police officer.
CUERDEN, MR: Yes, but inquiring into an accident in which Mr Hill has been - as your Honour has said
HERRON DCJ: Yes.
CUERDEN, MR: - - - several times, seriously injured, in which Mr Hill was well aware that - and this is – as I say, this is days after the accident – well aware that there would be a possibility of a claim for compensation being made.
I mean it's with respect unimaginable that a person injured in this way being hit by a motor vehicle would - would not have been thinking
HERRON DCJ: I'd be - I'd be surprised if it was a thing he was thinking about it or he had more on his mind, I'm sure, than whether or not he was going to pursue a claim for damages.
CUERDEN, MR: Former lawyer, former partner of Keall Brinsden, former partner of - former managing partner Keall Brinsden three days after being seriously injured in a motor vehicle accident if your Honour is suggesting to me that it had not crossed his mind that he might have a claim for compensation with the greatest of respect I would say that is unreasonable.
(emphasis added)
I reject that submission. It is without merit. Essentially it is submitted that Mr Hill deliberately made a false statement to police for the purpose of downplaying any culpability he might have had in the accident and also for the purpose of maximising a claim for damages for the injuries suffered by him. Precisely for the reasons outlined by senior counsel regarding Mr Hill's legal background, I am satisfied he was more likely to have been concerned to have ensured the contents of the statement were as accurate as possible. When Mr Hill was interviewed by Senior Constable Bedworth he was in the HDU. When he sent the email to Senior Constable Bedworth on 21 May he was at home but clearly still suffering from the impact of the significant injuries suffered by him given his reference in the email to 'the dire warnings I had been receiving about the time it will take to recover may be roughly right, it certainly isn't quick.' His ability to claim compensation is likely to have been the furthest thing from his mind at the time. It may be he was concerned about the welfare of Ms Joyce, the 'youngish woman' he remembered her saying to him she was sorry[143] who was herself traumatised by what had happened.[144]
[143] Exhibit 1.4, par 23.
[144] ts 87.
I accept that when Mr Hill was interviewed by a police officer he would have been aware the statement was being taken for the purpose of a police investigation into the circumstances of the accident, given Mr Hill had suffered serious injuries in the accident. However, there is no reason to believe he would have turned his mind to the possibility of claiming damages and with that in mind intentionally misrepresented the speed at which he was riding the bicycle and his manner of entering the intersection, motivated by a desire to claim damages. In my view his statement is to the contrary. Mr Hill accepts that he was 'going quite quickly for a pushbike.' If he was motivated to make a false statement for the purpose of claiming damages he would not have said that. Nor would he have estimated his speed at 25 – 30 km per hour. He would have estimated the speed at much less than that. Except for saying he could not breathe and he was bleeding, and being concerned that he might die at the scene, the statement contains no references to the injuries suffered by him. Nor does the email of 21 May. The email only sought to update the information regarding Mr Hill's movement within hospital and then his discharge from hospital on 18 May.
In my view, the statement reflects someone trying to do their best to recall their movements immediately preceding an accident in which they suffered serious injuries. No adverse inference, and certainly no inference or finding of improper purpose, can be made from a reading of the statement.
Turning then to Mr Maddison's evidence of his estimation of the speed at which Mr Hill was riding his bicycle. At [116] – [117] I have earlier considered Mr Maddison estimation of Mr Hill's speed. In my view Mr Maddison, notwithstanding the brief period of time in which he observed Mr Hill's bicycle, was in the best position to assess the movement of Mr Hill's bicycle and the speed at which he was travelling. He was approaching the roundabout travelling in a westerly direction, that is, in the opposite direction to Ms Joyce. Mr Hill was approaching the roundabout from Mr Maddison's left. I accept Mr Maddison's evidence that just after he entered the roundabout and before he reached the intersection with Eric Street he saw Mr Hill when Mr Hill was about 5 m back from the give way sign facing him. He described the bicycle as having 'shot across in front or went across in front of my vehicle.'[145] He estimated the speed of the bicycle to be 15 – 20 km per hour.[146] From the time he first saw the cyclist to the point of the collision was, Mr Maddison estimated, may be 2 – 3 seconds.[147]
[145] ts 122.
