Caldwell v Ingham - [2005] NSWSC 483

No judgment structure available for this case.

CITATION:
Caldwell v Ingham [2005] NSWSC 483

HEARING DATE(S): 26,27,28,29 April 2005
2,3,4,5,6,9,10,11,12,13 May 2005

JUDGMENT DATE :

17 July 2005

JUDGMENT OF:
Patten AJ at 1

DECISION:
See paragraph 327

LEGISLATION CITED:
Civil Liability Act 2002
Motor Accidents Act 1988

PARTIES:
Garry Caldwell - Plaintiff
Bronwen Ingham - First Defendant - Cross Claimant
Road and Traffic Authority of NSW - Second Defendant - Cross Defendant.

FILE NUMBER(S):
SC 20138/04

COUNSEL:
Mr R McIwaine SC with J Davidson - Plaintiff
Mr A Renshaw - First Defendant
Mr T Barrett - Second Defendant.

SOLICITORS:
Schrader & Associates
Henry Davis York
Sparke Helmore

LOWER COURT JURISDICTION:
District Court

- 144 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Patten AJ

27 July 2005

No: 20138 of 2004
Garry Ralph Caldwell v Bronwen Clare Ingham & Anor.

JUDGMENT:

INTRODUCTION:

1 His Honour: The Plaintiff (Mr Caldwell) brings this action to recover damages for injuries allegedly suffered about midnight on 11/12 October 1997, when the motorcycle he was riding collided with a Nissan Patrol 4WD vehicle driven by the First Defendant (Ms Ingham) at the intersection of the Pacific Highway with College Crescent and Pretoria Parade, Hornsby (the Intersection).

2 The proceedings were commenced by the filing of a Statement of Claim in the District Court on 10 May 1999. Only Ms Ingham was named as defendant. However, she, by Cross-Claim filed 23 January 2002, joined the Roads and Traffic Authority of NSW as a Cross-Defendant. I will, hereafter, refer to that Authority as RTA, which may be taken to encompass, where relevant, its predecessor, the Department of Main Roads. RTA was, by Amended Statement of Claim filed 28 January 2004, joined as a second Defendant and on 8 April 2004 an order was made transferring the matter into this court. Ms Ingham’s Amended Defence admitted breach of duty of care, but alleged contributory negligence.

3 The allegations by Mr Caldwell and Ms Ingham against RTA concerned the design, control, installation, maintenance and operation of traffic signals at the intersection. RTA denied negligence, asserted that the proceedings against it were subject to the provisions of the Civil Liability Act, and alleged contributory negligence against Mr Caldwell.

4 It is convenient to deal at this stage with RTA’s contention that Mr Caldwell’s action against it is governed by the Civil Liability Act. Mr McIlwaine SC, who appeared with Mr Davidson for Mr Caldwell, argued the contrary.

5 The Civil Liability Act commenced on 20 March 2002. Schedule 1 Savings and Transitional Provisions provides by clause 2(1) that Pt 2 of the Act regulating personal injury damages applies to an injury received whether before or after the commencement of the Act. However, by sub-clause (2) Pt 2 of the Act does not apply to, or in respect of, an award of damages in proceedings commenced in a court before the commencement of the Act, that is before 20 March 2002.

6 Relevantly, the question is whether the proceedings against RTA are to be taken to have commenced when the original action against Ms Ingham was commenced, viz 10 May 1999, in which case the Civil Liability Act would plainly not apply, when RTA was joined as a Cross Defendant on 23 January 2002, again a date before the Civil Liability Act commenced, or on 28 January 2004, when the Amended Statement of Claim joining RTA was filed.

7 The precise point was decided by Studdert J in George v Lifese Steel Erections Pty Ltd (2003) NSWSC 1146. His Honour held, in accordance with SCR Pt 8 r 11(3) similar in effect to Pt 7 r 11(3) of the District Court Rules pursuant to which the Statement of Claim herein was amended that the action against a second defendant joined as such after the commencement of the Civil Liability Act was governed by that statue even though the second defendant had become a party as a cross-defendant before the commencement of the Act. As a matter of judicial comity and in accordance with statements contained in such cases as the recent decision of the Full Court of the Federal Court Minister for Immigration & Multicultural & Indigenous Affairs v Szans (2005) FCAFC 41, I think I should accept and follow the reasoning of Studdert J. Although Mr McIlwaine also based his submission on Pt 7 r 11(2) of the District Court Rules, I do not think that the subrule, which deals with the substitution of a party, is applicable to this case. Accordingly, I hold that Mr Caldwell’s action against RTA is governed by the Civil Liability Act. The action against Ms Ingham is, of course, subject to the Motor Accidents Act.

8 Before proceeding to a consideration of the evidence, it is appropriate to set out several matters, which are not in contention.

· At the intersection the Pacific Highway makes virtually a right angle turn. Although it runs generally northward from Sydney, at the intersection traffic out of Sydney changes from a westerly direction to a northerly direction. Pretoria Parade enters the intersection from the west and College Crescent from the south.

· The intersection is controlled by traffic lights, first installed in 1975. The phasing of the lights was varied in 1982,1994 and 2004.

· The approach to the intersection via College Crescent involves negotiating an uphill incline of between 10% and12%.

· Just before midnight on 11/12 October 1997, Mr Caldwell was riding his Harley Davidson motorcycle with a pillion passenger, Mr Mathew Rook, north in College Crescent towards the intersection, intending to travel through it and continue north on the Pacific Highway.

· At about the same time, Ms Ingham was driving the Nissan Patrol 4WD vehicle with three passengers south on the Pacific Highway towards the intersection, intending to make a right hand turn into Pretoria Parade.

· At the time the phasing of the traffic lights was such that a right hand turn from the highway, travelling south into Pretoria Parade was permitted, either as a “filtered “ turn, that is a turn between northbound traffic in College Crescent proceeding north into the Pacific Highway, or on a right hand turn green arrow which appeared, but only if the volume of traffic required it, at the end of the phase, permitting a filtered turn.

