Bald v Hesford

[2024] WADC 87

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   BALD -v- HESFORD [2024] WADC 87

CORAM:   TROY DCJ

HEARD:   15 JULY 2024

DELIVERED          :   10 OCTOBER 2024

FILE NO/S:   CIV 2191 of 2022

BETWEEN:   RHYS DONALD BALD

Plaintiff

AND

ANTHONY JOSEPH HESFORD

Defendant

Catchwords:

Road traffic accident - Contributory negligence - Turns on own facts

Legislation:

Nil

Result:

Judgment for the plaintiff apportioned to 20% to him

Representation:

Counsel:

Plaintiff	:	Mr K S Pratt
Defendant	:	Mr P E Jarman

Solicitors:

Plaintiff	:	Separovic Injury Lawyers
Defendant	:	Jarman Legal

Case(s) referred to in decision(s):

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420

Apostolic Church Australia Ltd v Dixon [2018] WASCA 146

Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1

Braund v Henning (1988) 79 ALR 417

British Fame (Owners) v MacGregor (Owners) [1943] AC 197

Calcagno v Dent [2015] NSWDC 308

Cocks v Sheppard (1978) 25 ALR 325

Dent v Calcagno [2016] NSWCA 289

Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217

Edwards v Brennan [2004] SASC 207

Fox v Percy (2003) 214 CLR 118

Gorman v Scofield [2008] WASCA 78

Jones v Dunkel (1959) 101 CLR 298

Manley v Alexander (2005) 223 ALJR 228

Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1

O'Connor v Insurance Commission of Western Australia [2016] WASCA 95

Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492

Richards v Picco [2000] NSWCA 35

State of New South Wales v Fahy (2007) 232 CLR 486

Stephens v Transport Accident Commission [2019] VSCA 234

Taylor v Fisher [2018] WASCA 126

The Council of The Wyong Shire Council v Shirt (1980) 146 CLR 40

The Quadriplegic Centre Board of Management v McMurtrie [2009] WASCA 173

TROY DCJ:

Introduction

1. If a driver on a highway checks his mirror and indicates an intention to turn right approximately 100 m before an intersection, but at the intersection itself he does not make any further lookout, does he breach his duty of care to another vehicle which attempts to overtake him, the driver of that vehicle having failed to see the right‑side indicator?  And if he does, to what extent is the overtaking driver guilty of contributory negligence?  For the reasons to follow, these are the fundamental issues in this case.

2. Early on the afternoon of 19 March 2020 the plaintiff, Mr Rhys Bald was driving his Isuzu D‑Max utility vehicle (the tray top ute) in a southerly direction on the main Coolgardie‑Esperance Highway (the Highway).  Mr Bald had been working at a nearby farm and was making his way towards Esperance along with his then 17‑year‑old passenger, Mr Tahj Hotker.  The weather was good and the relevant stretch of road was straight.[1]  There were no central dividing lines and the maximum speed limit of 110 km per hour applied.

   [1] Statement of Ms Janine Doney tendered as agreed ts 55 - ts 56.

3. As can be seen from the photograph tendered at trial[2] the Highway was bordered on each side by sections of gravel.

[2] Plaintiff's Book of Documents (PBD), page 2.

1. Shortly before the collision which gives rise to this action the defendant, Mr Anthony Hesford, a farmer, drove his vehicle, a prime mover and at least one trailer, (the rig) towards the Highway along a minor road called Brown Road.  Mr Hesford was alone in this vehicle.  Mr Hesford turned left onto the Highway with the intention of taking the next road to the right, a minor road called Rhind Road.  It was an agreed fact that the distance between Brown Road and Rhind Road is 700 m.

2. For the reasons that follow, when Mr Hesford turned left onto the Highway, I find that the tray top ute would have been visible to him at a distance of approximately 2 km to his right; and that, at the same time, the rig would be visible to Mr Bald.  I find that Mr Hesford would have accelerated to a maximum speed of some 70 km per hour before slowing down in order to turn right onto Rhind Road.  I find that at all relevant times Mr Bald's speed was approximately 110 km per hour.

1. It follows that the gap between the two vehicles would have closed appreciably.  A collision occurred when Mr Bald overtook the rig while it was turning right onto Rhind Road.  The left‑hand side of the rear of the tray top ute collided with the right front side of the rig's prime mover as the rig commenced its right‑hand turn.

2. In that collision, Mr Bald suffered significant injuries.  The dispute at trial was confined to liability, quantum having been agreed.

The pleaded cases

1. The particulars of Mr Hesford's alleged negligence are pleaded in the amended statement of claim as follows:

   3.1.Prior to the intersection Mr Hesford reduced speed and drove the rig slowly and partially off the road without applying his lefthand indicator and with the apparent intention of coming to a stop on the side of the road before the intersection;

   3.2.Suddenly and without sufficient warning instead of coming to a stop on the left-hand side of the road, Mr Hesford began to turn the rig right and applied his right-hand indicator very late with inadequate warning to Mr Bald and others using the road;

   3.3.Failed to keep a proper lookout and in particular failed to ensure that no other vehicles were behind the rig and/or in the process of overtaking the rig, before executing a right-hand turn into Rhind Road, particularly when Mr Hesford was aware of the tray top ute behind him;

   3.4.Failed to take evasive action to avoid a collision with the tray top ute;

   3.5.Failed to apply brakes on the prime mover in time to avoid the collision at all; and

   3.6.In the circumstances drove unsafely and without appropriate care and attention.

2. Mr Bald's case is primarily based upon an assertion that Mr Hesford turned right without keeping an adequate lookout, in circumstances where he knew that there was a vehicle approaching at speed from his rear.

3. Mr Hesford denies liability, pleading that the accident occurred entirely due to the negligence of Mr Bald.  Alternatively, that Mr Bald was guilty of contributory negligence to a very significant extent.

4. The particulars of the alleged negligence are pleaded as follows:

   (a)failing to keep left on a marked or unmarked two-way carriageway, contrary to Road Traffic Code 2000 (RTA) r 155;

   (b)overtaking when it was unsafe to do so, contrary to RTA r 121;

   (c)overtaking on the right-hand side, where the rig was making, or apparently about to make, a right-hand turn, contrary to RTA r 122;

   (d)failing to brake sufficiently, or at all, in order to avoid the accident;

   (e)in the circumstances drove unsafely; and/or

   (f)Mr Bald failed to take sufficient, if any, care for his own safety.

5. The main allegation of negligence against Mr Bald is that he overtook Mr Hesford at a time when Mr Hesford was indicating to the right.

The applicable legal principles

1. The principles 'that apply to claims in negligence …' between two motorists are governed by a combination of common law and the Civil Liability Act 2002 (WA) (CLA). The CLA does not modify or supplant the common law principles which determine whether a duty of care exists.[3]

   [3] Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217 [77] (Buss JA) (Smith).

2. I am required to ask myself whether a reasonable person in Mr Hesford's position would have foreseen that his alleged conduct (in not adequately looking or checking for a vehicle behind him before making a right‑hand turn) involved a risk of injury to other road users.  If the answer is 'yes', then I must determine what a reasonable person would do by way of response to that risk.

1. This is the two‑step process drawn from the seminal judgment of Mason J in The Council of The Shire of Wyong v Shirt.[4]

   [4] The Council of TheWyong Shire Council v Shirt (1980) 146 CLR 40, 47 (Wyong Shire Council v Shirt).

2. Mr Bald bears the onus of proving a breach of duty and must prove on the balance of probabilities those matters set out in s 5B(1) of the CLA.

3. Section 5B(1) provides:

   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.

4. Insofar as the requirement that the 'risk of harm' be not 'insignificant', it has been recognised that this imposes a slightly more demanding standard than the common law test.[5]

   [5] Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1 [714] (Newnes & Murphy JA).

5. Foreseeability of the risk of injury and the likelihood of that risk occurring are two different things.  Consequently, reference to a risk of injury as 'foreseeable' is not to be equated with any statement as to the probability or improbability of its occurrence.  By implication, however, a foreseeable risk is not one that is far‑fetched or fanciful.[6]  As a result, the common law test for foreseeability has been described on a number of occasions as 'undemanding'.[7]

   [6] Wyong Shire Council v Shirt (47) (Mason J).

   [7] Taylor v Fisher [2018] WASCA 126 [34] (Martin CJ).

6. If one negligently turns into the path of a vehicle travelling at 110 km per hour the risk is self‑evident.

7. It is well established that one motorist owes another a duty to take reasonable care to avoid reasonably foreseeable risks.

8. For Mr Bald to succeed, he must establish that Mr Hesford breached his duty of care, and in doing so materially contributed to the collision and the resultant injuries and loss.  In the event that Mr Bald succeeds in that regard, the question is whether he himself also breached his duty of care, so that he also materially contributed to the collision so as to be guilty of contributory negligence. In that eventuality, the whole of the conduct of each negligent party in relation to the circumstances of the accident must be subjected to comparative examination so as to arrive at a just and appropriate apportionment.

9. Section 5B(2) of the CLA further provides:

   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.

10. The High Court in State of New South Wales v Fahy[8] reaffirmed the test in Wyong Shire Council v Shirt, whilst stressing the need not to lose sight of the ultimate criterion of reasonableness, or to adopt a mechanistic approach to questions of reasonable foreseeability, risk management or risk avoidance: see also The Quadriplegic Centre Board of Management v McMurtrie.[9]

    [8] State of New South Wales v Fahy (2007) 232 CLR 486 [7], [78], [129] - [133] and [241].

    [9] The Quadriplegic Centre Board of Management v McMurtrie [2009] WASCA 173 [80] (Buss JA).

11. I will move to the authorities that I consider bear most distinctly on the facts of this case later in these reasons, once I have made the necessary findings of fact.

12. In seeking to resolve contested issues of fact, for example did Mr Hesford indicate prior to Mr Bald commencing to overtake him and did Mr Hesford look into his mirrors, I apply the observations of Dixon CJ in the well‑known case of Jones v Dunkel:[10]

    [W]e are not concerned with a choice among rival conjectures.  In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind.  It is true that 'you need only circumstances raising a more probable inference in favour of what is alleged'.  But 'they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture …'  The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.

    [10] Jones v Dunkel (1959) 101 CLR 298, 304 - 305.

13. In a similar vein, in Fox v Percy[11] Gleeson CJ, Gummow and Kirby JJ encouraged trial judges to limit reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.  Their Honours noted that this does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.

    [11] Fox v Percy (2003) 214 CLR 118 [31] - [32].

The fundamental issues

1. Each party devoted a considerable amount of time at the trial, and indeed the subsequent written submissions, to the issue of whether the rig had one trailer, as Mr Hesford contends, or two trailers as Mr Bald contends, (the trailer issue).  The relevance of the trailer issue is, at best, peripheral and I will deal with it at a later stage of these reasons.

2. In closing written submissions, counsel for Mr Bald advanced the argument that, on the evidence, Mr Hesford failed to look into his driver's side rear view mirror immediately before he commenced the turn into Rhind Road.  Further, that if he had done so, the collision would likely not have occurred because the tray top ute would have been visible as it manoeuvred into the northbound lane that it was using to overtake, and also whilst it was entirely in the northbound lane.

3. Mr Bald's case on this issue is primarily that Mr Hesford negligently failed to look into his mirror but, alternatively, if he did, he negligently failed to see the tray top ute.  Either way, Mr Bald asserts that Mr Hesford's negligence caused the collision.

4. Mr Bald is realistic[12] concerning the prospect of a finding of contributory negligence against him, on the basis that he, arguably at least, failed to heed the possibility that the fact that the rig was slowing as it approached an intersection meant that the driver of the rig intended to turn right.  But he asserts that significantly greater culpability rests with Mr Hesford.

   [12] See par 14 of opening written submissions for example.

