Bolton v Latham

[2013] NSWDC 186

District Court

New South Wales

Medium Neutral Citation:	Bolton v Latham [2013] NSWDC 186
Hearing dates:	09/10/2013, 10/10/2013
Decision date:	10 October 2013
Jurisdiction:	Civil
Before:	Elkaim SC DCJ
Decision:	Judgment for the plaintiff in the sum of $700,000
Catchwords:	Personal injury, cyclist riding into open van door, contributory negligence.
Legislation Cited:	Motor Accidents Compensation Act 1999 Civil Liability Act 2002
Cases Cited:	Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Category:	Principal judgment
Parties:	Heather Bolton (Plaintiff) Hugh Latham (Defendant)
Representation:	D Hooke SC and D Morgan (Plaintiff) M A Cleary (Defendant) Garling Lawyers (Plaintiff) McInnes Wilson Lawyers (Defendant)
File Number(s):	2012/00332586
Publication restriction:	No

Judgment

1. The plaintiff was injured as a result of the defendant's negligence on 29 August 2010. She sued for damages under the Motor Accidents Compensation Act 1999. Prior to the matter coming on for hearing breach of duty of care was admitted by the defendant and damages were agreed in the sum of $700,000. The only contentious issue remaining was whether the plaintiff had been guilty of contributory negligence.

1. As a result of the admissions and agreements the hearing took an unusual course in that the defendant gave evidence before the plaintiff. A police officer that attended the scene also gave oral evidence.

1. The defendant was the driver of a white van similar to the vehicle depicted in Exhibit 1. Notably there were no windows behind the doors. There were windows at the back. The defendant had driven along Pittwater Road from Narrabeen to Collaroy. He was a surfer and had his surfboard in the van.

1. The plaintiff was a cyclist travelling with a group of five friends riding in the same direction (south) as the defendant, also along Pittwater road.

1. The roadway at the relevant place was made up of three lanes, one of them being a bus lane, which was marked in red. The bus lane was 3.5m wide. The other two lanes were 3.35m wide (Exhibit 8, photograph 3). The roadway leading up to the accident scene went up an incline to a crest, at the same time as making a right hand curve, and then descended downwards and also becoming straight. The defendant said that he parked his vehicle at the head of a line of parked cars in the position of the silver utility shown in Exhibit 3. The plaintiff thought the van was parked a little further down the road but agreed it was in approximately the position marked in photograph 2 of Exhibit 8.

1. According to the defendant, he pulled over and parked. The left side wheels of his vehicle were touching the kerb. He took his keys out and looked over his left shoulder into the back of the van to check if his surfboard had moved. He then looked in the mirror on his right side. He saw nothing in the mirror; no vehicles, no pedestrians and no cyclists. He opened the door to the extent of about a foot, with his hand still on the door. It was not opened wide enough for him to get out when he felt an impact on the edge of the door. He saw a bicycle rider graze the side of the door and then "career" into the middle of the road. The bicycle came to rest about 20m to 30m ahead in the bus lane. The rider came to rest 30m to 40m from the van, but in the middle lane.

1. The defendant said a group of riders arrived. They spoke to him in an aggressive fashion. He went up the hill to stop traffic. The police and an ambulance attended.

1. According to the plaintiff she and her cycling friends came to a halt at a traffic light before the hill going up to the crest. This was about 250m from the accident site (Exhibit C). There was a steady stream of traffic travelling in the two available southbound lanes. A cyclist named Tina moved ahead when the lights turned green. By the time the plaintiff reached the top of the hill and began her descent Tina was about 30m ahead. The remaining cyclists were behind the plaintiff but she did not know how far behind they were. The plaintiff said she reached a speed of about 30kph, although accepted that she had told the police officer her speed was approximately 35kph. I do not see any relevant difference between the two approximate speeds.

1. The plaintiff said that as she descended the hill there were two pedestrians carrying surfboards walking up the hill in the bus lane and directly in her path. There was a good deal of traffic on the road but, after looking to her right, she was able to go into the adjoining lane and then, after passing the pedestrians, return into the bus lane. She made the decision, based on her safety, to be as close to the centre lane as possible but remain within the bus lane because of the traffic that was travelling in her direction. She noticed the white van parked ahead of her as she descended the hill.