[146] ts 123.
[147] ts 136.
As I have said, I accept that it is notoriously difficult to estimate the speed at which another object or vehicle is travelling, particularly when the observation as to speed occurs in a brief period of time. Having regard to that reservation, I am satisfied Mr Maddison's estimation of the speed at which Mr Hill was riding his bicycle is the most reliable estimation as to speed. It is a more reliable estimation than Mr Hill's own estimation as to his speed.
Further, his estimation of the upper range of 20 km per hour is not dissimilar to Mr Hill's estimation at the lower speed of 25 km per hour.
Without wanting to disparage any 63‑year-old male recreational cyclists riding on their pushbike once a week, I think a speed of 15 km per hour reflects a speed which could be realistically achieved by such a cyclist. A speed of 20 km per hour would certainly be 'going quite quickly for a pushbike'.
I find that Mr Hill was probably travelling at a speed of approximately 15 km per hour as he entered the roundabout and no more than 20 km per hour.
Was Mr Hill's manner of driving negligent?
The law
It is appropriate to first set out the legal principles which guide me in the assessment of whether there is any contributory negligence.
Section 5K of the Civil Liability Act 2002 (WA) (CLA) provides:
5K. Standard of contributory negligence
(1)The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2)For that purpose -
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time.
Section 5B of the CLA also provides:
5B.General principles
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
Section 5B relates to breach of a duty of care and does not modify or supplant common law principles which determine whether a duty of care exists or not.[148]
[148] O'Connor v Insurance Commission of Western Australia [2016] WASCA 95 [69] (Buss JA with McLure P & Mazza JA agreeing).
Section 4(1) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) provides:
4. Contributory negligence, court may reduce plaintiff's damages
(1)Whenever in any claim for damages founded on an allegation of negligence the court is satisfied that the defendant was guilty of an act of negligence conducing to the happening of the event which caused the damage then notwithstanding that the plaintiff had the last opportunity of avoiding or could by the exercise of reasonable care, have avoided the consequences of the defendant's act or might otherwise be held guilty of contributory negligence, the defendant shall not for that reason be entitled to judgment, but the court shall reduce the damages which would be recoverable by the plaintiff if the happening of the event which caused the damage had been solely due to the negligence of the defendant to such extent as the court thinks just in accordance with the degree of negligence attributable to the plaintiff.
The Court of Appeal in Apostolic Church Australia Limited v Dixon [2018] WASCA 146 [70], [71] explained the principles regarding the assessment of apportionment of liability and the making of a finding of contributory negligence:
70.The making of a finding of contributory negligence involves a comparison of both the culpability, that is, of the degree of departure from the standard of care of the reasonable person, and the relevant importance of the acts in causing the damage, of the parties. It is the 'whole conduct' of each party in relation to the circumstances of the accident which must be subjected to comparative examination: Podrebersek v Australian Iron and Steel Pty Ltd.
71.In Astley v Austrust Ltd, Gleeson CJ, McHugh, Gummow and Hayne JJ said:
A finding of contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases the nature of that duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of the many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property.
In O'Connor v Insurance Commission of Western Australia Buss JA (McLure P & Mazza JA agreeing) said [66]:
In my opinion, the appropriate apportionment in a particular case between a negligent driver and a contributorily negligent pedestrian will depend on the facts and circumstances of the case; in particular, the whole conduct of the driver and the pedestrian in relation to the accident and a comparative examination of each party's conduct, including the relative importance of each party's conduct, in causing the damage. This task involves findings of fact, the evaluation of conduct and the making of a value judgment based on those matters and the circumstances as a whole. The fact that, in a particular case, the pedestrian's conduct, although involving contributory negligence, did not endanger the negligent driver or anyone else is ordinarily a relevant factor to be taken into account in determining the appropriate apportionment. However, the significance of that factor, and the weight to be given to it, will no doubt vary from case to case. See Pennington (16); Smith [13]; Marien v Gardiner [2013] NSWCA 396; (2013) 66 MVR 1 [49].
Transposing the reference to pedestrian to cyclist, I have regard to those observations in determining whether Mr Hill was contributorily negligent.