5. So far as the closing submissions on behalf of Mr Hesford are concerned, he also devoted significant time to the trailer issue.  Mr Hesford disputes that his driving was in any way negligent.  He asserts that he activated the right‑side indicator approximately 100 m from Rhind Road and at the same time checked his right‑side mirror.  Mr Bald was at that stage some distance away.

6. Mr Hesford then slowed his vehicle down and immediately before the intersection checked his mirror again but did not see the tray top ute.  Mr Hesford contends that Mr Bald only commenced overtaking when he was very close to the rig.  Mr Hesford relies upon the two discrete checks of his mirror as sufficient to defeat the claim of negligence against him.  He submits that there was nothing more he could have done to avoid the collision.

7. Mr Hesford further submits that even if his evidence that he checked his mirrors is rejected, Mr Bald has still failed to prove that had Mr Hesford looked he would have seen the tray top ute and so would not have commenced the turn.

8. Although the issues in this case can be broken down into various sub issues, the fundamental issues are:

   (a)whether it was unsafe for Mr Bald to overtake Mr Hesford in the circumstances of this case;

   (b)whether Mr Hesford failed to adequately look out for other vehicles prior to executing the right-hand turn. As will be seen, other issues that are raised on the pleadings have largely fallen away.

The evidence of preliminary matters

1. By preliminary matters, I mean the evidence of the driving by Mr Bald and Mr Hesford immediately prior to the point when it is contended by Mr Hesford that he indicated his intention to turn right.

2. The only eyewitnesses to the collision are Mr Bald, Mr Hotker and Mr Hesford.  There was evidence from one witness read in and a further witness called (Christopher Bell), concerning the events immediately following the collision.  Unlike many other cases, there was no expert evidence.  There are photographs of the location of the tray top ute immediately following the collision, but no attempt to reconstruct the relative positions of the two vehicles at the time of the collision.  There is an overhead map which shows the position of Brown Road relative to the Highway and Rhind Road relative to the Highway.  There was some evidence that Mr Bald may have been prosecuted for careless driving, but as I will explain it was too nebulous to have any bearing upon my determination of relative fault.  Mr Bald's evidence in that regard does, however, bear on his credibility.

3. Mr Hesford's case is that he pulled up at the intersection of Brown Road and the Highway, checked both ways and saw a vehicle (which on the evidence was the tray top ute) a fair distance off to the right, coming from the north.  Mr Hesford judged that it was safe to continue on to the Highway and he did so.[13]

   [13] ts 64.

4. Mr Bald said that he first saw the rig when it was about 500 m ‑ 600 m ahead of him.[14]

   [14] ts 13.

5. On 3 July 2020, Mr Bald was interviewed under caution at the Esperance police station between 10.13 am and 10.36 am.  There is no agreed verbatim transcript of the interview, but in the plaintiff's book of documents[15] there is a handwritten summary authored, I assume, by one of the interviewing officers.  According to that summary Mr Bald told police that he did not know the distance when he first saw the rig ahead of him.  In evidence, Mr Bald said he was not sure why he did not give the police a specific distance.[16]

   [15] PBD, pages 119 - 120.

   [16] ts 28.

6. The Highway, if one was travelling south and approaching Brown Road appears to be a straight stretch of road.  Mr Bald's front seat passenger, Mr Hotker, noticed the rig pulling out from Brown Road so as to then travel south down the Highway.  He was initially unable to estimate the distance between the two vehicles.[17]  When pressed, he agreed that the rig was 'a fair distance' away when he first saw it.  He then put the distance as between 2 km - 5 km.[18]

   [17] ts 44.

   [18] ts 51.

7. Mr Hotker did not check the speedometer, but his impression was that Mr Bald was driving at the speed limit of 110 km per hour.  He said that the distance from Brown Road to Rhind Road was 'not very far'.[19]  Mr Hotker said:[20]

   so we sort of caught up quite quickly.  As the truck would not have been going very fast.

   [19] As noted, it is an agreed fact that it is 700 m.

   [20] ts 46 (noting a slight error in the transcript).

8. I found Mr Hotker to be an honest and reliable witness who gave evidence to the best of his abilities without trying to adjust his recollection so as to favour one party or the other.  No reasons have been advanced as to why I should not accept Mr Hotker's evidence.  There is no suggestion that he was distracted or not paying attention to the road ahead of him at the time.  There is absolutely no discernible reason for him to wish to favour Mr Hesford and there is no reason to suppose that he would wish to undermine Mr Bald's case.  His assessment, later in his evidence, that overtaking another vehicle when one is only one or two car lengths behind was a safe distance is, if anything, unduly favourable to Mr Bald.[21]  He was, I find, entirely independent and he was a persuasive, understated witness.

   [21] Two car lengths would be approximately 10 m.  At 110 km per hour a car would cover that distance in 0.327 seconds, whereas according to guidelines of the Western Australia Road Safety Commission (and the experience of any driver) one should allow a two second gap between the car that is ahead.

1. Mr Bald said he was initially driving at a speed of 110 km per hour when he first noted the rig.[22]  In cross‑examination, he acknowledged that he may have accelerated to 110 km per hour, which is consistent with what he had apparently said when interviewed.[23]

   [22] ts 13.

   [23] ts 25.

2. Given that Mr Bald is dependent upon the use of a vehicle for his living, I consider that it would have been unlikely that he would have been speeding (certainly to any significant extent) at any relevant time.  However, there is also no reason to suppose that he would not have been driving at the speed limit of 110 km per hour.  I am satisfied that when Mr Hesford entered the Highway he saw the tray top ute and that likewise Mr Bald saw the rig.  I accept that the rig came to a stop at the intersection between Brown Road and the Highway.  I proceed on the basis that Mr Hesford accelerated from stationary to no more than 70 km per hour, before decelerating (about 100 m before the intersection) to a very slow speed (perhaps about 10 km per hour) in the 700 m section between Brown Road and Rhind Road.  Appreciating that there was no expert evidence, a very rough estimate would be that Mr Hesford's average speed over that section would be about 40 km per hour.  If that was so, simple arithmetic suggests that he would cover the 700 m distance in approximately 1 minute 3 seconds.

3. If Mr Bald was travelling at 110 km per hour, and if he was 2 km away from Brown Road when Mr Hesford entered the Highway, then he would have 2.7 km still to cover before he got to the Rhind Road intersection.  Assuming that his speed remained constant, he would cover that distance in 1 minute 28 seconds.  In that scenario the two vehicles would be within 25 seconds of each other at the point that Mr Hesford was about to turn.

4. Through a combination of Mr Hotker's evidence and those rough 'layman' calculations, I find that at the time that Mr Hesford emerged onto the Highway, the tray top ute was about 2 km away, perhaps slightly less, to Mr Hesford's right.  In those circumstances, it was properly open to Mr Hesford to enter the Highway, even though he would be leaving it after only 700 m.

5. Mr Bald testified that when he first noted the rig, it 'was not really moving, if at all'.[24]  He thought the vehicle was parked on the side of the road or about to park on the side of the road.  This was when it was at the junction of Rhind Road.[25]

   [24] ts 14.

   [25] ts 21.

6. Mr Bald was cross‑examined about his apparent account in the interview that he 'saw the left indicator when beside truck'.[26]  Mr Bald stated that it would be logistically impossible for him to literally have seen the left‑hand indicator on the rig at a time when he was beside the truck on its right.  Mr Bald did accept that he had said to the police officer that he thought that the truck had stopped for a reason.[27]

   [26] ts 30.

   [27] ts 31.

7. Mr Bald was also asked about a WorkFocus initial assessment report dated 23 September 2020.  The date of assessment is 16 September 2020 and it was completed via a telehealth appointment between Mr Bald and a Ms Ashleigh Brown from WorkFocus Australia.[28]  According to this form, Mr Bald reported that:

   He was driving a vehicle and spotted a parked truck, which he proceeded to overtake.  He explained the truck was not parked but moving at a slow pace and it collided with his vehicle when overtaking.

   (my emphasis)

   [28] Defendant Book of Documents (DBD), page 37.

8. In cross‑examination, Mr Bald said that he did not remember this specific conversation.  He claimed that he had 'hundreds of conversations with Ash'.[29]  Although there appears to be some clarification by Mr Bald in this conversation, I consider it significant that the initial impression he conveyed to Ms Brown was that the other vehicle was parked.

   [29] ts 32.

9. Mr Bald was shown a CGU Workers Compensation form dated 6 November 2020.[30]  Mr Bald answered the question, 'who in your opinion was to blame for the accident and why?' as follows:

   truck failed to indicate early before turning and appeared to be stopped on side of road.

   [30] DBD, page 42.

10. Mr Bald seemingly also stated in this form that charges of careless driving had been initiated against him.[31]

    [31] DBD, page 44.

11. Mr Bald said in evidence that he was not sure if he pleaded guilty to that charge.  He thought that he 'just got charged with it'.  He 'paid a fine or something', but he could not remember it specifically.  He did not go to court in relation to this.[32]

    [32] ts 33.

12. I attempted to clarify this aspect of the case.  Mr Bald confirmed that he paid a fine in relation to an allegation of careless driving which he accepted on the basis of:

    Oh okay, whatever, I've got to do it obviously because that's what they saw fit.

13. Mr Bald agreed that it was his decision as to whether to plead guilty either in person or by post and open himself up to a fine.

14. I asked Mr Bald:

    So, when you decided that you would pay the fine in relation to the allegation of careless driving, what was it that you accepted was careless about your driving?

15. Mr Bald replied, 'The fact that I overtook a truck and got hit by it'.[33]

    [33] ts 34.

16. I found this aspect of Mr Bald's evidence evasive and unsatisfactory.  On the one hand he was indicating that he had, one way or the other, accepted an allegation of careless driving which might have resulted in a fine, although he could not remember it.  But he declined to unambiguously state what part of his driving he accepted was careless.

17. Mr Bald was not asked to explain why he had said in the form that the truck appeared to be stopped on the side of the road.

18. Further, Mr Bald also accepted that he had seen a Dr Ker, a specialist in rehabilitation medicine, on or about 8 May 2023.  Dr Ker's records are as follows:[34]

    En route he [Mr Bald] was travelling behind a truck, which he had indicated to pass and had moved beside that truck when it appears that the truck then indicated that it was turning left and turned directly into his path and struck the left‑hand side of your client's vehicle.

    [34] DBD, page 75 and Exhibit 8.

19. Mr Bald denied telling Dr Ker that the truck indicated to turn left.[35]

    [35] ts 35 - ts 36.

20. Asked in re‑examination to explain his answers about describing the left‑hand indicator both in the police interview, and during his consultation with Dr Ker, Mr Bald replied 'I believe they've probably written that incorrectly'.[36]

    [36] ts 41.

21. It seems to me to be unlikely that both the police officer summarising an interview and Dr Ker summarising his consultation, would erroneously hear Mr Bald say 'left' when in fact he said 'right'.

22. I do not consider that the rig created the impression that it was parked on the gravel at the side of the road.  It was never suggested to Mr Hesford that it was.  I am satisfied that Mr Bald appreciated that a slower moving vehicle had come onto the Highway ahead of him and was continuing to make its way down the Highway.  It would have been apparent to Mr Bald that the relative speeds were such that he would have to overtake it to maintain his speed.

23. Mr Bald's account on two separate occasions on this issue was inconsistent with his evidence at trial.  I will consider the extent to which that potentially impacts on his credibility a little later.  For the moment, I note that Mr Bald's pleaded case is that:[37]

    It appeared to Mr Bald that Mr Hesford was intending to come to a complete stop on the left‑hand side of the road.

    [37] Statement of claim, par 2.4.

24. I do not accept that Mr Bald did form this impression.  Mr Hesford did not manoeuvre his vehicle to the gravel on left‑hand side of the Highway, once he had entered the Highway, nor (contrary to what was seemingly said in the interview and to Dr Ker) did he ever indicate to the left.