· Ms Ingham brought her vehicle to a halt at the stop-line and then proceeded into the intersection, while two northbound vehicles passed. Following this she commenced her turn into Pretoria Parade.

· Ms Ingham’s vehicle was struck within the intersection by the motorcycle driven by Mr Caldwell, the point of impact being about midway along the nearside of her vehicle.

· As Mr Caldwell approached the intersection the traffic lights facing him were green but they changed to amber before he entered the intersection.

· Ms Ingham was 17 years of age and had received a provisional drivers licence only about 2 weeks previously.

· Mr Caldwell was aged 28 and was a reasonably experienced motorcycle driver, although his traffic record was poor.

THE ACCIDENT ACCORDING TO Mr CALDWELL:

9 Mr Caldwell, in the witness box, added little if anything to what is stated above, claiming no memory of the accident. Mr Rook, was also said to have no recollection, and counsel for neither Ms Ingham nor RTA challenged this. He was not called to give evidence. Mr Caldwell said that on 11 October, which was a Saturday, he met Mr Rook, sometime after lunch. They remained in each others company until the accident. According to Mr Caldwell, he remembers leaving Mr Rook’s home at Pennant Hills with Mr Rook as his pillion passenger shortly before midnight. He remembers driving a short distance, but said his next recollection is of being in hospital. The distance between Mr Rook’s home and the intersection was about 5 kilometres.

Ms INGHAM AND HER PASSENGERS:

10 Ms Ingham, now a registered nurse working in the UK, but in 1997 a student, participated in a record of interview with police in January 1998, Ex F. At the accident she was driving her parent’s manual vehicle for which she was licensed.

11 She told police that she was travelling south in the Pacific Highway, intending to turn right into Pretoria Parade. She said she could not recall the colour of the lights as she approached the intersection. Asked to state what happened she replied:

“But I pulled into the right-hand lane, so I indicated and pulled over. And then, as I was coming towards, down like, before the white lines, two cars came up and over the hill and then I think a car turned after that. And they turned right into Pretoria. Then I came down to the intersection and I pulled right down in the intersection where my driving instructor has told me to go. And I can’t recall if I stopped or if I crawled down towards the intersection. And then I checked to see if anything was coming up the road and as I was turning my light was going orange. And then as I was on, as I was turning again and I looked at the lights, I checked to see anything again and then as I was right angles, that’s when the motor bike come up and hit. And then, the front of the car got pushed into the gutters, like not into the gutter but towards the gutter and the back pushed out. And then I just stalled, the guy got in, you know, put it into gear and …………………….. And then I got out and, I checked to see if the girl behind me was all right. And she was fine. And then I went up and saw the guy was on the road and talked to one of them and asked if, to see if he was alright. But I had no response from him. And then two first aiders came over and said they’d take care of it and then at that stage, Adam, the other person in the car had gone and called an ambulance. And then the police arrived.”

12 In answer to a later question, she said she was in first or second gear at impact. Asked at what stage in her turn she saw the motorcycle, she replied, “No, I didn’t see the motorcycle”. At the time of impact, she said her vehicle was at right angles to traffic coming up College Crescent.

13 Ms Ingham gave evidence at the hearing. Cross-examination revealed that she was familiar with the intersection during daylight and that her driving instructor had pointed out the need to position herself where she could see northbound traffic in College Crescent, before turning right from the Pacific Highway into Pretoria Parade. She agreed that the further one went into the intersection before commencing to turn, the better the view of approaching traffic in College Crescent.

14 She told Mr Barrett, counsel for RTA, that she came to a stop, or near stop, at a position where she had a view down College Crescent and which was to her left of the prolongation of the College Crescent median strip. She allowed two cars, approaching in College Crescent, to pass before commencing to turn, at slow speed. As she did so, the lights facing her turned to amber.

15 For completeness, it is appropriate to record that, on the night of the accident, Ms Ingham was interviewed at the scene by Senior Constable Patricia Thomson, who recorded an unsigned interview with Ms Ingham as follows:

“I said to her, “Were you the driver of Motor Vehicle Registered No. RIV-256 at the time of the collision?” She said, “Yep”. I said, “What happened?” She said, “I was driving my Mum’s vehicle south in Pacific Highway in the right hand lane. (Ingham indicated the median strip right turn arrow lane) I was slowing down, I went into second gear and I slowed down and stopped, before I turned, I was indicating, you have to stop because of the hill, you have to see if anything is coming. I looked and there was nothing. I turned and the light was going orange and just as I turned the motorcycle comes flying up. I just got me and the front passenger around and the motorcycle just smashed into me. It just pushed me down the road and I had a look and just stopped it where it was”. I then said to her, “Did you try and brake? She said, “No, like he was going that fast, all I saw was the flashing lights. I don’t know what I saw, I didn’t see him till he hit me”.”

16 The passengers in Ms Ingham’s vehicle were Kate Gledhill, Adam Rojas, and Matthew Ostle, all of whom gave evidence. Ms Gledhill, sitting in the rear, near side seat, was not paying particular attention to Ms Ingham’s driving but saw the motor cycle immediately before impact, heading for the door next to which she was sitting. She said that the driver’s head actually came through the window in the impact and struck her.

17 Mr Ostle was also a rear seat passenger. He made a statement to police on 31 December 1997, Ex 1D-8, which included:

“We were travelling along the Pacific Highway at Hornsby. As we were coming up to the lights at the intersection with Pacific Highway, College Crescent and Pretoria Avenue (sic) I saw the lights were red, but changed to green as we got to the intersection. It was the circle light that changed. There had been a red arrow showing with the red circle, but when they changed to green the arrow was not showing. Bronwen was going to turn right and as she came up behind a car that was stopped at the intersection, also turning right, this car has turned.

Bronwen came to a stop in the intersection, and waited to make her right turn. Two cars have passed, and as they did, the traffic lights changed to yellow, with a yellow circle and arrow showing. Bronwen paused for a second and I looked and saw nothing coming, then she commenced to make her turn.