Therefore, I am required to compare the culpability of each of Ms Joyce and Mr Hill in causing the collision between the motor vehicle and the bicycle, having regard to the whole conduct of each of them, as the driver of a motor vehicle and the rider of a bicycle, in relation to the circumstances of the collision.
Findings regarding negligence
I then proceed to determine whether at a speed of 15 – 20 km per hour, having regard to all of the surrounding circumstances, Mr Hill's manner of riding his bike was negligent and contributed to the cause of the accident. In determining that issue there are three aspects of the evidence which are particularly important.
The first is the way in which Ms Joyce approached the roundabout and where she was in relation to the roundabout when Mr Hill first saw her. In his statement Mr Hill said:[149]
10.I think there may have been a car approaching the roundabout from the opposite direction to mine along Broome Street.
11.I also remember noticing a car going very slow, or even possibly stopped, at the intersection of the roundabout on Eric Street travelling in an easterly direction.
[149] Mr Hill's unsigned police statement, pars 10 and 11.
He further said:[150]
As I was watching the traffic to my right, I wasn't paying particular attention to the vehicle to my left, as I assumed that it would give way to me.
[150] Mr Hill's unsigned police statement, par 13.
Mr Hill's memory of how Ms Joyce approached the intersection is confirmed by her own evidence. I accept her evidence that as she approached the roundabout she slowed almost to a stop.
In those circumstances Mr Hill, taking reasonable care for his own safety, was entitled to assume that Ms Joyce had seen him and was either stopped at the give way sign or was stopping at the give way sign to allow him to ride through the roundabout. As he was required to do, Mr Hill's attention was then on Mr Maddison and traffic entering the roundabout from Mr Hill's right to which Mr Hill was required to give way. He was moderating, or adjusting, his speed to allow him to give way to the traffic he observed on his right.
Secondly, it is necessary to consider where Mr Hill was when Ms Joyce entered into the roundabout.
In his statement Mr Hill said:[151]
16.When I was well into the roundabout, it became clear that the driver of the car to my left was pulling out.
17.I then had to brake very hard to try and slow down.
18.I turned my handlebars in an effort to steer around the car, but it was not effective.
[151] Mr Hill's unsigned police statement, pars 16, 17 and 18.
Ms Joyce said that when she approached the intersection she did not see anything to her right. If she had she would have stopped. She said Broome Street was mostly in shadow from pine trees along the Broome Street verge.[152] She slowed to almost a stop as she approached the roundabout, checked to her right but did not see any movement.[153] She proceeded into the roundabout at about 5 - 10 km per hour. She accelerated into the roundabout in a normal way that a driver would to move forward.[154] She said that about half way through into the roundabout she looked to the right and saw the cyclist and within a few seconds they had collided.[155] She later explained the point of the collision to be towards the middle of the left lane of the Broome Street exit from the roundabout heading north.[156]
[152] ts 87 – 88.
[153] ts 87.
[154] ts 104.
[155] ts 87.
[156] ts 89.
Mr Maddison also described Ms Joyce as moving forward 'very slowly'.[157] At about the time the cyclist cut across in front of him and went to the inside kerb lane, he saw Ms Joyce's vehicle start to enter the intersection.[158]
[157] ts 136.
[158] ts 135.
Ms Joyce's evidence, as is Mr Maddison's, is broadly consistent with Mr Hill's description in his statement. I find that Ms Joyce drove her vehicle into the roundabout after Mr Hill had entered the roundabout. She only saw him virtually at the point of collision. Because she was only travelling slowly, at 5 – 10 km per hour, as she travelled into the roundabout she was able to brake to a stop almost immediately.[159]
[159] ts 87.
Thirdly, I examine whether Mr Hill's manner of riding his bicycle created any dangerous situation for Mr Maddison to whom Mr Hill was required to give way. I consider that issue even though a finding of whether or not Mr Hill is guilty of contributory negligence is only relevant to the cause of the collision between his bicycle and Ms Joyce's vehicle. However, whether Mr Hill's manner of riding had an impact on other traffic immediately preceding the collision is relevant because it is a part of the surrounding circumstances which might inform me as to his manner of riding and whether that is relevant to whether he was riding in a manner which was, having regard to all of the circumstances, negligent by failing to have sufficient regard for his own safety.