25. Mr Bald has adduced no evidence to substantiate the assertive proposition in the statement of claim[38] that Mr Hesford was 'driving his vehicle ... partially on the gravel on the left‑hand side of the road'.

    [38] Statement of claim, par 2.3.

26. Mr Bald has failed to establish par 3.1 of the pleaded particulars of negligence.  Mr Bald has also failed to establish the first part of par 3.2 of the pleaded particulars of negligence, namely:

    Suddenly and without sufficient warning instead of coming to a stop on the left-hand side of the road …

27. I accept that the rig would have been travelling relatively slowly compared to the tray top ute.  But I do not consider that there is any evidence that would justify Mr Bald concluding, as pleaded,[39] that it appeared to him that Mr Hesford was intending to come to a complete stop on the left‑hand side of the road.

    [39] Statement of claim, par 2.4.

Was it unsafe for Mr Bald to have overtaken the rig in the circumstances of this case?

1. I appreciate that I must first determine that Mr Hesford was negligent before the question of any contributory negligence arises.  But if one proceeds to consider the contentious issues chronologically, having set out the uncontroversial matters and those matters which have essentially fallen away or are not established, this is the first significant issue that remains between the parties.

2. In determining whether it was unsafe for Mr Bald to overtake the rig it is necessary to consider his speed, his proximity to Mr Hesford at the time that he commenced overtaking, whether Mr Hesford had given any indication that he was going to turn off to the left as opposed to the right and, importantly, whether or not Mr Hesford indicated to the right, and if he did, whether Mr Bald saw that.

3. I have already found that Mr Bald's speed as he approached Mr Hesford was at least 110 km per hour.  The evidence does not permit me to conclude that he was exceeding that speed.  I have also already found that Mr Hesford did not, in fact, give any indication that he was about to turn off to his left and stop.

4. Mr Bald testified that:[40]

   I sort of come up to about roughly 100m behind the truck, put my indicator on out to the right, checked my mirrors, made sure everything was all good, slid out to the right with the intention of overtaking the truck.

   [40] ts 14.

5. Mr Bald continued:[41]

   As I got pretty close to the - the back trailer of the truck, I saw an indicator flash out of my left eye and continued because we really wasn't going to have any other option.  Saw an indicator flash out of my left eye on the back of the first trailer [by which he meant the one in front of the rear trailer].

   [41] ts 15.

6. Mr Bald disputed that he was 'pretty close' to the truck when he overtook.  He maintained that he was about 100 m away.[42]

   [42] ts 39.

7. Mr Bald agreed that in the online crash report form[43] he was recorded as saying:

   I indicated to overtake and went to the right side of the road as it was clear.  I then realised when I was next to the truck that they had their indicator on to turn right but it was very faint.

   [43] DBD page 30.

8. Mr Bald maintained that as he was approaching the truck he did not see any brake or indicator lights, so he had no reason to believe it was going to turn right.[44]

   [44] ts 18.

9. Mr Bald was asked about his observation in the police interview that, 'I saw indicator, I realised what he was doing'.  He said that meant 'When you finally see an indicator turning right you realise their intention is to turn right'.[45]

   [45] ts 21.

10. In summary, Mr Bald's evidence was that he was 100 m behind Mr Hesford when he began to overtake and he did not see any right side indication.  It was only when he was in the process of passing by the rig that he saw the indicator, implicitly having just been switched on at that point.

11. Counsel for Mr Bald called Mr Hotker as a witness.  In examination‑in‑chief, Mr Hotker said as follows:[46]

    ….

    Mr Hotker: We followed up behind the truck, we got distance, I'm not sure how far it was behind the truck.  And then I'd seen the brake lights and indicators.  Then we proceeded to pull out right.

    Q: Which indicator?

    A: The righthand side indicator, yep ... To overtake the truck.  We got to on, say - halfway up the truck.  And the truck started to - that's, yeah.  We started to come round and the truck started to turn.

    [46] ts 46 (noting transcript error regarding name of road).

12. Counsel asked Mr Hotker if he was paying attention to what the truck was doing.  Mr Hotker answered:[47]

    Yeah, indicators was - and brake lights were on.  Which would indicate turning.

    [47] ts 47.

13. So, Mr Hotker's evidence was that he noted both the brakes and the indicator prior to Mr Bald pulling out to the right.

14. Mr Hotker was asked about the position of the vehicle he was in when he first noticed the rig moving.  He said that they were still coming up to overtake, and then the rig had turned and they were just about the same position as to when the rig was about to turn.  Mr Hotker said that this was pretty much at the intersection of Rhind Road.[48]

    [48] ts 47.

15. Mr Hotker confirmed in cross‑examination that he vividly (counsel's phrase) remembered seeing the indicators and the brake lights on the truck or the trailer prior to Mr Bald overtaking.[49]

    [49] ts 53.

16. Mr Hotker did not consider that Mr Bald was tailgating Mr Hesford prior to moving out to overtake.  But on the other hand, neither was he hundreds of meters behind or even 100 m behind.  Mr Hotker's best estimate of the distance was one to two car lengths, which, as noted previously, he considered a safe distance to commence overtaking a truck.[50]

    [50] ts 54.

17. Mr Hesford testified that he put his (right) indicator on about 100 m[51] before the intersection of Rhind Road.  I am satisfied that, as Mr Hesford asserted and as Mr Hotker saw, Mr Hesford both braked and indicated to the right prior to attempting to turn into Rhind Road.

    [51] ts 64 (noting transcript error regarding the reference to 11, as opposed to 100 m).

18. As noted there was no expert evidence in this case.  The only direct evidence as to distance from the intersection at the time the indicator was activated comes from Mr Hesford.  I accept his evidence that he did indicate to the right.  Mr Hotker's evidence is not inconsistent with Mr Hesford's evidence on this point.  I find that Mr Bald either failed to see the indicator or ignored it and so I do not accept any assertion (that might flow from his evidence) that the indicator was activated for the first time at the intersection.

19. A vehicle travelling at 70 km per hour would cover 100 m in about 5.1 seconds.  A vehicle travelling at 40 km per hour[52] would cover 100 m in about 9 seconds.

    [52] An average of 40 km per hour could arise from a maximum speed of 70 km per hour and a minimum of 10 km per hour.

20. I think it likely that Mr Hesford was indicating for about 5.1 ‑ 9 seconds before the collision.

21. Either Mr Bald did not see the brake lights and the right‑side indicator, although he should have; or he saw them but chose, nonetheless, to overtake, which plainly he should not have done.

22. In terms of proximity between the two vehicles at the time of overtaking, I prefer Mr Hotker's evidence to Mr Bald's.  I consider Mr Hotker to be a far more credible witness than Mr Bald.  If the vehicles were only about two car lengths apart at that time, Mr Bald would have been dangerously proximate to the vehicle ahead, particularly given the difference in their relative speeds.  I think it likely that the distance was slightly greater than that estimated by Mr Hotker, but I find that Mr Hotker had correctly formed the impression that the two vehicles were much closer than 100 m when the overtaking manoeuvre occurred.  This suggests to me that the decision by Mr Bald to overtake was a last-minute decision, brought about by the sudden realisation of how slow the vehicle ahead of him was actually travelling.  It was a decision, I find, taken without any particular contemplation and in those circumstances, the most likely explanation is that Mr Bald failed to see the indicator.

1. There was nothing to suggest that the indicator light on the rig was not of ordinary prominence when illuminated and, of course, Mr Hotker saw it.

2. Had Mr Bald moved into the northbound lane while he was 100 m behind the rig, I would have expected him to be visible in Mr Hesford's mirror when he initially (as for reasons I set out below I find he did) looked into his side mirror.

3. Given that the evidence does not permit me to conclude that Mr Bald was exceeding the speed limit, I do not accept the contention in Mr Hesford's opening submissions that Mr Bald overtook at excessive speed in the circumstances.  The closing submissions on behalf of Mr Hesford do not contend for a finding that Mr Bald exceeded a speed of 110 km per hour.  Nor do I accept that the hazardous situation was wholly caused by Mr Bald's speed and inattention to the vehicle that he was following and which he ultimately elected to overtake at significant speed.  I do accept that the hazardous situation was caused by Mr Bald's inattention to the rig, specifically the fact that it was indicating to the right.  That does not preclude a finding that Mr Hesford was negligent in not keeping a proper lookout.

4. I accept Mr Hesford's evidence that he and Mr Bald spoke following the collision.  Mr Hesford was not specifically challenged about this in cross‑examination.  Given how badly injured Mr Bald was at the time, however, I am hesitant in making findings about precisely what he said and, ultimately, I find it unnecessary to do so.

5. I find that Mr Bald has also failed to establish the balance of particular 3.2 of the particulars of negligence, namely that Mr Hesford failed to turn on the right‑hand indicator at a sufficient distance from the intersection to provide Mr Bald and other vehicles adequate notice that Mr Hesford intended to turn right.

6. I am comfortably satisfied that it was unsafe for Mr Bald to have overtaken the rig in the circumstances that I have found existed.

Did Mr Hesford fail to adequately look out for other vehicles prior to executing the right‑hand turn?

1. I accept that Mr Hesford was aware of the presence of the tray top ute behind him on the Highway.  I consider that was so from the time that he entered the Highway at Brown Road.  To state the obvious, neither Mr Bald nor Mr Hotker are in a position to give direct evidence as to whether Mr Hesford did or did not check his mirror, or indeed physically turn to look out of his window.  Mr Hesford gave evidence that he did conduct a mirror check.

2. Mr Bald invites me to reason that on the objective facts a reasonable and rational inference is that Mr Hesford did not keep a proper lookout, because if he had, he would inevitably have seen the tray top ute, and that accordingly I should reject Mr Hesford's evidence to the contrary.

3. Mr Hesford initially testified that before he started to slow down, approximately 100 m from Rhind Road, he 'checked his mirrors again' and saw the tray top ute a little way behind him.  He stated:[53]

   I'm not sure exactly how far.  It's a bit hard to tell in the mirrors.

   [53] ts 64.

4. It is not entirely clear why Mr Hesford used the word 'again'. I accept that he was referencing back to the various checks that he carried out immediately prior to joining the Highway from Brown Road, but it seems unlikely that that would have included checking his rear mirrors.

5. In any event, if it was the case that Mr Hesford checked his mirror at this stage, on his evidence there was nothing about the tray top ute either in terms of its proximity to his vehicle or, more particularly, whether it had moved over into the north bound carriageway that caused him any concern.

6. I consider it likely that Mr Hesford did not appreciate the speed with which the tray top ute was approaching.

7. Mr Hesford stated 'just before I made the turn onto Rhind Road, I'd just started to turn to the right and then saw a -'.

8. Mr Hesford in effect stopped himself at this point and then continued:[54]

   I'd checked my mirror again and saw nothing in - in the other lane or yeah, nothing behind me because the - the ramps obstruct the view of the - the back of the truck.

   [54] ts 64.

9. I interpret that evidence as being that he had made a second mirror check just before he turned, but the chronology of his evidence on this particular point did not flow smoothly.

1. Mr Hesford then completed his narrative as follows:[55]

   And then as I started to commence the turn, I then saw a - a flash of light out of my mirror as I was - started to turn and just slammed the brakes on and stopped instantly.

   [55] ts 64.

2. So Mr Hesford's evidence was that he checked his mirror for a second time and saw nothing in the northbound lane.  He began to turn and then saw a flash of light, which would have to be the tray top ute, in the mirror.  He then slammed on his brakes.

3. Mr Hesford reiterated that he started to slow down about 100 m before the junction with Rhind Road and he put the indicator on and checked the rear vision mirror.[56]  There was no rear vision mirror within the rig itself and there was no vision straight through the centre of the truck and out of the rear window.[57]

   [56] ts 65.