Bronwen had turned the car so it was across the oncoming lanes, basically had finished her turn and was heading straight into Pretoria Avenue (sic). I turned and looked down towards my left, down College Crescent, and I saw a headlight coming towards us, and then the front part up to the fuel tank of the bike. This bike has veered to its left, as it trying to go around the front of Bronwen’s car, then came straight back in again.

The bike impacted with the car between the front and back doors, the bike has swung back hitting the rear portion of the truck at the same time the truck (sic) moving slightly to the right. When the impact happened, there was the bright light of the headlight and glass shattering and covering everyone. I heard a bang over the roof and thought one of the people on the bike had gone over the car.

The next thing I know we had rolled forward a couple of metres, I looked at Kate and saw she was bleeding from cuts to her head. I turned around and looked out the back window and saw the bike on fire. I got out the car and went over to the people from the bike. The bike was lying in the intersection, and the other guy was on the right hand side of the road, near the median strip, near the petrol station.”

18 In cross-examination by Mr Barrett, Mr Ostle said that he was paying attention to Ms Ingham’s driving from his position in the back seat. He observed the passage of 2 cars up College Crescent and through the intersection while Ms Ingham waited. That observation was from a position where he could see “a reasonable distance down College Crescent, as far as I could see there was nothing coming after the two cars”. He agreed with Mr Barrett, as I understand his answer, that where Ms Ingham commenced to turn was level with the lanes in Pretoria Parade into which she intended to move.

19 Mr Rojas was the front seat passenger in Ms Ingham’s vehicle. He also made a statement to police on 31 December 1997, Ex 1D-10. He said:

“We were travelling along the Pacific Highway and were heading to a party in Hornsby. Bronwen moved into the right turn lane so as to turn right from the Pacific Highway into Pretoria Avenue (sic). As we approached the intersection which is also with College Crescent, I saw the lights facing us were green. I remember Bronwen slowing down, to a crawl. I can’t recollect if she brought the car to a full stop or not.

I don’t remember if there were any cars in front of us waiting to turn, or if any cars passed us coming in the opposite direction. Bronwen entered the intersection. I could not see anything coming towards us and as Bronwen started to turn right into Pretoria Avenue, the traffic lights changed from green to amber. There was no arrow at all only the green circle.

As we were about the middle of the two traffic lanes we were turning across, I saw a single headlight crest the hill. I turned briefly away and on looking back, saw a bright light, then felt and heard the impact.”

20 Ms Ingham and the occupants of her vehicle were all quite impressive witnesses, whose honesty and reliability I do not doubt. It can, I think, be concluded that she entered the intersection cautiously; that she proceeded to a position about level with the west-bound lanes of Pretoria Parade, from where she had some view down College Crescent and that after looking, at least once, and waiting for 2 other cars travelling north to pass, proceeded at a slow, steady pace to make a right turn. For whatever reason, she simply failed to see Mr Caldwell’s motorcycle. This failure, at least, constituted a breach of duty of care on her part, as Mr Caldwell’s cycle was obviously there to be seen. College Crescent as it proceeded south from the intersection was straight for at least 200 metres.

THE POLICE INVESTIGATION:

21 Sergeant Peter Jenkins of the Crash Investigation Unit, arrived at the scene of the accident at 12.54 am on 12 October 1997. In his statement Ex. E, he described the intersection relevantly to this case:

“Southbound traffic on the Pacific Highway can continue to travel on the Highway by the provision of two left lanes. Traffic wishing to continue into College Crescent is provided with one through lane, with a right turn lane provided for Pretoria Avenue (sic) bound traffic. The through lanes are separated from these other lanes by a raised concrete traffic island.

North bound traffic in College Crescent are provided with two traffic lanes, commencing south of the intersection. A constant uphill gradient is evident for north bound traffic in College Crescent which becomes less at the intersection, which is virtually level.

The area is well lit by mercury vapour lighting which was operating at the time of my arrival. Visibility was excellent. The intersection is controlled by traffic control light signals, which were turned off at the time of my arrival, the intersection being worked by Police Officers.

A directional arrow is provided with these traffic signals to assist vehicles wishing to turn right from the Pacific Highway into Pretoria Avenue (sic). Three general phasings operate regarding right turn traffic. Firstly the lights can change to a green circle and green arrow. Secondly, a green circle only and thirdly a green circle with red arrow, which after a set time fades to a green circle only.”

22 Sergeant Jenkins observed Ms Ingham’s vehicle standing in Pretoria Parade with extensive damage to the near side, commencing at the rear of the front wheel and extending to the front of the rear wheel arch. Nearby, he observed Mr Caldwell‘s motorcycle also extensively damaged and partly burned out.

23 He located a single tyre burn mark commencing “adjacent lane 2 of College Crescent within the pedestrian crossing and continuing into the intersection”. The mark was 8.1m in length and straight. It was consistent with being made by the rear wheel of a motorcycle. He established the point of impact as about 1 metre past the northern extremity of the burn mark. Photographs of the scene were taken in his presence. He said that the speed limit applicable to the intersection and its approaches was 60 KPH.

THE TRAFFIC ENGINEERS:

24 Four experienced and highly qualified traffic engineers gave evidence in the case. Their evidence was directed to two issues, namely, whether the phasing or sequencing of the traffic lights indicated a breach by RTA of its duty of care to road users, and whether Mr Caldwell failed to take reasonable care for his own safety. Each of the engineers provided reports and gave oral evidence.

25 Mr Roger Stuart-Smith was qualified in Mr Caldwell’s case and he provided six reports, some in response to reports by other engineers. The first dated 22 November 1999 was confined to the circumstances of the accident as between Mr Caldwell and Ms Ingham. He summarised his conclusions:

“1. Ms Ingham should have been aware that Mr Caldwell was approaching and delayed her turn until after he passed.