1. It was submitted by the defendant that the plaintiff's evidence about the flow of traffic should not be accepted. There was no evidence to the contrary. The defendant could not recall the level of traffic. The defendant relied on the plaintiff coming to rest in the middle lane and not being run over as an indication that there could not have been traffic in that lane. The prima facie logic of this submission is defeated by the possibility that there was a break in the traffic due to the traffic lights some 250m before the collision site, there was a chance break in the traffic or that the plaintiff was simply lucky. I note that the defendant was directed by the other riders to stop the traffic coming down the hill.

1. The defendant submitted that an inference should be drawn against the plaintiff for the failure to call any of the other riders. I disagree. The riders are independent witnesses who could just as easily have fallen into the defendant's camp. Further, the plaintiff was asked no questions about the identity and availability of the riders.

1. The plaintiff did not remember the collision but she said she came to rest about 3m from the van. A statement taken from a driver in the median strip lane indicated that the van's door was opened when the cyclist was about 1m from the door (Exhibit E).

1. The plaintiff accepted that if the door had only been opened to the extent of about 40cm then if she was travelling where she said she was, she would have missed the door. It follows that either the plaintiff was much closer to the van or the door was opened to a greater extent than one foot or 40cm. In my view, the latter was the case.

1. The plaintiff was a very impressive witness. She gave evidence about her training in safety, the need for vigilance in respect of parked vehicles and the necessity to check for any form of life in vehicles when passing them. The plaintiff gave a distinct impression of a person who gave full effect to her safety training.

1. I accept the plaintiff's evidence that she was riding as far as reasonably possible to the right of the bus lane and was therefore significantly more than 40cm from the side of the vehicle. I note here that the police officer measured the distance from the side of the van to the end of the bus lane at 1.5m.

1. I am satisfied that the defendant must have opened his door significantly more than one foot or 40cm.

1. There were elements of the defendant's evidence which assisted me in rejecting important parts of his case:

(a)   The defendant said that he saw nothing in his side mirror. This seems quite extraordinary having regard to the presence of pedestrians and the extent of traffic on the road. It is indicative of the defendant not looking in his mirror at all before opening the door, or at best only glancing at the mirror.

(b)   The defendant's estimate of the distance down the road that the plaintiff came to rest is simply unbelievable. While I accept that the plaintiff may be mistaken in her estimate as a result of the shock and pain that she was suffering I cannot contemplate any basis upon which she might have ended up some 40m down the road.

(c)   The defendant did not take the opportunity to tell the police officer of the limited extent he had opened his door (Exhibit 5). He said that he knew the officer was concerned with fault and that he did not think he was at fault. I do not think his case is assisted by his statement to the investigator (Exhibit 4), which was not signed and was initially barely recalled by the plaintiff.

1. The suggested contributory negligence of the plaintiff was threefold:

(a)   Riding too close to the parked vehicles.

(b)   Not taking into account that the van had no side windows so that the presence of occupants could not be ascertained.

(c)   Not using the middle lane.

1. Contributory negligence is to be looked at in terms of Section 5R of the Civil Liability Act 2002 which in turn brings into consideration Section 5B. For present purposes, however, the fundamental enquiry is whether the plaintiff acted unreasonably in the manner that she rode her bicycle.

1. I have already found that the plaintiff was not travelling at a distance alongside the van that would have brought her into collision with the door if it was only opened to the extent of 40cm. I am satisfied that, as she said, she was travelling as close as reasonably possible to the right side of the bus lane.

1. As to the suggestion that she should have taken extra care because the van had no side windows, one wonders what it was that she might have done. She could hardly be expected to slow to a halt every time she passed a commercial vehicle that was parked on the side of the road. In addition, she was not travelling, in my view, at an excessive speed (even if it was 35kph) and she was taking all reasonable steps to ensure her safety. I would go further as to say that her extent of vigilance was probably more than expected of a reasonable rider.

1. My findings in relation to the traffic in the middle lane make the use of this lane to be an unreasonable, and more dangerous, option.

1. I think this accident was caused solely by the negligence of the defendant who opened his door to its full, or near full, extent having either not looked at all or made at best a casual glance into the side mirror. I do not think there were any steps the plaintiff could have taken to avoid the injuries she suffered.

1. In terms of the enquiry prescribed in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 532 I am satisfied that there was no culpability on the part of the plaintiff in that her actions did not amount to a departure "from the standard of care of the reasonable man". Accordingly, I reject the allegation of contributory negligence.

1. I make the following orders:

(1)   Judgment for the plaintiff in the sum of $700,000.

(2)   The defendant is to pay the plaintiff's costs of the proceedings.

1. I will hear the parties on any special costs orders.

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Decision last updated: 10 October 2013