   [57] ts 64 - ts 65.

4. The following exchange (in examination‑in‑chief) then occurred:

   Q: You say that immediately prior to turning, you checked the side mirror?

   Mr Hesford: Yes.

5. The implication from Mr Hesford's earlier answer was that the mirror check was immediately before he commenced to turn.  However, he had not said so in terms and so the question should not have been framed as it was.  There was, however, no objection at the time.

6. Mr Hesford said that when he checked that side mirror, he did not recall seeing the other vehicle behind him or next to him, he just recalled seeing the road open behind him.[58]

   [58] ts 65 - ts 66.

7. He was taken back to the first mirror check and said that when he started slowing down, the other vehicle was a few hundred metres behind him.[59]

   [59] ts 66.

8. I consider it much more probable that the tray top ute was significantly closer at that time.

9. Mr Hesford gave evidence about voluntarily travelling to Esperance on the day of the accident with the attending police officers where he provided a witness statement, consisting of 4 ½ pages.[60]

   [60] Exhibit 13.

10. In that statement Mr Hesford stated that he drove along the Highway for about only 2 km - 3 km,[61] whereas, as already noted, the distance was in fact 700 m.

    [61] Exhibit 13, par 14.

11. Mr Hesford described in the statement that he slowed the truck down and indicated to turn right onto Rhind Road.  Just as he started to turn, he spotted the other vehicle in the corner of his right‑hand mirror.  It was coming past him on his right‑hand side.[62]

    [62] Exhibit 13, pars 16 - 18.

12. The inconsistency relied upon is that, in his statement, Mr Hesford only mentions looking in his mirror once.  Further, he does not describe it as being in the form of a check, rather, as he was turning, his attention was drawn to the fact that there was a vehicle in the corner of his mirror.

13. Mr Hesford was cross‑examined accordingly:[63]

    [63] ts 75 - ts 76.

    Q: those paragraphs when read together don't say anything about looking in the mirrors before you turned, do they?

    A: No, but I wasn't asked directly for that at the time.

    Q: You were asked to break - presumably you were asked to break down what had happened though?

    A: Yes

    Q: You chose what detail to put in and what detail to leave out; is that right?

    A: No, I just put in what I could remember at the time.

    Q: So presumably you couldn't remember at the time that you looked in the mirrors even once before you turned?

    A: I think I could remember doing it, it just didn't get entered into my statement.

    Q: So you did say it but it's not in the statement?

    A: No.  That's not what I said.

    Q: What did you say then?

    A: I said I'm - I'm sure I would - would have been able to remember looking in my mirrors, it just didn't get entered into my statement.

    Q: You - you never told anyone, is that what you're saying?

    A: I mustn't have.

14. In re‑examination, counsel asked about the circumstances in which he made this statement.  Mr Hesford said:[64]

    We just sat in a room together and they just asked me to tell them what happened and they wrote it down.  I think that was over the phone from memory.  I can't - yeah, I can't remember making that statement either, to be honest.

    [64] ts 85.

15. Having clearly stated that the statement was taken, as one might expect, whilst he was seated in a room with a police officer, Mr Hesford then suggested it might have been over the telephone and that he could not remember making that statement.  I do not accept either of those assertions and I do not consider that Mr Hesford has adequately explained this inconsistency.

16. In a similar vein, Mr Hesford was cross‑examined about differences between his evidence during the trial and what he had said in a 10 page statement to the Insurance Commission of Western Australia, dated 19 July 2021.[65]

    [65] Exhibit 14.

17. Relevantly, in that statement Mr Hesford said:

    I started to slow as I approached Rhind Road and I put the right indicator on the prime mover on.[66]

    …

    As I approached Rhind Road and prepared to turn I was travelling at about 20 kph.[67]

    I checked the external rear visions on both sides of the prime mover and I did not see any vehicles behind me.[68]

    ….

    I started to turn right from the Coolgardie/Esperance Highway onto Rhind Road.[69]

    I had just started to turn right and the front right corner of the prime mover would just have crossed the centre of the Highway.[70]

    ….

    I saw a flicker out the corner of my eye and then saw a vehicle overtaking on the right side.[71]

    [66] Defendant's statement to Insurance Commission of Western Australia, par 33.

    [67] Defendant's statement to Insurance Commission of Western Australia, par 35.

    [68] Defendant's statement to Insurance Commission of Western Australia, par 36.

    [69] Defendant's statement to Insurance Commission of Western Australia, par 39.

    [70] Defendant's statement to Insurance Commission of Western Australia, par 40.

    [71] Defendant's statement to Insurance Commission of Western Australia, par 42.

18. Mr Hesford was cross‑examined accordingly:

    Q: Once; is that right?

    A: That's what it says in the statement, yes.

    Q: It doesn't say you did it twice?

    A: No.

    Q: Isn't it the case that you didn't look in the rear vision mirrors at all?

    A: No, that's not the case.

    Q: Right.  When the statement was made, that was made to an Insurance Commission investigator; is that correct?

    A: I believe so.

    Q: Right.  You weren't confused then, were you, when you made this statement?

    A: Not that I know of, no.[72]

    [72] ts 77.

    Q: Essentially, as soon as the turn - as soon as you commence the turn, a collision happened, you know, in a split second.  Isn't that right?

    A: Yes.

    Q: Not even a second that - you basically moved a little bit and then the collision happened?

    A:  Maybe a couple - couple of seconds from - yeah.  Maybe a second.  I don't know.  It's hard to.

    Q: Surely if you'd looked at the mirror - in the mirror, he would have been there?

    A: No. I don't think so.  No.

    Q: Well, he was, wasn't he?

    A: Yes.  But he was - he must have been obstructed by the ramps on the back of the trailer.  From my vision.  But he wasn't - when I checked my mirror the second time, he wasn't alongside me yet.

    Q: And that look in the mirror - a second or two at the most, was the second time you'd looked in your mirrors.  Is that correct?

    A: Yes.  The first time was when I began slowing down … probably 100 metres up the road.[73]

    [73] ts 79 - ts 80.

    Q: After you saw the white vehicle for the first time.  If it was a white vehicle. Is that right?

    A: Yes.

    Q: Whether it was 2,3,5 kilometres away.  Did you ever see it again before the accident?

    A: Yes, when I checked my mirrors the first time I saw it in the mirror.  And then, I obviously saw it - that flash of - I didn't know it was a whole vehicle but saw the flash of white and assumed it was that vehicle coming past me.  Just before impact.

    Q: You just said, 'First time' you looked in your mirrors?

    A: The first time, about a 100 metres before.  And it was still a fair way off then.

    Q: How far do you think?

    A: It's hard to judge in the mirror, cos it - it's so - the picture is so bad.  But I - a few hundred metres I would say.

    …

    Q: And it was going really fast?

    A: It seemed to me.  Just the fact that it had been able to catch me up so fast from when I first saw it turning on the Highway.  It seemed like the car was going very fast.

    Q: Did that heighten your concern about the fact it might not obey road rules?  And it might not see - for example, your indicator?

    A: Not really, no.  I assumed everyone can follow the road rules and not overtake a turning vehicle.

19. The concession that at the time of the first alleged check in the mirror Mr Hesford perceived that the vehicle behind him was travelling very quickly is a significant one.

20. Before identifying my conclusions on this aspect I return to the trailer issue.

The trailer issue

1. Mr Hesford is clearly in the best position to know whether he had one or two trailers attached to his prime mover.  It is, of course, his vehicle.  The evidence of Mr Bald, and to an extent Mr Hotker, is based upon their observations of the rig from behind over a period of less than two minutes and then in a very brief moment as the tray top ute overtook the rig.

2. In her agreed evidence, Ms Doney refers to the truck that had stopped a long way back; clearly a reference to the rig but does not make any reference to the number of trailers.  She describes the rollover as occurring at 1.47 pm.  She did not see what caused the tray top ute to rollover.  She describes the police arriving at some stage after 2.20 pm.

3. It would seem from the incident report[74] that the rig was, shortly after the collision, collected by another person (Mr Christopher Bell) and driven to a nearby farm.  This would appear to be prior to the police attendance at the scene.

   [74] DBD, page 12.

4. Mr Bald essentially asserts that Mr Hesford is untruthful when he says that only one trailer was attached to his prime mover and that there are demonstrable reasons for him to falsely state that this was the position.

5. Mr Bald's evidence on this point was as follows:  The vehicle in front of him was a large white trailer and it was obviously attached to a truck.  He would commonly call such a trailer 'a grain trailer, a very tall, relatively oval shaped trailer'.  It had 'a big gate on the rear end and lots of tyres'.  Such vehicles are used to cart grain, fertiliser, and/or commodities around this district.  There are hundreds of them on the road on a daily basis.  They are closed trailers.  By reference to the two vehicles photographed in Exhibit 2, the trailer on the left (which has two trailers depicted) is a grain trailer.[75]

   [75] ts 13.

6. As already noted, Mr Bald stated that as 'he got pretty close to the back trailer of the truck, he saw an indicator flash out of his left‑hand eye'.[76]  This seems to be the only opportunity for Mr Bald to be able to make a definitive observation concerning the number of trailers.  He was travelling at 110 km per hour at the time, he was a split second away from crashing and plainly his focus would not have been on the precise number of trailers.

   [76] ts 15.

7. I do not find Mr Bald to be a particularly reliable observer given his failure to see the indicator.

8. In cross‑examination Mr Bald accepted that in his interview with the police he had described the other vehicle as being a white single trailer truck.  He sought to explain that by saying that he had been force fed information to believe it was a single trailer truck.  All the documents that he had been given were written by other people, but his recollection, at all times, is that it was two trailers.

9. The interviewing police officer asked him if it was one or two and he was pretty sure he said 'he was unsure, maybe one'.  Friends, colleagues, people who obviously knew about the accident had spoken to him.  That included one of his colleagues who actually attended the accident whose name seems to be a Mr Grantley, and who is an emergency fire officer.  He told Mr Bald that it was being said that it was a single trailer, causing Mr Bald to question his own judgment.

10. Mr Bald did not tell the police officer that he was not definitive on the number of trailers because he was probably more worried about the fact that he was told he was never going to walk again.  When asked if that was an operative fear at the time that he spoke to police, Mr Bald said that 'he was pretty just scared in general'.[77]

    [77] ts 34.

11. I find it highly improbable that the unnamed (apart from Mr Grantley) persons who spoke with Mr Bald were focused on the number of trailers attached to the rig.  The strong probability is that it was removed before any of them attended.  Even during the trial it is accepted on both sides to be a matter of somewhat peripheral relevance.  I highly doubt that anyone who spoke to Mr Bald was so adamant that this was a single trailer vehicle that it caused Mr Bald to doubt the impression that he had formed at the time that he overtook the vehicle.  I consider it to be far more likely that Mr Bald has, for whatever reason, come to the view that this was a vehicle with two trailers since his July 2020 interview, and that his recollection of the other vehicle at the time of his interview was precisely as he relayed to the police.

12. I am satisfied that it was Mr Bald who provided the details in the online crash report form of 25 March 2020.[78]  In that report, there is a reference to 'Vehicle description:  truck with a flat trailer'.  Mr Bald denied telling whoever completed this form that it was a truck with a flat trailer.  It is significant that the crash description at page 6 of this report is clearly written from the perspective of Mr Bald.  Nothing that is set out in the crash description is inconsistent with Mr Bald's account at trial.  The overwhelming probability is that it was Mr Bald who provided the description of the other vehicle as being a truck with a flat trailer (singular).

    [78] DBD, page 28.

13. Mr Hotker's evidence on this point was as follows:[79]

    Q: Have you had a clear memory of what that truck was like from that day … (as in) what the truck looked like?

    A: What the truck - yeah.  So it was a truck with one, possibly two, I'm still unsure, trailers on it.  A semi-truck.