2. Analyses based on the material available indicate that Mr Caldwell was likely to have been travelling at approximately 60km/h as he approached the intersection. There is no material available to indicate that Mr Caldwell was travelling faster than this speed.

3. Once Ms Ingham commenced to move, Mr Caldwell would not have had enough time to swerve or brake to avoid a collision.

4. The lights facing Mr Caldwell most likely changed to yellow when he was too close to the intersection to be able to stop at the stop line. Consequently, it was appropriate for him to enter the intersection.

5. The actions of Ms Ingham, combined with the poor road geometry at the site, can be considered to have been the contributing factors for the crash. There is no material available to indicate that Mr Caldwell’s actions contributed to the collision.”

26 Mr Stuart-Smith estimated Ms Ingham’s speed at point of impact as around 18kmh, accepting her statement that she commenced to turn “right down” into the intersection and then moved right “just taking my time”.

27 As to the motorcycle’s speed he said it could be calculated either by estimates of vehicle deformation or by principles of momentum. Using what he conceded were only estimated measurements of deformation of the motorcycle and the Nissan, he concluded that 47kph should be regarded as an appropriate impact speed. Using the “momentum method”, based on the masses of the 2 vehicles and their post impact velocities in the direction of travel of the motorcycle, Mr Stuart-Smith calculated the motorcycle’s impact speed at approximately 40kp/h.

28 From his calculations, Mr Stuart-Smith deduced an approach speed for the motorcycle as follows:

“In the case of Mr Caldwell’s approach, it is apparent that he used his rear brake, which locked the rear wheel, but the extent to which the front brake was used is not known. Consequently his deceleration during braking was likely to have been between 0.3g and 0.85g. A typical deceleration of around 0.6 g, assuming rear wheel lock and moderately effective from brake usage, can be assumed for a typical deceleration.

Based on Newtonian physics, using an impact speed of 47km/h and a deceleration of 0.6 g over 8.1m, a pre-skid approach speed of approximately 58 km/h can be calculated.

Using decelerations higher and lower than 0.6 g give rise to approach speeds above and below 58 km/h.

Whilst there are a number of unknowns, using the best data available, an approach speed of approximately 60 km/h could be considered most likely, however, other speeds in the vicinity of this speed could also be possible.”

29 Under the heading “Intervisibility”, Mr Stuart-Smith discussed other aspects of the collision as follows:

“Southbound Approach

Using a moderate acceleration of 0.25g Ms Ingham would have taken around 2.0 seconds to reach the POI from her turning position. If Mr Caldwell was travelling at 60 km/h, he would have been approximately 33m before the POI when Ms Ingham commenced to turn. This position was approximately 21m before his stop line and is 4m closer than the end of the concrete splitter island shown in photographs 3 and 4. At a higher speed (there is no evidence of a higher approach speed) Mr Caldwell would not have been much beyond the splitter island.

The poor road geometry at the site, where College Crescent rises at a steep grade to a crest at the intersection, requires right turning drivers to specifically place their vehicles in positions within the intersection where oncoming traffic could be seen.

If Ms Ingham had been appropriately placed and looked adequately before moving, she would have seen Mr Caldwell approaching. (Mr Caldwell’s headlight was reported to have been on). Her inability to see the motorcycle must be considered the key contributing factor to the crash.

Northbound Approach.

From Mr Caldwell’s direction, he would have had a view of the top of the Nissan at its turning point as he approached the end of the concrete splitter island. Whether or not a view was possible before this point cannot be determined, since the length of time Ms Ingham was stationary is not known. Nonetheless, with reports that two vehicles in front of Mr Caldwell passed through the intersection, it would have been reasonable for him to assume that southbound vehicles (and Ms Ingham) were giving way and would also do so for him.

At the point at which Ms Ingham commenced to turn, Mr Caldwell had approximately 2 seconds available before the collision. This time would not have been enough for him to avoid a collision by either manoeuvring or braking. It is possible that Mr Caldwell initially attempted to steer around the car before realising that this would not be possible, before he commenced to brake.

Mr Caldwell’s skid of 8.1m would have taken approximately 0.6 seconds. He therefore would have had around 1.4 seconds available from the time Ms Ingham commenced to turn to the time he commenced braking.

At night, a reasonable reaction time could be considered to be around 1.5 seconds. Since Mr Caldwell reacted within this time and possibly attempted to swerve as well, his reaction time must be considered acceptable.

Mr Caldwell could not have been expected to have avoided a crash with only a short period of time available to him. Once Ms Ingham commenced to turn, a collision became inevitable.”

30 The next report in chronological order was that of Mr Fred Schnerring dated 24 January 2000. He was qualified in Ms Ingham’s case. Using methodology based upon damage to the two vehicles, he calculated the impact speed of the motorcycle as between 36 kph and 55kph. From this estimate, he calculated the speed of the motorcycle, in the period prior to impact, as between 54km/h and 68km/h, assuming front and rear wheel braking, and between 50km/h and 65km/h, assuming both front and rear wheel braking.

31 Mr Schnerring thought it likely that Ms Ingham’s acceleration was gentle to moderate and that she probably accelerated to about 0.15g. In light of these calculations or estimations, and an assumption as to where Ms Ingham commenced her turn, which, I think, is slightly to the north of the more probable position and, in light of the evidence of Ms Ingham and Mr Rojas, Mr Schnerring proffered these opinions:

“Time to Impact

The likely crash scenario was therefore that the driver of the 4WD entered the intersection on a green signal and waited for two cars to pass before she commenced her turn. The signals turned to yellow as she commenced her turn. After having travelled 7.5 metres in about 3.2 second, she was struck by the Harley Davidson.

Position of Harley Davidson

The time taken to brake for 8.1 metres (the length of the motorcycle’s skid marks) was about 0.5 seconds. The motorcycle therefore travelled for about 2.7 seconds after the signals changed to yellow (and the driver of the 4WD commenced her turn) to when the motorcycle started skidding.