Although Mr Maddison described the rider as having 'shot across' in front of his vehicle when he was level with the intersection of Eric Street, there was no suggestion by Mr Maddison, or his passenger Ms Staszewski, Mr Hill's actions caused him to take any sudden evasive action such as by having to urgently brake or swerve. When he first saw him, Mr Maddison saw that the cyclist also looked at him before then cutting across in front of him.
I am satisfied there is nothing in the evidence of Mr Maddison's description of what he observed which leads to a conclusion that Mr Hill entered the roundabout in an unsafe manner or at an unsafe point of time.
From the photograph taken from the ICWA appointed investigator, Mr Anderson, on 18 July 2013, 35 m from the give way sign on the southern side of Broome Street, the first pine tree is approximately 35 m from the southern entrance to the roundabout entering from Broome Street.[160] Therefore even if there was some shade on Broome Street from the pine trees, as Ms Joyce said, there was at least a distance of 35 m to the give way sign at the roundabout facing traffic travelling north on Broome Street in which the road would not have been shaded by pine trees. Had Ms Joyce been keeping a proper lookout when she approached, or was at, the give way sign on Eric Street, she would have seen Mr Hill's bicycle before she entered into the roundabout. Her failure to see Mr Hill was negligent as is accepted by her by the admission of liability. There was no shade for at least 35 m which would have obscured her view of Mr Hill. As I have already found, Mr Hill having seen Ms Joyce approaching the roundabout slowly or having stopped at the give way sign, was entitled to expect that Ms Joyce had seen him and would remain stationary at the give way sign until he had passed through the intersection. Had Ms Joyce seen Mr Hill she would, as she said in her evidence, have stopped. Although Mr Hill was riding quickly for his pushbike he was entitled to ride in such a way as to expect Ms Joyce would remain stationary at the give way sign. He rode in such a way that he did not pose or create a risk of a collision with Mr Maddison's vehicle. Mr Maddison was able to pass through the intersection behind Mr Hill without slowing down, stopping or taking any evasive action. Had Ms Joyce not moved forward into the roundabout Mr Hill would have ridden safely through the roundabout.
[160] Exhibit 1.11, ts 170.
I am not persuaded that his manner of riding his bicycle was in all of those circumstances negligent.
The manner of Mr Hill's riding of his bicycle, and in particular the speed at which he was riding, must be viewed in the context in which he observed Ms Joyce's vehicle. Had he seen Ms Joyce's vehicle approaching the roundabout from a distance travelling at speed, say at 50 km per hour, Mr Hill, in discharge of his duty of care, would have been required to have taken sufficient precautions, such as reducing his speed, until he was able to properly assess the speed of Ms Joyce's vehicle and ensure it was likely to stop at the give way sign. However, in circumstances where he believed, in my view reasonably, Ms Joyce was either slowing down ready to stop at the give way sign, or had stopped, a belief confirmed by Ms Joyce's evidence, Mr Hill, exercising reasonable care for his own safety, was entitled to approach and then proceed into the roundabout in the manner in which he did. In my view he did not approach and enter into the roundabout in such a way that he failed to take reasonable care for his own safety. I do not accept that Mr Hill rode into the roundabout at an unsafe speed. I am satisfied Mr Hill reasonably made the assessment it was safe for him to enter and go through the roundabout without interfering with traffic coming to his right and on the basis that Ms Joyce, who was on his left, was giving way.
I have earlier found at [160] that Ms Joyce drove into the intersection after Mr Hill had entered the intersection. By the time Ms Joyce entered the intersection Mr Hill, as he says, was well into the roundabout. I am satisfied that because of his position in the roundabout when Ms Joyce drove her vehicle into the roundabout there was not sufficient time for Mr Hill to brake or take other evasive action to avoid the collision. I therefore reject the defence submissions as summarised at [8] – [9].