    Q: How would you describe the trailers?

    A: I'd describe the trailer as an end tipper, which - fertiliser or grain carting trailer.

    Q: Are you familiar with different sorts of trailers?

    A: Yeah, I am quite familiar.  My parents own an earthmoving business in town and have done for 20 odd years, so quite familiar with all that sort of machinery.

    [79] ts 44.

14. Although Mr Hotker's witness statement was shown to him without objection in his evidence‑in‑chief, and indeed tendered, it is Mr Hotker's evidence at the hearing before me that I rely upon, not what he has said in an earlier witness statement.

15. In cross‑examination, Mr Hotker agreed that it is much more common to see trucks pulling grain trailers than it is to see a truck pulling a flatbed type trailer.[80]  He maintained that this vehicle was a grain trailer but he could not remember whether it was one or two (trailers).[81]

    [80] ts 52.

    [81] ts 53.

16. In his evidence, Mr Hesford, by reference to the photograph at page 180, said that he was driving the one on the right with the single trailer on the ramps.[82]

    [82] ts 60.

17. Mr Hesford stated that the truck he was driving on the day, the old Prime Mover, is:

    just for farm jobs really, running around the farm.  They have only got two trailers that they really ever tow with it, but they can only be towed singularly so there's either the float which is that one that's on it now or a flat top trailer which we use for moving chemical or other stuff around that's not - not - doesn't need to drive onto the - onto the trailer.

18. Mr Hesford said that the other one, we use 'purely for carting grain and fertiliser and - and bulk products like that ... not for - yeah, anything else'.

19. Mr Hesford said he never used this prime mover for carting grain because it was too old, lacked air‑conditioning and would not be able to tow the amount of weight that is in the other two trailers.[83]

    [83] ts 62.

20. Mr Hesford said that as soon as the crash happened, he parked on the side of the road and called his father who was working in a field nearby to come over and help.  It took about 10 or 15 minutes for the police to arrive.  At some stage, one of his workers, Christopher Bell, drove the truck back to the farm.[84]

    [84] ts 68.

21. Mr Hesford accepted that the prime mover he drove that day is capable of being hitched to two grain trailers,[85] but he denied that he drove the prime mover with two grain trailers.[86]

    [85] ts 70.

    [86] ts 81.

22. Mr Bell gave evidence.  He is a farm hand for Hesford Trading. Having been called to the scene of the accident he was asked by Ian Hesford (Mr Hesford's father) to remove (from the road) a truck and take it back to the farm, which he did.  It was a green Western Star with a drop deck on the back.[87]

    [87] ts 87.

23. He was also shown the photograph at page 180 and he said that the truck that he moved was the one on the right.  Mr Bell said that it is also the truck that is photographed at page 174.[88]

    [88] ts 88.

24. I appreciate that in the evidence there is a potential motive for Mr Hesford to falsely state that the rig had one trailer rather than two, namely the fact that he was only licensed to drive a vehicle with one trailer.  I am not satisfied that following this traumatic collision Mr Hesford's first impulse was to have the vehicle removed to avoid any problems that would ensue from driving a vehicle he was not licensed for.

25. The potential motive, in any event, does not overcome the weaknesses in Mr Bald's case on this point, arising as it does from the limited opportunity for both Mr Bald and Mr Hotker to observe the precise number of trailers, Mr Bald's multiple inconsistent statements on this point and Mr Hotker's uncertainty at trial.

26. Mr Bald has not established that there were two trailers as a matter of fact.  Accordingly, it is not open to me to make any adverse assessment of Mr Hesford's credibility arising from the trailer issue.

27. Mr Bald's credibility as a witness is adversely affected, to an extent, by my rejection of his evidence that he perceived that the rig was parking to the left and his evasiveness on the issue of any careless driving charges.

Factual conclusions on the adequate lookout issue

1. In light of the absence in the contemporaneous police witness statement to any mirror check, and the reference in the statement that was received as Exhibit 14 to a single check, I do not consider Mr Hesford's recollection in his evidence that he did look in the mirror on two discrete occasions to be reliable.  I have already concluded that Mr Hesford properly indicated to the right.  Although there are aspects of Mr Hesford's evidence that I do not accept, I do not have the same concerns about his credibility as I do for Mr Bald.

2. I consider it more likely than not that Mr Hesford did look in his mirror at the time that he began to prepare for the turn, approximately 100 m from the intersection.  But I consider that he either did not look in his mirrors at all at the point that he turned, or that if he did, the positioning of the tray top ute was such that it would not be visible in the mirror.  If that was so, it would be necessary to physically look out of the window to supplement the information to be obtained from looking in a mirror.  I accept that a mirror is an assistive device.  It is not determinative, as all drivers should know.

3. It is a reasonable and rational inference from the fact that Mr Hesford did not see Mr Bald until the moment before the collision that either Mr Hesford did not look in the mirror on that second occasion or, if he did, Mr Bald was in his blind spot and he did not remedy that by physically turning to look at the road.  I draw that inference.

4. The issue of whether there was one or two trailers does not bear upon this aspect.  I am not satisfied, as Mr Bald contended, that there were two trailers, but assuming that the position was that there was a single trailer, that would simply mean that it would take less time for Mr Bald to overtake Mr Hesford.  It would not prevent Mr Hesford from seeing Mr Bald if he had physically checked.

1. I have already concluded that it was unsafe for Mr Bald to have overtaken Mr Hesford in the circumstances that I have found existed.

2. The issue of whether there was one or two trailers does not bear upon this aspect either.  Assuming that the position was that there was a single trailer, that would mean that it would take less time for Mr Bald to overtake Mr Hesford.  It does not detract from the negligent decision to overtake a vehicle which had indicated that it was about to turn to the right.  It just would have meant that the chances of getting away with that manoeuvre would be marginally better.

3. It is not necessary to decide an issue that was raised in evidence as to whether, based upon his knowledge of the area, Mr Bald should have known that Rhind Road was approaching on the right.  Mr Bald should have known that Mr Hesford was about to turn right because he should have seen the indicator, not because he knew that there was a road coming up on his right.  Or, if he saw the indicator, but chose to overtake any way, the innately dangerous nature of such a manoeuvre is not substantially worsened by knowledge of the particular road that the other driver is about to turn onto.

4. I find that Mr Hesford began to indicate approximately 100 m from the intersection and at the same time he briefly checked his side mirror and formed the impression that the car behind him was not imminently about to overtake.  He slowed down in the manner that he described.  When he got to the intersection, I am not satisfied on the evidence that he looked for a second time.  On that basis, the fundamental issue is whether, by failing to look into his mirror at the point that he turned, coupled with a failure to physically turn his head, Mr Hesford demonstrably breached his duty of care in failing to keep a proper lookout.

5. I will consider, by reference to authority, whether that factual finding means that particular 3.3 of the particulars of negligence has been made out or not.

6. Before doing so, I make it clear that I am not satisfied that either particulars 3.4 or 3.5 of the particulars of negligence have been made out.  At the point when Mr Hesford saw that Mr Bald was overtaking him, the two vehicles were so proximate, and Mr Bald's speed was such that it would have been impossible for Mr Hesford to take evasive action to avoid a collision with the tray top ute, by applying his brakes in time to avoid the collision.

7. In Department of Housing and Works v Smith [No 2] Buss JA identified[89] some well‑established propositions concerning the notion of a 'reasonable person' and the standard of 'reasonableness' generally, under the common law of negligence. I will return to those propositions at [263] - [268] of these reasons.

   [89] Department of Housing and Works v Smith [No 2] [87].

8. The reasonable care that a driver in the position of Mr Hesford must exercise when driving a vehicle on the road, requires that the driver control the speed and direction of the vehicle in such a way that he/she may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.[90]

   [90] Manley v Alexander (2005) 223 ALJR 228 [12] (Gummow, Kirby & Hayne JJ).

9. More analogously to the factual matrix here, I had particular regard to the decisions of Richards v Picco[91] and Dent v Calcagno.[92]

   [91] Richards v Picco [2000] NSWCA 35 (Richards).

   [92] Dent v Calcagno [2016] NSWCA 289 (Dent v Calcagno).

Richards v Picco

1. In Richards, the respondent's husband (the deceased) was riding a motorcycle west along the Oxley Highway.  The speed limit was 100 km per hour.  The appellant had been droving sheep in the area.  She drove a Sherpa motor vehicle, onto the highway, at which time she saw the deceased about 1 - 2 km behind her.  She proceeded west for 200 m ‑ 300 m.  She saw the deceased again when he was about 100 m away.

2. A fatal collision occurred when the motorcycle ran into the Sherpa as the latter executed a right‑hand turn.  The collision occurred wholly within the east bound lane of the highway.

3. There was a sheep warning sign beside the road at least 1 km east of the accident.

4. The appellant at all times was travelling at speeds well below the speed limit.  Her maximum speed was 60 km per hour and prior to the collision she had been decelerating by moving down through the gears without using brakes.

5. She did not deviate to the left.  She made the turn in second gear at a speed of 15 km per hour which was decreasing.  The right‑hand blinker of her Sherpa utility had been activated when the motorcycle was at least 40 m - 50 m behind and travelling on the correct side of the road.

6. Immediately after she activated the blinker, she looked in her rear vision mirror and saw the deceased 40 m - 50 m behind her.  She continued on for another 30 m and began to turn.

7. The deceased was travelling at a speed in excess of the speed limit (at least 110 - 115 km per hour).  The deceased did not brake until the last moment, whereupon the bike moved on to the incorrect side of the road.  There was no evidence that the deceased had given any indication of an intention to overtake.

8. The trial judge found the appellant to be negligent in that she executed the right‑hand turn across the highway, without paying proper attention to the near presence of the motor vehicle and failed to properly take into account the speed at which the motorcycle was approaching.

9. Had she paid proper attention to the near presence and the speed of the motorcycle, she could have waited before making the right‑hand turn and thus allow the deceased to overtake her.

10. Giving judgment, Heydon JA (Mason P agreeing with Meagher JA dissenting) noted that the trial judge did not find, nor was it argued by the respondent, that it was negligent of the appellant:

    •to slow down from 60 km per hour to 15 km per hour through the gears; or

    •to remain on the left‑hand side of the road while slowing down;

    •or to fail to pull over to the left to permit the motorcycle to pass.

11. The respondent's submission at trial was:[93]

    that all that was required of the [appellant was] that she not alter her position on the roadway.

    [93] Richards [23].

12. Heydon JA held:[94]

    There was no evidence or finding that the deceased intended to overtake the appellant at the point at which the collision occurred, nor, if the deceased had that intention, that he had communicated it in sufficient time for the appellant to avoid the collision.  Without communication of that intention, it is difficult to find a want of care in the appellant in turning right.

    [94] Richards [25].

13. Here, I am satisfied that when Mr Hesford checked his mirror, Mr Bald was not indicating.  There was nothing to definitively suggest that he intended to overtake, but given the relative speeds, a reasonable person would conclude that was a distinct possibility.

14. Heydon JA further held:[95]

    Once one excludes from the possible candidates for negligent conduct the appellant's failure to move to the left, the circumstances point to the cause of the accident as being the excessive speed of the deceased.  The evidence does not support the conclusion that the deceased was in the act of overtaking, nor did the trial judge find this.  The deceased … had unbroken opportunities to gauge relative speed and can have had no legitimate expectation that the Sherpa vehicle would move aside to the left.  He must have seen her continuously.  He must have perceived, or ought to have perceived, the possibility that she would turn. She had moved on to the road from an adjoining property, and the inference that she might turn off the road to commence some new pastoral task was available.

    [95] Richards [26].

15. In the present case, there is no doubt that Mr Bald was in the act of overtaking.  I do not consider that the cause of the accident was his excessive speed, but when an error is made (not seeing the indicator) by a driver travelling at 110 km per hour the ability to extract oneself from the situation that has suddenly arisen very often does not exist.