The pre-crash speed of the Harley Davidson was considered to have been between about 46 and 68 km/h depending on the rider’s pre-crash braking performance. It was considered that the motorcycle’s speed was towards the upper end of this range.

If the motorcycle was travelling at 50km/h, then the motorcycle was therefore about 46 metres from the point of impact. At 60km/h the motorcycle would have been about 53 metres from the point of impact, and at 65 km/h the motorcycle would have been about 57 metres from the point of impact.

Signal Timing

If the crash occurred about 3.2 seconds after the signals turned yellow, then the crash occurred towards end of yellow phase and therefore there was probably sufficient time and distance available for the motorcycle to stop on the yellow signal before entering the intersection.

The typical traffic engineering design value for drivers and riders in urban areas is 1.5 seconds. For a motorcycle rider approaching traffic signals, 1.5 second is considered an appropriate and adequate time to perceive and react to the signals changing to yellow. The rider therefore had about 1.7 seconds of travel time available in which to stop, or about 23 metres at 50km/h or about 31 metres at 65 km/h.

Therefore the motorcycle rider was considered to have had sufficient time and distance to brake to a stop after the signals changed to yellow before entering the intersection.”

32 Mr Schnerring proceeded to comment upon the phasing of the traffic lights at the intersection. He said that to safely cater for a vehicle turning right into Pretoria Parade from the Pacific Highway, 105 metre sight would have allowed the driver of the 4WD adequate time to observe the approaching motorcycle before making her turn. He opined that the design of the signal phasing was inadequate and pointed out, obviously enough, “had a fully controlled right turn phase been provided, then the crash would not have occurred (assuming compliance with red and green turn arrows)”.

33 Dealing with Mr Stuart-Smith’s report of 22 November 1999, Mr Schnerring said that generally he agreed with it. He highlighted some disagreement, however, in the following paragraphs:

“Mr Stuart-Smith said that Ms Ingham accelerated over about 5 metres to the point of impact. However, a perusal of my Figure 2 and his Figure 2 suggests the 4WD probably travelled 7.5 metres to the point of impact (about one and a half car lengths versus one car length).

Accelerating over 7.5 metres at 0.15g gives time of 3.2 second to impact versus Mr Stewart-Smith’s time of about 2 seconds to impact.

As discussed above the distance travelled by the 4WD is sensitive to where the 4WD started turning from. Using a distance of one car length (about five metres) and an acceleration of about 0.15g, gives a time to impact of about 2.6 seconds. At 60km/h, this places the Harley Davidson about 43 metres from the point of impact. At 60km/h, up a ten percent grade, the stopping distance of the Harley Davison was considered to be about 43 metres, sufficient to (just) stop in time to avoid a collision.

Conservation of Momentum Calculations

Mr Stuart-Smith used Conservation of Momentum calculations as one method of estimating the speed of the motorcycle at impact. I do not agree that this method is appropriate in motorcycle crashes involving 4WDs because of the large difference in the masses of the two vehicles. In these situations, the speed estimates for the lighter vehicle are often very sensitive to the post-impact movement of the vehicles and to the pre-crash directions of travel, making it necessary to know precisely the amount of post-impact movement and the pre-crash directions of travel.

From the material reviewed, precise measurements of post-impact movements and pre-crash directions of travel do not appear to have been made, so that the use of conservation of momentum calculations in this crash appears inappropriate.

34 In summary, Mr Schnerring concluded that Mr Caldwell was probably driving at an excessive speed and had sufficient opportunity, when faced with an amber light, to stop before entering the intersection. He also concluded that the design of the phasing of the traffic lights, in so far as it permitted filtered right turns into Pretoria Parade, was inappropriate.

35 Illustrating the sensitivity of outcomes to small variations in assumptions and highlighting, in my opinion, the difficulty of determining which, if any, of the conflicting expert opinions should be accepted, are the final two paragraphs of Mr Schnerring’s report:

However, I consider that the 4WD accelerated more slowly, probably at 0.15g, in which case I consider that the crash probably occurred between 0.6 to 1.2 seconds further, or later into the yellow time (2.6 to 3.2 seconds after the signals changed to yellow), in which case the motorcycle rider probably had sufficient time and distance available in which to stop to avoid a collision, or to stop before entering the intersection.”

36 Mr Stuart-Smith in his second report dated 7 March 2000, considered Mr Schnerring’s report. Broadly, he adhered to his previous views and took issue with Mr Schnerring’s opinion that Mr Caldwell had time to stop before entering the intersection. He included this paragraph:

“The distances calculated in the (Schnerring) Report for distances required to stop are based on braking of 0.8g which, the report stated, can be achieved with (presumably without) loss of control. Whilst this heavy deceleration might be possible, it would be considered unsafe for a rider (with a pillion passenger) to attempt such heavy braking immediately when the traffic lights turned yellow. The chance of an inadvertent problem occurring, considering the lack of occupant protection and the need for both rider and passenger to keep the bike upright, must be considered greater than the possible consequences of travelling through a yellow light (well before its termination). It should be borne in mind that using the (Schnerring) figure of 3.2 seconds, Mr Caldwell could have comfortably passed through the intersection well before the following red light commenced. Also, Traffic Signal timings allow for situations even less straightforward than this case in providing a period of “all-red” after the yellow in case any latecomers are still in the intersection.”

37 Mr Stuart-Smith agreed with Mr Schnerring’s comments regarding the phasing of the traffic lights. As to that he said:

“The (Schnerring) Report considered that the design of the signal phasing was inadequate at the crash site.

The findings in our earlier report where it was noted that southbound visibility at the intersection was restricted and that poor road geometry was a factor in the collision support this conclusion.

From 25m before the southbound Stop Line (see Photograph 1 of our earlier report), sight distance is limited to about 60m (about 10m beyond the far side of the intersection). From the Stop Line, sight distance is limited to around 40 to 50m (see Photograph 2 of our earlier report), whereas from well within the intersection sight distance is not limited.