As I have earlier summarised, senior counsel for the defendant was reluctant to say what was an unsafe speed. Both in opening and in closing counsel submitted I did not have to make a definitive finding as to how fast Mr Hill was riding his bicycle in order to find that he was travelling at an excessive speed. It was submitted that whatever the speed was, it was so fast as to be unsafe because it did not allow Mr Hill to react to issues which arose, that is, Ms Joyce entering into the roundabout.[161] It was submitted that because from his own statement Mr Hill was unable to take evasive action to avoid the collision I can draw the inference that he was going too fast.[162] When pressed in closing counsel submitted that a speed of something less than 25 km per hour was a safe speed.[163]
[161] ts 55 – 56, 58.
[162] ts 59.
[163] ts 310.
Counsel submits that because Mr Hill was unable to avoid the collision when Ms Joyce entered the roundabout he was therefore negligent.
Counsel's submissions should not be accepted. They involved, in my respectful view, erroneous reasoning with respect to the assessment of whether there was a breach of duty of care by Mr Hill in that they involve an assessment of the breach retrospectively and not prospectively.
In RTA v Dederer (2007) 234 CLR 330 [18] Gummow J restated the legal principles in determining an action in negligence in the following terms:
… First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt (37).
(emphasis added)
Simply because Mr Hill was unable to avoid the collision it does not follow that he was riding at an excessive speed and was therefore negligent. For the reasons I have already given, I am satisfied Mr Hill's manner of riding, in circumstances where he saw and believed Ms Joyce was coming to a stop, or had stopped, at the give way sign to allow him to cross through the roundabout, was safe. It was reasonable that he believed it was safe for him to enter into the intersection providing he could safely do so having regard to traffic entering the roundabout from his right. Ms Joyce drove into the intersection unexpectedly. Taking reasonable care for his own safety did not require Mr Hill to ride at such a speed, and in such a way, to be able to avoid a collision with Ms Joyce's vehicle if she unexpectedly pulled out into the intersection in front of him. I have found Mr Hill was probably riding his bike at a speed of approximately 15 km per hour and no more than 20 km per hour. In my view that was in all of the circumstances a safe speed to be riding the bicycle when Mr Hill approached and entered the roundabout. A cyclist, taking reasonable care for his own safety, seeing a vehicle stationary at a give way sign, is entitled to enter the intersection in the expectation the driver will comply with the give way sign and not unexpectedly fail to give way and enter into the intersection after the cyclist has entered the intersection.
Causation
Further, I am satisfied that at whatever speed Mr Hill was riding his bicycle, his speed was not causative of the collision. The only cause of the collision was Ms Joyce's failure to see Mr Hill and her entering into the roundabout after Mr Hill had already entered the roundabout. She entered the intersection without seeing Mr Hill. She therefore entered the intersection unexpectedly. In circumstances where Ms Joyce has driven into the intersection immediately in front of Mr Hill's bicycle, at whatever speed he was riding, it is likely Mr Hill would have been unable to avoid the collision. It was reasonable for Mr Hill, having seen Ms Joyce slow down or stop at the give way sign, to approach and enter the roundabout focused on ensuring he was able to safely enter the roundabout by complying with his lawful obligation to give way to traffic entering from his right, which he did, and in the belief Ms Joyce would remain stationary at the give way sign until he had passed through the roundabout. Reasonable care did not require him to reduce his speed or be prepared to be able to stop in the unlikely event Ms Joyce drove into the intersection, from a stationary or nearly stationary position, in front of him without giving way. Reasonable care, in the circumstances which presented themselves to Mr Hill, did not require him to ride his bicycle in that manner.
I am satisfied Mr Hill rode his bike in a safe manner and was entitled to assume it was safe for him to enter the roundabout in the manner in which he did. It was reasonable for him to expect that Ms Joyce had seen him and would not enter into the roundabout until he travelled through it. Taking proper care for his own safety, Mr Hill was not required to expect that Ms Joyce would enter into the roundabout as she did and that he would need to take evasive action to avoid a collision. The speed at which he was riding his bicycle, whatever it was, was not causally relevant to the collision. The sole cause of the collision was Ms Joyce's manner of driving, involving her failure to observe Mr Hill and to drive into the roundabout after Mr Hill had already entered the roundabout.
I find Mr Hill was not contributorily negligent in his manner of riding his bicycle.
It follows that damages are to be awarded to the plaintiff on the basis the defendant is liable for 100% of those damages.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KG
Associate to Judge Herron23 AUGUST 2019
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