16. Mr Bald had unbroken opportunities to gauge relative speed and can have had no legitimate expectation that the rig would move aside to the left.  He must have seen it continuously.

17. He ought to have perceived the possibility that the rig would turn, without requiring any finding that Mr Bald was aware of the precise location of Rhind Road.

18. Heydon JA noted that the respondent submitted that rather than engaging in other activities, the time should have been spent in a further look at the motorcyclist.[96]  His Honour then held as follows:[97]

    The appellant was not found negligent in looking back at the cyclist only just after putting on the right‑hand indicator as distinct from before.  To require the appellant to look back not only just after putting on the indicator but just before actually turning was to require something more than care: she was entitled to assume that the motorcyclist would respond to her indication of intention.  In all the circumstances there was no failure to take care.

    [96] Richards [27].

    [97] Richards [28].

19. Mr Hesford submits that, in the same way, he was entitled to assume that Mr Bald would respond to his indication of intention.

20. Heydon JA concluded:[98]

    But, assuming that her failure to check the whereabouts of the cyclist before putting on the right-hand indicator was a failure to take care, it was not causative of the accident. Had she checked the whereabouts of the cyclist immediately before putting on the right hand indicator and immediately before turning, she would have seen nothing different from what she had seen earlier save that the cyclist was closer.  [The deceased's] speedy approach was not something [per se] which ought to have induced her to 'have waited' [ie stopped] before making the right hand turn and thus allow the deceased to overtake her.

    [98] Richards [29].

21. Here, Mr Hesford would have seen something different to what he noted when he checked his mirror 100 m from the intersection.  It is not just Mr Bald's speed that should have induced Mr Hesford to desist from turning, it is the fact that if Mr Hesford had looked a second time, he would have seen the tray top ute in the overtaking lane.

22. I note that Perry J, hearing an appeal in Edwards v Brennan,[99] held that Richards was very different from the instant case, because in Richards the approaching/following vehicle was travelling at what was found to be an excessive speed of 100 km per hour or more.  It was held that, even if the driver of the turning vehicle had kept a better lookout than she did, she would not necessarily have been alerted to the fact that to turn in front of it was dangerous.

    [99] Edwards v Brennan [2004] SASC 207 [55].

23. I have commented on that distinction which favours Mr Bald.

24. Also, in that case there was a clear finding that the driver of the turning vehicle had made and operated her turn indicator in good time.

25. I have commented on that distinction which favours Mr Hesford.

26. Perry J stated:[100]

    It was an important consideration that it was the appellant's vehicle which was the turning vehicle. If a comparison is to be made between a duty of care owed by each party, it is consistent with authority[101] to regard the driver of the turning vehicle, that is, the driver of a vehicle intending to turn across the path of other vehicles which are otherwise maintaining a straight course, as under a duty to exercise a higher degree of care.

    [100] Richards [56].

    [101] Her Honour did not cite any specific authority.

27. That does not appear to have been the approach taken by Heydon JA in Richards.

28. In his dissenting judgment in Richards, Meagher JA stated:[102]

    [t]here is no doubt a duty exists to take reasonable care to prevent foreseeable injury to a vehicle travelling behind one, citing Cocks v Sheppard (1978) 25 ALR 325).

    Heydon JA did not refer to Cocks v Sheppard.[103]

    [102] Richards [8].

    [103] Cocks v Sheppard (1978) 25 ALR 325 (Cocks v Sheppard)

29. In seeking to distinguish Richards, counsel for Mr Bald contended that Mr Hesford did not look into the rear‑view mirrors at anywhere near 30 m before commencing the turn.  I have found to the contrary.  I accept, to an extent, a potential point of difference that Mr Hesford ought to have been mindful of his restricted view of the tray top ute.

Dent v Calcagno

1. I note that in his judgment the primary judge cited the dissenting observation of Meagher JA in Richards,[104] but the New South Wales Court of Appeal, in reversing the primary judge, made no reference to the authority of Cocks v Sheppard.

   [104] Calcagno v Dent [2015] NSWDC 308 [86].

2. In this case, the respondent, Mr Calcagno, was driving north on his motorcycle along Queens Pinch Road in New South Wales.  He was travelling at or near the speed limit of 100 km per hour as he approached a slow‑moving vehicle, also travelling north, driven by the appellant, Ms Dent.

3. The respondent sought to overtake the appellant, as she was undertaking a right‑hand turn into her driveway.

4. At trial, the appellant was found liable in negligence, with the judgment for the respondent being reduced by 25% for contributory negligence.  For the reasons that Basten JA explained, the appellant should not have been found liable.

5. As Basten JA noted:[105]

   The course taken by the respondent during that period [of driving] had to be determined as a matter of inference from limited objective circumstances.

   [105] Dent v Calcagno [4].

6. The appellant checked for approaching traffic, looking south down Queens Pinch Road, put on her right‑hand indicator and started the final 100 m drive back to her home, which was on the eastern side of the road.  When she looked back towards the south from the entrance to a dairy, her sightline was some 440 m. There was no traffic heading north as she pulled out.  Her right‑hand indicator automatically switched off as she straightened her vehicle.

7. The appellant gave evidence that she proceeded north along the road at a speed of approximately 10 - 15 km per hour, put on her right‑hand indicator again, checking for southbound traffic and then proceeded by a 'gradual inclination' across the southbound lane (unmarked) and into her driveway.

8. She travelled the distance of approximately 100 m from the dairy gateway to her driveway at a speed of 10 - 15 km per hour. At that speed, the trip would have taken approximately 25 ‑ 30 seconds.  A vehicle travelling at close to 100 km per hour would have covered some 700 m - 800 m in that time.  It followed that the respondent's vehicle would not have been visible to the appellant when she first pulled out of the dairy gateway.  She conceded that she did not look in her rear vision mirror before commencing the right‑hand turn into her driveway.  However, had she done so, she should have seen the motorcycle behind her.

9. Although there was a challenge to her evidence that she engaged her right‑hand indicator before turning into her driveway, the trial judge accepted her evidence that she did.  A significant issue remained, however, as to when she took that step.

10. The trial judge identified the two significant factual issues with respect to liability as:[106]

    (1)For how long was the defendant's indicator activated prior to impact? and

    (2)What was the speed of the plaintiff before he braked?

    [106] Dent v Calcagno [10].

11. In that case, each party briefed an expert with qualifications in motor accident reconstruction.

12. The appellant identified the point at which she engaged her right indicator prior to turning into her driveway as being alongside a yellow traffic advisory sign indicating a curve ahead.  That sign was measured as 27 m south of the appellant's driveway. The trial judge concluded that the indicator was activated approximately 10 m to the south of the southern edge of that driveway.

13. As Basten JA held that for reasons to be explained, that finding should not be accepted.[107]

    [107] Dent v Calcagno [16].

14. His Honour stated:[108]

    It should be accepted that the appellant should have looked in her rear vision mirror prior to making the right hand turn, although it must also be accepted that her primary focus of attention would have been on the road ahead, because there was a curve in the road to the north and she was about to cross in front of any southbound traffic.  The problem with the conclusion as to liability in the form adopted by the trial judge, was its imprecision, which did not demonstrate that the breach was a contributing cause to the accident.

    [108] Dent v Calcagno [17].

15. In the present case, there is nothing in the evidence that suggests that Mr Hesford should have been particularly watchful about traffic coming towards him, travelling north. Nor was any vehicle emerging from Rhind Road.

16. Basten JA held that:[109]

    the finding that the judge made, namely that the indicator was in fact turned on, not at the yellow sign, but 10 metres prior to the southern edge of the driveway, was never put to the appellant in cross‑examination. Nor, on a fair reading of her evidence, was it accepted by her either in the police interview, her examination-in-chief or her cross-examination. Accordingly, the finding of the trial judge in this respect should not have been made. If it were in fact a critical issue to the determination of the respondent's case, then it cannot be said that the respondent established on the probabilities that the appellant's indicator was not activated at the yellow sign. He therefore did not establish that she failed to activate her indicator at a point at which he would have had opportunity, on the evidence, to avoid the collision.

    [109] Dent v Calcagno [46].

17. As Basten JA noted:[110]

    The finding as to liability … identified the breach of duty as a failure to look in the rear vision mirror prior to commencing the right hand turn. It may be accepted that, whilst travelling slowly on a country road with a known speed limit of 100 km/h, the appellant should have checked her rear vision mirror (or side mirror) before commencing the turn.  It may also be accepted that, had she done so, she would (or at least should) have observed the motorcycle approaching.

    However, a further critical element in the finding was that she would have 'stopped her slow moving vehicle before turning'.  Why she would have stopped and whether she should have stopped were not explored in the evidence, nor in the reasons for judgment.  Whether she would have stopped, or not commenced her turn, or should have done either of those things, would depend on where the motorcycle was when she ought to have observed it.  The trial judge made no finding in that regard; nor on the evidence could he have done so.

    [110] Dent v Calcagno [47].

18. Here, the aspect of whether Mr Hesford could have stopped was explored because at the time that Mr Hesford was at the intersection and, as I have found, did not take a second look, Mr Bald was plainly in the process of overtaking.  Further, I am in a position to make findings on the evidence that Mr Hesford could have stopped before committing to the turn and that the tray top ute was in the process of overtaking the rig at the precise moment when he could have elected not to turn.

19. Basten JA further held:[111]

    As she could safely turn in those circumstances, there is no reason why she should have stopped - indeed, stopping in such a situation would probably have been extremely dangerous and a breach of duty.

    [111] Dent v Calcagno [48].

20. In the circumstances that applied here, a decision to stop the vehicle in the southbound lane at the intersection and not to proceed with the turn would be no more dangerous than proceeding towards the intersection at approximately 15 km per hour with an indicator on.

21. Basten JA observed, dealing with the circumstances of that case:[112]

    [the first variable is] that the appellant, looking in a rear vision mirror or a side mirror, must be in a position to assess the speed at which the approaching vehicle is closing on her vehicle.  It may very much be doubted that that can be done instantly and instinctively ... Absent expert assistance, the court would not be able to embark on calculations with respect to the perception of a driver, relying on the rear view mirror, to assess how long it would take to identify how fast the approaching vehicle was closing on her vehicle.  Nevertheless, common sense would suggest that given the nature of the image obtained in a rear vision mirror it would require measurable time.

    [112] Dent v Calcagno [50].

1. Here, Mr Hesford gave evidence, which I accept, that his earlier glance revealed that the tray top ute was approaching more rapidly than he had anticipated when he joined the Highway.

2. Basten JA continued:[113]

   The driver of the slow-moving vehicle then has to make a decision in an emergency (not of her own making) as to what to do next ... To stop will decrease the time it will take the approaching vehicle to reach her vehicle; to deviate from her current course may be to confuse the motorcyclist as to her intentions; if both continue on the same course that may lead to a collision.

   [113] Dent v Calcagno [51].

3. Here, although the emergency was not of Mr Hesford's making, a last look would have enabled him to take a course; simply slow from 15 km per hour to a stop and hold his position for a few seconds, which was manifestly safer than the course he in fact took.

4. His Honour stated:[114]

   It seems that the trial judge was able to reach no answers in relation to this situation on the evidence before him. He said that what the appellant would have observed, had she looked when she should have, was 'the motorcycle approaching or overtaking her vehicle.'  The use of the disjunctive 'or' is telling: the course she should have taken would almost certainly be different depending on whether the motorcyclist was already overtaking or was approaching from behind.  Understandably, there was no finding in that regard, partly because there was no finding as to the precise time at which she should have looked back, but also because there was no precise evidence as to where the motorcycle was at any particular time.

   [114] Dent v Calcagno [52].

5. The lack of certainty about whether the following vehicle was in the process of overtaking is a significant point of distinction to the present case. There is more precise evidence here as to where the tray top ute would have been in the event of a 'last look'.