In this situation with limited sight distance from the Stop Line, the signal phasing at the intersection required Ms Ingham to make a right turn as a “filtered” movement, meaning that she faced a green circle light allowing opposing traffic to flow through the intersection and was required to wait for a gap before turning (she was not successful in finding an adequate gap). Although a phase of the traffic signals at the site allowed for a right turn with a green arrow (Phase D), a filter movement was allowed in Phase C, which was the phase operating at the time of the crash.

The guide to Traffic Engineering Practice, Part 7, Traffic Signals, Austroads, 1993 indicates that a right turn red arrow could have been expected to prevent “filter” turns in the southbound direction. Whilst a similar sight distance problem exists for northbound traffic, right turns are banned in this direction.

Section 6.4 of the Guide, Control of Conflicts includes the following:

(i) The sight distance to oncoming vehicles is inadequate (100m at 50km/h)”

The RTA Traffic Signal Practice – Design, 1992 also states that a right turn filter movement should not be permitted where sight distance is insufficient for the right turn vehicles to filter with safety.

38 Mr Schnerring produced a supplementary report dated 17 February 2000, which explained that the traffic lights at an intersection may fully regulate right hand turns by permitting them only on a green arrow; may permit filtered turns through oncoming traffic at all times; or permit filtered turns at some times and regulate turns at others. He said that the body known as Austroads is the national association of road transport and traffic authorities in Australia and that it is governed by a council representing the Commonwealth, the States, the Territories etc.

39 The next report in chronological order was that dated 7 September 2000 of Mr Schnerring. It did little other than join issue once again with Mr Stuart-Smith. He maintained his view that Mr Caldwell could, and should, have stopped before entering the intersection. After considering factors such as the position of the motor cycle when the lights changed to amber; its estimated speed; its braking distance; and the distance travelled by Ms Ingham after commencing to turn, Mr Schnerring, to my mind, reinforced the difficulties inherent in regarding the expert reports as expressing opinions which may be relied on, when he said:

It should also be noted that the time to impact of 2.0 seconds or 3.2 seconds depends on the distance travelled by the 4WD and its degree of acceleration. Without an on-site reconstruction using an exemplar 4WD (or the 4WD involved in the crash), no certainty can be attributed as to whether 2.0 seconds used by Mr Stuart-Smith should be regarded as having been more likely. I also disagree that using either time (2.0 seconds or 3.2 seconds), that it would not have been possible for the motorcycle rider to stop before the stop line after the lights turned yellow.”

40 A further report by Mr Schnerring dated 6 September 2001 did not, I think, add anything of significance to what he had previously said.

41 The next expert report was that produced by Mr Stuart-Smith on 29 July 2002. It reiterated his previously expressed view that the lights at the intersection should have prohibited right hand filter turns from the highway into Pretoria Parade. He commented that although two design publications the 1992 RTA Signal Practice and the 1993 Guide to Traffic Engineering Practice Part 7 Signals, would specifically prohibit right turn filter movements when sight distance was as limited as it was at this intersection, good engineering practice by 1986, in his opinion, would have anticipated and met the later guidelines.

42 Mr Stuart Smith’s next report of 21 October 2002 restated previous opinions. Focussing on whether Mr Caldwell could, or should, have stopped before entering the intersection, he said:

“It is difficult to understand why the issue of whether Mr Caldwell had sufficient time to stop before reaching the intersection is still being examined. There is overwhelming evidence and material available to support a view that there was insufficient yellow time available for Mr Caldwell to stop, whichever acceleration and distance is used to calculate Ms Ingham’s movement. The evidence supports the likelihood that Mr Caldwell reacted to stop as soon as he saw Ms Ingham commence to move. It is likely that this was just before the change to yellow, which was around 2 seconds before impact.

The reports by Mr Schnerring provided no realistic support for the proposed time for Ms Ingham’s movement. The suggestion in the latest report by Mr Schnerring, in relation to stopping when faced with a yellow light, is an unusual suggestion from a road safety perspective.

Notwithstanding the views of the reports by Mr Schnerring in relation to Mr Caldwell’s possible actions, there is no substantial disagreement in relation to traffic signals design, the actions of Ms Ingham, or the speed of the motorcycle.

On the basis of the material available, there is overwhelming evidence that Mr Caldwell had insufficient time to stop before reaching the stop line, once the lights changed to yellow. Consequently, there is no material available to suggest that the actions of Mr Caldwell were contributing factors to the crash.”

43 On 14 September 2003, Mr Bruce Fishburn, qualified on behalf of RTA, commenced his contributions to the controversy. He confirmed that the original traffic signal layout was placed in service on 18 December 1975 and that an amended system was placed in service in July 1994. This revision gave traffic the option of making filter right turns into Pretoria Parade or waiting for the right turn phase to be activated with the display of a right-turn green arrow.

44 Mr Fishburn said that the amber phase at the signals lasted for 4 seconds under all operating conditions and that there was an all-red period of two seconds between each phase to allow the intersection to clear.

45 In relation to sight distances for drivers turning right into Pretoria Parade, Mr Fishburn said:

“

· Non-restricted sight distance (driver eye height 1.15m) is available from a line located 5m to the north of the stop line at College Crescent. This line is about 13 metres to the south of detector 8. This means that drivers who are waiting to make a right hand turn can either stay on the detector (and so activate the turning phase) or make a “filtered” turn by moving into the intersection.

· A driver of a 4WD (like Ingham’s) is able to enjoy almost unrestricted SD because of the increased eye height from much further to the north.”

46 Mr Fishburn included in his report an extract from the RTA Traffic Accident database for the 5 years from 13 October 1992 to 12 October 1997. He interpreted the extract as showing:

“(i) During this period 13 crashes occurred where a southbound vehicle travelling on the Pacific Highway collided with a northbound vehicle travelling in College Crescent.

(ii) The crash involving Caldwell and Ingham is listed as accident number 981350270 .

(iii) A total of six people have been injured in these crashes over the five year period selected. The Caldwell/Ingham accident contributed half of this number. There have been no fatalities.

(iv) Four crashes occurred at night when the road was wet and the street lights were on.

(v) Four crashes occurred on a dry road at night when the street lights were on.

(vi) Of the thirteen right hand crashes, all but one occurred after 1994 (when the signal phasing was adjusted).

(vii) The total number of crashes at the intersection is 37. Some of these are the result of illegal manoeuvres such as making U-turns and vehicles apparently running the red light.”

47 Reviewing previous reports by Mr Stuart-Smith and Mr Schnerring, Mr Fishburn took issue with Mr Stuart-Smith’s opinion as to the distance travelled by Ms Ingham after commencing to turn, assessing a travel time of around 3.5 to 4.0 seconds, and a distance of about 9 metres. As a consequence, he joined Mr Schnerring in disputing Mr Stuart-Smith’s opinion that Mr Caldwell had insufficient time to avoid the collision by braking or manoeuvring.

48 Dealing with Mr Schnerring’s report of 24 January 2000, Mr Fishburn said:

“Under clause 7 of his report, Schnerring considers “the grade (on College Crescent) restricted an approaching driver’s or rider’s sight distance to traffic on the intersection to about 60 metres. Road users on the highway turning right have a similarly restricted view of traffic approaching from College Crescent”. In my opinion this is an over-simplification of the situation. My measurements have shown that drivers of right turning vehicles entering Pretoria Parade have a good sight distance to northbound College Crescent traffic, once they pass a point that is about 12m from the southern end of detector #8. Northbound traffic in College Crescent has a similarly good view of traffic wanting to turn into Pretoria Parade.

I consider that Schnerring’s estimates of impact are more reliable than those used by Stuart-Smith. I particularly support the allowance made for the impact angle.

I agree with the conclusions of Schnerring “There was probably sufficient time and distance available for the motor cycle to stop on the yellow signal”. This is particularly so because the grade (12.5%) would assist braking.

I do not accept Schnerring’s view about the restricted sight distance. It is my opinion that the method chosen for operating the right hand turn was a clever and most appropriate solution. It offered a filter turn that can be made with a sight distance that greatly exceeded the suggested SSD by the simple expedient of entering the intersection. Otherwise drivers could wait at the stop line for turning traffic and thus call up a turning phase (“D phase”).

My review of the available data supports the conclusion by Schnerring that “the motorcycle was travelling at a speed between 46 and 68 km/h with the most likely speed being at the upper end of this range”. I also support his statement that the “motorcycle rider was considered to be able to stop in about 43 metres”. This support takes into account the fact that I determined the grade in College Crescent to be 12.5% (not 10.00% as stated).

I cannot accept Schnerring’s view about the restricted sight distance.

I cannot support Schnerring’s view that “sight distance between traffic north on College Crescent and traffic turning into Pretoria Parade can be considered sub-standard”. I agree that sight distance is restricted from the Stop line at the end of the right turn bay to a point about 12m to the south of detector #8. This is about the area of the median in Pretoria Parade. Sight distance is fine from that point onwards.

Accordingly, the layout that is in place is a very good solution as it incorporated both a filtered and controlled turn (because both are possible).

The guidance about sight distance given by the manuals is meant to cover situations where the only distance available is the figure cited. This is not the case here.

I note (and agree with) Schnerring’s comment “the crash would not have occurred assuming compliance with the traffic signals”.”

49 As to whether the right turn into Pretoria Parade should be regulated by full time turning arrows, Mr Fishburn said:

“The implication is that with such a full time control the crash would have been avoided. However, such a conclusion depends on observance of the traffic signals at all time by all drivers (which demonstrably does not occur).

The other issue is that all road design involves a trade-off between safety and congestion. The art of road design is to balance these factors and to monitor the outcomes.

The “crash record” does show that thirteen reported crashes have occurred over five years prior to the event. Three people were injured (none fatally) in the earlier crashes during this period. The crash under review here doubles the number of injuries.

The operational performance would also be monitored through the Hornsby Traffic Committee.

It is my opinion that usage of a permanent right turn phase would introduce unwarranted delays and lead to driver frustration and disobedience.”

50 Later in his report, Mr Fishburn commented on traffic signal guidelines and the desirability of allowing filter turns:

“I am a little disturbed by the assertions made by others that because elements of the traffic signal design did not comply with various NAASRA (now Austroads) publications, it was “deficient”. The documents cited are all guidelines that serve a largely administrative purpose. They define the numerical values for various parameters that can then be used without further reference to more senior officers of the various road authorities in Australia and New Zealand. The RTA has its own set of guidelines titled “RTA Traffic Signal Practice – 1992”.

51 His concluding paragraph read:

“Consequently, I consider the design and operation of the traffic signals at this site to be a very clever solution. For drivers who are a bit tentative there is the option to wait for the turning arrow to be activated. This is likely to occur during peak demand associated with the nearby school. At other times (especially in off-peak period) there is plenty of sight distance available by following normal procedures that are followed at sites where no turning phase is provided.”

52 In a supplementary report dated 2 October 2003, Mr Fishburn expanded upon what he said about sight distances in his earlier report:

“The point that I was making in my report is that, inherent in nominating a sight distance figure, is the idea that any restriction would apply across all points on the intersection (such as would occur if the intersection was “hidden” because of the horizontal alignment). It cannot be used at locations where sight distance is restricted at certain spots (such as occurs here). At this intersection, sight distance is restricted at the stop line of the turning bay that stores southbound highway traffic waiting to turn right into Pretoria Parade. However, when a driver enters into the intersection then the sight distance opens up quickly and the distance specified by Austroads is met and then easily exceeded.”