6. Basten JA noted that the trial judge found that, in the circumstances that pertained there, the 'but for' test on causation was satisfied and the scope of liability was clearly established.[115]

   [115] Dent v Calcagno [53].

7. Basten JA held that:[116]

   The unresolved factors (a reference to findings of fact) that could not be resolved on the evidence must mean that the respondent, having the burden of proof, has failed to demonstrate causation on the balance of probabilities.

   [116] Dent v Calcagno [54].

8. His Honour said as follows:[117]

   …assuming that the appellant, in the exercise of reasonable care, looked in her rear vision mirror 6 or 7 seconds before commencing her turn, she would have seen a motorcycle more than 100 metres behind her with ample opportunity to avoid her if she commenced a gradual inclination across the road with her right hand indicator going. (There was, as senior counsel for the appellant noted, no evidence to suggest that the respondent had his right-hand indicator flashing or had given any other indication of an intention to overtake.)  Accordingly, there would have been no breach of duty in continuing on her intended course. In short, the failure to take the specific step identified as a breach of duty and look in the rear vision mirror prior to indicating her intention to turn right, was not causative of the accident.

   [117] Dent v Calcagno [56].

9. I do not consider that the same applies here.

10. Macfarlan JA agreed with Basten JA and held:[118]

    Once it is accepted that Ms Dent commenced to signal about 27 metres before commencing her turn and that she was travelling slowly, it follows, for the reasons given by Basten JA and Sackville AJA, that she was not negligent in failing to check the road behind her in her mirrors: the period of her signalling gave any vehicle approaching from behind a sufficiently timely indication of her intentions.

    [118] Dent v Calcagno [61].

11. Mr Hesford contends for the same conclusion in the present case.

12. Sackville AJA also agreed and noted that the primary judge then considered the relevant legislation and legal principles.[119]  In the course of doing so, he reproduced several provisions of the Road Rules 2008 (NSW) in force at the time of the accident.

    [119] Dent v Calcagno [70].

13. Sackville AJA went onto state that:[120]

    75The breach of duty alleged by the respondent was that the appellant failed to look behind her before executing the right hand turn.  The respondent's case was that if the appellant had looked in the rear vision mirror she would have seen the 'motorcycle approaching or overtaking her vehicle from the rear.'  The amended particulars to the Statement of Claim did not identify what the respondent should have done if she had seen the motorcycle approaching or overtaking her vehicle.  However, the primary Judge appears to have thought that the respondent would have stopped her slow-moving vehicle before turning and thus avoided the accident.

    …

    77… If the appellant gave adequate notice of her intention to turn right, having regard to the particular conditions prevailing at the time, it would be difficult to conclude that she had breached her duty of care by failing to look behind her prior to commencing the right turn. The difficulty can be seen by reference to the Road Rules and the evidence of the experts. If the respondent gave adequate notice of her intention to turn right, she complied with the requirements of Road Rule 48. It was not suggested that if she gave adequate notice of her intention, her failure to look in the rear vision mirror breached the Road Rules.

    78The fact that a driver is not in breach of the Road Rules does not necessarily mean that he or she cannot be found to be negligent. The question is what precautions a reasonable person in the position of the driver would have taken to avoid the risk of harm. The answer must depend on the circumstances of the case. In this case, however, the evidence from the experts did not suggest that if the appellant had given adequate notice to following vehicles of her intention to turn right, the exercise of reasonable care also obliged her to look in the rear vision mirror to ascertain whether vehicles were in fact approaching or attempting to overtake.

    [120] Dent v Calgagno [75], [77], [78].

14. Given the absence of expert evidence, I have to make my own assessment, on the facts as I find them to be, on whether the exercise of reasonable care also obliged Mr Hesford to look in the side mirror when he was at the intersection to ascertain whether vehicles were in fact approaching or attempting to overtake.

15. Sackville AJA continued:[121]

    [121] Dent v Calcagno [88], [89].

    88Once the appellant's evidence is accepted, it follows that she must have activated the indicator at least 6.5 seconds prior to impact. The likelihood is that the actual period was somewhat longer …

    89… the question of whether the appellant breached her duty of care has to be approached on the following basis:

    •the appellant complied with the Road Rules in that she gave sufficient warning that she intended to turn right into the driveway;

    •the activation of the indicator gave the respondent sufficient time to avoid a potential collision assuming (as the primary Judge found) that he was travelling at about 100 km/h;  and

    •there was no evidence from the experts that the appellant's failure to look behind her involved a departure from the standard of care reasonably to be expected of a driver in the appellant's position, given that she activated the indicator more than 6.5 seconds before the impact.

    In my opinion, these matters preclude a finding that the appellant breached the duty of care she owed to the respondent in the operation of her vehicle.

16. I have found that, like the appellant in Dent, Mr Hesford gave sufficient warning that he intended to turn right. Here, I have found that it is likely that the indicator was activated for about 5 - 9 seconds.  I accept that the activation of the indicator gave Mr Bald sufficient time to avoid a potential collision.  He did not have to overtake.  If he had not, then the collision would not have occurred.

17. As I have noted already, in this case whether there was a departure from the standard of care reasonably to be expected of a driver is a matter for me rather than an expert, but it is implicit in Sackville AJA's decision that, bar evidence from any expert, a finding that a failure to look behind constitutes a breach of a duty to take care, such a finding would not ordinarily be open to a trial judge.

18. On the question of causation, Sackville AJA concurred with Basten JA by stating:[122]

    Once it is accepted that the appellant activated the indicator at least 6.5 seconds prior to the impact, the evidence does not enable a finding to be made that the collision would have been avoided had the appellant looked in her rear vision mirror before commencing the right hand turn.

    [122] Dent v Calcagno [90].

19. In my view, that latter conclusion is very much fact specific as opposed to standing for a principle that where one indicates appropriately, a failure to also carry out a look can never be causative of any collision.

20. In seeking to distinguish Dent, counsel for Mr Bald submitted that, in that case, the collision occurred after the defendant had crossed the entire sealed roadway including the lane for traffic travelling in the opposite direction to the parties.  Not only that, but the defendant had proceeded by gradual inclination at a very low speed.

21. Counsel submitted that it was unsurprising that the Court of Appeal in Dent found that any breach of duty of the appellant (the defendant below) was overtaken/superseded by the respondent's negligence in failing to react to the appellant's slow, gradual and inclined movement across the whole of the 'oncoming lane' of the road, prior to the collision.

22. As I have found, however, Mr Bald should have reacted to the fact that Mr Hesford was slowing and indicating to the right for some time.

Cocks v Sheppard

1. In Cocks v Sheppard, the action arose out of a collision that occurred on the Great Western Highway in 1973 between a motorcycle ridden by the respondent and a semi‑trailer owned by the second appellant and driven by the first appellant (the appellant).  The trial judge found that the collision was caused by the negligence of the appellant and said that he was not satisfied that there was any contributory negligence on the part of the respondent.  An appeal to the New South Wales Court of Appeal was dismissed.

2. On appeal to the High Court, the lead judgment, allowing the appeal, was given by Gibbs J (Barwick CJ, Stephen & Aitkin JJ agreeing).

3. His Honour stated:[123]

   On behalf of the appellant it was then submitted that the trial judge was in error in failing to find that the respondent had been guilty of contributory negligence. It was argued that it was necessary for the respondent, in order properly to control his motor cycle, to use his right hand to change gear and apply his hand brake, and it was quite impracticable for him to continue the hand signal until the very moment of the turn.

   It seems to me that the respondent was guilty of a want of reasonable care for his own safety in another respect, namely in making his turn without taking reasonable steps to ascertain whether there was any vehicle behind him which was likely to overtake him.

   [123] Cocks v Sheppard (331).

4. So, this authority is to the effect that there can be a want of reasonable care if one makes a turn without taking reasonable steps to ascertain whether there was any vehicle behind the person which was likely to overtake the person's vehicle.  Obviously, what constitutes reasonable steps will depend on the particular circumstances in the given case.  Here, the motorcyclist did not have an indicator and so he could not use one, his mirror was defective, he made a signal which he then broke off and it was at night.

5. Gibbs J observed that:[124]

   the mirror, affected as it was by the vibration of the cycle, provided quite inadequate information as to what vehicles were on the roadway behind him. The respondent was fully aware of the unreliability of the vibrating mirror. He could not safely assume, from what he saw in the mirror, that the only vehicle behind him was Kinnear's cycle (the person the respondent was riding with), and that it was safe to make the turn.  It was submitted that the respondent could not have been expected to foresee that the semi-trailer, which had been overtaken two miles before, had now caught up with him.  That seems to me to be doubtful, but even if it were correct, the respondent was not entitled to ignore the possibility that some other fast-moving vehicle had come on the scene, because no driver can act on the assumption that there is no other vehicle on the highway without looking to see whether the assumption is correct.  The respondent knew that there was another vehicle behind him, but he was not able to tell, simply from looking in his rear-vision mirror, whether he was right in thinking that the vehicle was Kinnear's cycle.  Further, the respondent could not reasonably make his turn in reliance only on the fact that he had signalled his intention to turn.

   The respondent had to take into account the possibility, which proved to be the fact, that the overtaking driver had not seen the hand signal, and in any case 'there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law.

   [124] Cocks v Sheppard (331) - (332).

6. There is a distinction here because Mr Hesford acknowledges that he was aware of the tray top ute approaching from behind.

7. Further, it seems to me that there is a difference between assuming that the highway is clear (without checking) and assuming that a following driver will see an indicator has been activated for some time, without looking to ensure that such an assumption is not misplaced.

8. The chance of a following vehicle missing a hand signal, which was then withdrawn, at night, is substantially greater than a following vehicle missing, in broad daylight, an indicator activated for at least 5 seconds.

9. Gibbs J concluded:[125]

   The respondent failed to show reasonable care for his own safety in turning across the highway without first looking back along the road to make sure that it was safe to make the turn. It was not reasonable, in the circumstances, to rely entirely on the rear-vision mirror. If the respondent had looked back, he could not have failed to see the well-lit semi-trailer overtaking him, and in those circumstances he should not have turned across the roadway in its path.  In turning as he did, without first looking to see if it was safe to do so, he was guilty of contributory negligence, and the trial judge should have so found. It then becomes necessary to decide to what extent the damages recoverable by the respondent should be reduced having regard to his responsibility for the damage.  Both the appellant and the respondent departed to a considerable degree from the standard of care expected from the reasonable man, and the actions of both parties contributed substantially to cause the collision. However, in all the circumstances, the conduct of the appellant was more culpable than that of the respondent. He in fact knew that the cyclist were ahead of him on the roadway; he was driving a large and heavy, yet fast-moving, vehicle capable of causing great damage if involved in a collision but he failed to keep the careful look‑out that was required of him in the circumstances. The responsibility of the appellant for the collision was greater than that of the respondent. I would reduce the damages recoverable by 25 per cent.

   [125] Cocks v Sheppard (332) - (333).

10. It was plainly more reasonable in the circumstances for Mr Hesford to rely on his mirror, as I find he did once, than it was for the respondent here.  But if he had looked a second time, either in his mirror and/or in turning his head, he could not have failed to see the tray top ute overtaking him, and in those circumstances, he would not have turned across the Highway in its path.

Stephens v Transport Accident Commission

1. In Stephens v Transport Accident Commission,[126] Mr Blackmore was riding his motorbike in a southerly direction along the Midland Highway in Tasmania.  He took up a position behind a Toyota Corolla being driven by the applicant, Ms Stephens, travelling in the same direction.

   [126] Stephens v Transport Accident Commission [2019] VSCA 234.

2. Mr Blackmore commenced to overtake the applicant's vehicle, pulling out into the right‑hand lane as he did so. At the point Mr Blackmore commenced to overtake Ms Stephens' vehicle, broken white lines, permitting him to overtake, divided the Midland Highway.  A speed limit of 60 km per hour applied.

3. Prior to the collision, the applicant commenced turning her vehicle right, intending to enter the Eskleigh Nursing Home Road.  As she did so, the right front of her car collided with Mr Blackmore's motorcycle as Mr Blackmore was attempting to overtake the vehicle.  The only issue before the trial judge was whether the accident was caused by the negligence of Ms Stephens and, if so, whether there should be any apportionment of liability for negligence on the part of Mr Blackmore.

4. As the court noted,[127] the judge found that the primary cause of the collision was Ms Stephens' failure to indicate her intention to make a right-hand turn into Eskleigh Nursing Home Road until immediately prior to commencing the turn.  He determined that Ms Stephens was 90% liable for the collision and that Mr Blackmore was 10% liable.  The appeal was dismissed.

   [127] Stephens v Transport Accident Commission [7].

5. Their Honours (Whelan, T Forrest JJA and Kennedy AJA) held:[128]

   Given these findings ( a reference to findings of fact not appropriately to be disturbed on appeal), an apportionment of 90/10 was open to the trial judge and was not 'manifestly excessive'.  More significantly, it was not 'plainly unjust' or 'unreasonable' within the principles, above.

   [128] Stephens v Transport Accident Commission [70].

6. Their Honours held:[129]

   It is true that Dunn J in Rains v Frost suggested that there is a 'special relationship' between the 'leading vehicle' and the 'following vehicle' with the latter normally being in a better position to observe and avoid creating a hazardous situation. However, he also acknowledged that the relationship 'will vary with the circumstances of the case' and did not suggest that the following car is inevitably liable. Subsequent cases have also emphasized that there is no applicable legal principle, and certainly no special or different duty imposed on a following vehicle other that the duty owed by all road users to exercise reasonable care. Rather, as properly conceded by senior counsel, the cases provide 'guiding factors' only with every case determined on its own facts.

   [129] Stephens v Transport Accident Commission [71].

7. Their Honours continued:[130]

   In any event, the trial judge has not failed to give consideration to the position of Mr Blackmore's motorcycle as a 'following vehicle.' To the contrary, as was also fairly conceded by senior counsel, the trial judge considered what a reasonable person in Mr Blackmore's position ought to have observed and anticipated at [28] of his reasons.  This then led to the 10 per cent figure.

   [130] Stephens v Transport Accident Commission [72].

8. This case is readily distinguishable from the present and is simply an example of an appellate court declining to interfere with findings of fact at first instance.

Braund v Henning

1. In Braund v Henning,[131] the High Court considered an appeal from a unanimous decision of the Full Court of the Supreme Court of Queensland, whereby the court set aside a judgment at first instance in favour of the appellant for damages he suffered when his motorcycle came into collision with a utility motor vehicle driven by the respondent at the intersection of Cook Highway and Reed Road, north of Cairns.  The evidence raises questions of fact upon which the trial judge and the Full Court have disagreed.

   [131] Braund v Henning (1988) 79 ALR 417.

1. The High Court unanimously allowed the appeal and set aside the judgment of the Full Court, but ordered that the judgment entered by the trial judge in favour of the plaintiff be reduced by 40%.

2. The court concluded as follows:[132]

   While we recognise that the driver of a following vehicle which collides with the vehicle which is proceeding ahead of it is usually held primarily liable for the consequences of the collision, we find that the circumstances of the present case, in the context of the construction of the highway in the vicinity of the intersection, dictate a different result.  The north-bound lane nearest to the centre of the highway was for all practical purposes the principal lane for all traffic approaching and passing the intersection and this placed the driver of a vehicle intending to turn into Reed Road under a duty of care to following traffic to make his intention plain.  We think the responsibility for the collision should be shared between the parties in the proportions of 60 per cent to the respondent and 40 per cent to the appellant.

   [132] Braund v Henning (422).

3. So, in this case, even where (contentious) findings of fact warranted conclusions that the driver of the leading vehicle (here, Mr Hesford) was confusingly straddling both lanes (not the case here), reduced speed suddenly (not the case here), so that his speed and manner of driving was such as to reasonably lead following traffic to the belief that he intended to drive through the intersection, but that he suddenly and without any adequate warning or indication of his intention so to do turned right (not the case here), the following driver (here Mr Bald) was still held to be 40% culpable.

4. I accept that it cannot be said that a driver in Mr Bald's position inevitably owes a 'special duty' to a driver in Mr Hesford's position.  The particular facts will dictate who has breached the duty of care that each owes.

Conclusion

1. I am required to ask myself the questions identified in Department of Housing and Works v Smith [No 2].

2. First, what, if anything, would a reasonable person in Mr Hesford's position have done at the intersection with Rhind Road.  That involves an assessment of what would have been reasonable and practicable for him to have done.

3. Second, this inquiry is not to be undertaken in hindsight.  It is necessary to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury.

4. Third, contemporary standards within the community are relevant in determining what is reasonable in the circumstances of a particular case.

5. Fourth, reasonableness may require no response to a foreseeable risk that is not insignificant.

6. Fifth, the occurrence of a foreseeable risk that was not insignificant does not (in and of itself) establish unreasonableness.

7. As I have found, Mr Hesford accelerated to a maximum speed of some 70 km per hour, before slowing down in order to turn right into Rhind Road.  At all relevant times, Mr Bald's speed was approximately 110 km per hour, not an excessive speed in the circumstances.

8. Mr Hesford gave no indication that he was going to turn off to the left as opposed to the right.  He indicated to turn right about 100 m from the intersection and looked in his side mirror at that point.  The indicator was activated for about 5 - 9 seconds.

9. Mr Bald made a last-minute decision, having suddenly realised how slow the vehicle ahead of him was actually travelling.  He failed to see the indicator.

10. Mr Hesford knew that Mr Bald was behind him.  He was entitled to assume that Mr Bald would respond to his indication of intention.  Mr Hesford acknowledged that he was aware of the tray top ute closing in on him from behind.  He gave evidence, which I accept, that his earlier glance revealed that the tray top ute was approaching more rapidly than he had anticipated when he joined the Highway.

11. Given that Mr Hesford was by now travelling slowly on the main highway in this area, with a known speed limit of 110 km per hour, he should have checked his side mirror, and physically turned his head to check his blind spot, before turning.  If he had done so, he would have observed the overtaking vehicle.

12. Although the emergency was not of Mr Hesford's making, a last look would have enabled him to take a course - simply slow from 15 km per hour to a stop - and hold his position for a few seconds, which was manifestly safer than the course he in fact took.

13. It was plainly more reasonable for Mr Hesford to rely on his mirror, as I find he did once, than it was for the respondent in the case of Cocks v Sheppard.  But if he had looked a second time, either in his mirror and/or in turning his head, he could not have failed to see the tray top ute overtaking him, and in those circumstances, he would not have turned across the roadway in its path.

14. I am satisfied that a reasonable person in Mr Hesford's position would have foreseen that his conduct in not adequately looking or checking for a vehicle behind him before making a right‑hand turn involved a risk of injury to other road users.

15. I find that a reasonable person would have taken that last look into the side mirror and turned their head.  Further, given the magnitude of the risk and the degree of the probability of its occurrence, a reasonable person in Mr Hesford's position would have delayed turning right until the car that he knew had been behind him, and was travelling very fast, had either passed him or was sufficiently far behind him not to pose a hazard.

16. The risk of the sort of collision that in fact occurred was not far‑fetched or fanciful, but rather was real and therefore foreseeable.  Particular 3.3 of the particulars of negligence has been made out.

Causation

1. It is for Mr Bald to prove factual causation: s 5C(1)(a) and s 5D of the CLA. Section 5C is in the same terms as the provision the High Court considered in Adeels Palace Pty Ltd v Moubarak.[133]  As held in Adeels,[134] factual causation is determined by application of the 'but for' test.  That is, it is necessary to ask whether, 'but for' the act or omission, the harm would have occurred.

   [133] Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420.

   [134] Adeels Palace Pty Ltd v Moubarak [45].

2. I am quite satisfied that, but for the omission to maintain a proper lookout, the harm would not have occurred.  If Mr Hesford had adequately looked for an overtaking vehicle prior to making the right‑hand turn he would have seen the tray top ute and would not have driven into its path.  He would, no doubt, have been aggrieved, to put it mildly, at the other party's driving, but he would have stopped what he was doing.

3. I find that the established particular of negligence (particular 3.3) caused Mr Bald's injuries.

Contributory negligence

1. I turn then to the issue of contributory negligence.

2. As was said in British Fame (Owners) v MacGregor (Owners):[135]

   A finding on a question of apportionment, as between a defendant who has been found to be negligent and a plaintiff who has been found guilty of contributory negligence, is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations.  It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds.

Statutory Provisions

[135] British Fame (Owners) v MacGregor (Owners) [1943] AC 197, 201, cited in Gorman v Scofield [2008] WASCA 78 [21].

1. Section 5K of the CLA provides:

   5KStandard 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.

2. The 'applicable principles' referred to in s 5K(1) are those found in s 5B. Thus, the standard of care for contributory negligence is the same as it is for negligence itself, save that contributory negligence of a plaintiff is to be assessed against the risk of harm to himself or herself rather than the risk of harm to others.

3. Section 4(1) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) provides:

   (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.

4. The onus of establishing contributory negligence is on the defendant.

5. 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.[136]

   [136] Apostolic Church Australia Ltd v Dixon [2018] WASCA 146 [70], citing Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492.

6. As Gleeson CJ, McHugh, Gummow and Hayne JJ held in Astley v Austrust Ltd:[137]

   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.

   [137] Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1 [30].

Conclusion on contributory negligence

1. It was reasonably foreseeable to a person in Mr Bald's position that overtaking to the right, at 110 km per hour, a large vehicle that was slowing down and had been indicating to the right for about 5 ‑ 9 seconds might cause serious injury, or indeed death, to himself and his front seat passenger.

2. I find that Mr Bald's own negligence far more substantially contributed to the accident and to the injuries that he received than Mr Hesford's negligence.  For the reasons I have given, Mr Bald's conduct fell very appreciably below the standard of a person acting reasonably for his safety.  The defendant has comfortably established contributory negligence.

Apportionment of damages

1. Having determined that Mr Bald was contributorily negligent, it is necessary for me to apportion the liability, reducing the damages that would otherwise be recoverable by Mr Bald to such extent as I consider just, in accordance with the degree of negligence attributable to him and the relative importance of the acts of the parties in causing the damage.

2. It is necessary to apportion responsibility for the harm caused to Mr Bald according to s 4 of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA).

3. A finding on a question of apportionment, as between a defendant who has been found to be negligent and a plaintiff who has been found guilty of contributory negligence, is a finding upon a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations.[138]

   [138] O'Connor v Insurance Commission of Western Australia [2016] WASCA 95 [62] (O'Connor) (Buss JA, McLure P & Mazza JA agreeing).

4. An assessment of the culpability of a plaintiff and a defendant, for the purposes of apportionment, requires a consideration of the relative importance of the conduct of each party in causing the damage.  The whole conduct of each negligent party in relation to the circumstances of the accident must be subjected to comparative examination.[139]

   [139] O'Connor [61].

5. In the circumstances that I have found, I apportion blame to Mr Hesford at 20% and Mr Bald at 80%.

Overall conclusion

1. I am advised that quantum has been agreed at $500,000 in addition to workers' compensation paid to the plaintiff by CGU Workers' Compensation and/or Farmers Centre (WA) Pty Ltd in the sum of $328,384.24.

2. Accordingly, there will be judgment for Mr Bald apportioned to 20% to him which is $165,676.85.

3. I will hear from the parties as to any further orders that should be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

ES

Associate to Judge Troy

8 OCTOBER 2024