53 Both Mr Schnerring and Mr Stuart-Smith replied to Mr Fishburn. In a report dated 7 October 2003, Mr Schnerring included these paragraphs:

However, drivers do not generally remain stationary at the stop line if there is no red arrow displayed. Based on my specialised knowledge and experience of traffic engineering, drivers move forward into the intersection whilst waiting for a gap in the oncoming traffic. At the subject intersection, a driver moving forward by the usual distance would not have sufficient sight distance ahead. To obtain the necessary sight distance, drivers would need to move forward to the pedestrian crossing across College Crescent. This is a highly unusual position and an unusually long distance beyond the stop line on the Pacific Highway and creates an unusual and more complex right turn manoeuvre.

Furthermore, no specific signs or markings were observed to inform and warn drivers “choosing” to make a filter turn that they needed to position themselves at the far end of the intersection before attempting to turn. Indeed, I am uncertain as to how such information could be unambiguously conveyed to drivers by signs and markings. Therefore, a safer alternative is to fully control all right hand turns and eliminate problems with drivers not positioning themselves at the far end of the intersection before attempting to turn.”

54 Later Mr Schnerring commented:

“It should be noted that Austroads does not indicate how the 100 metres it specified for speed of 50 km/h was determined. A vehicle travelling at 50km/h travels 100 metres in 7.2 seconds. Based on my specialised knowledge of traffic engineering, road safety engineering and accident investigation and research, a 7.2 second gap to oncoming traffic suggests an observation and perception and reaction time of about 3 seconds and a turning time of about 4 seconds. On this basis, a sight distance of 120 metres would be required for a speed limit of 60 km/h. Based on my observations of the site, I consider that the sight distance provided from about the middle of the intersection is less than 120 metres and is inadequate.”

55 As to the remarks made by Mr Fishburn regarding the force of publications including those of Austroads, Mr Schnerring said:

“I am a little disturbed by the assertions made by others that because elements of traffic signal design did not comply with various NAASRA (now Austroads) publications, it was “deficient”. The documents cited are all guidelines that serve a largely administrative purpose”.

I do not understand Mr Fishburn’s comments in this regard. I am familiar with these documents. They are technical documents. Administrative matters are not evidenced in their contents. These documents provide guidance for practitioners about appropriate practices in designing and providing a safe road environment. This includes intersection design and traffic signal design and operation.

In any event, allowing for some judicious and appropriately judged “juggling and fudging” of the 100 metres sight distance requirement for a traffic speed of 50 km/h, such as considering 95 metres adequate for a traffic speed of 60km/h, it is my opinion based on my observations of the site and my specialised knowledge and experience in traffic engineering, accident investigation and research and road safety auditing, that the sight distance is well below even such a “juggled and fudged” sight distance, unless a driver proceeds to about the pedestrian crossing across College Crescent. Such a position in the intersection for a right turn is not normal driving practice.”

56 This report of Mr Schnerring also directed itself to the accident data for the intersection leading up to October 1997. He concluded from such data that, in the period 1991 to 1997, there were 35 recorded accidents between vehicles travelling north in College Crescent and proceeding through the intersection, and vehicles making a right turn into Pretoria Parade. As to the consequences of this, he said:

57 Mr Stuart-Smith in his response to Mr Fishburn included these paragraph:

“The suggestion by Mr Fishburn that a filtered turn involves a significant sight distance (being available) is misleading. It is agreed that, if a driver travels well into the intersection (such as onto the pedestrian crossing at College Street, as suggested by Mr Fishburn), sight distance is adequate.

However, for a conventional right turn path, sight distance is not adequate before the turn is commenced.

Traffic engineering practice relies on drivers following conventional and typical movements. Where these actions are unsafe or inappropriate, control of the movements should be considered.

Should the designers have expected right turning traffic to travel well into the intersection before turning, turn lines indicating the intended path would have been provided.

For Ms Ingham’s movement, there were no turn lines to force drivers to enter a long way into the intersection before turning. There was no right turn ban to prevent filter turns during phase C.

In other words the signal design allowed drivers to follow typical movement paths, which did not have sufficient sight distance. The fact that drivers can (but may not) travel a long way into the intersection before turning is not an adequate traffic engineering response to the problem of poor sight distance.”

58 A fourth traffic engineer, Mr Grant Johnston, qualified for RTA, submitted a report and gave oral evidence. Mr Johnston was also responsible for a computer visualisation report, exhibit 2D-1, portraying scenarios of what might have occurred in the accident, according to where Ms Ingham commenced her turn. Although the report and computer visualisation were interesting, they were not, in my view, of much assistance in resolving the factual issues which need to be resolved.

59 Mr Stuart-Smith, in the course of cross-examination by Mr Barrett, explained his view in relation to sight distances at intersections. There was the following exchange.

“Q. That being the case, is it not logical that the place to measure sight distance from is where the vehicles would likely be turning?

A. Well, this is a matter of interpretation. I am not familiar with the theoretical calculation for the sight distance that's given in the AustRoads, so I don't know whether that was determined from the stop line, but I would think, as a matter of principle, it ought to be taken from either the stop line or a position just beyond the stop line, which is the commencement of a normal right-turn position, and they would be the logical positions that I would think the sight distance should be taken from.

Q. Well, the Motor Vehicle Drivers' Handbook requires a motorist doing a right-hand turn at an uncontrolled intersection to enter into the intersection to a place where a safe sight distance can be discerned?
A. Yes, of course.

Q. And in any given intersection that may not be the same place as any other intersection?

A. Yes.

Q. In this intersection the safe place to do that is well down into the intersection?

A. Yes.

Q. At that point is the very point where it is desirable that there be adequate sight distance?
A. Well, I mean, I certainly wouldn't disagree with that, but it would be my view that it's necessary to have adequate sight distance before reaching that point. There are a number of reasons why.

Q. What's the first reason?

A. Well, let me - it is really encapsulated in one reason, and the reason is basically that a driver making a right turn, entering an intersection, makes the decision to turn right actually before they turn the wheel, and not everybody comes to a stop, and, in the process of moving beyond the stop line to a safe position - and this comes to the crux of the whole problem - well into the intersection it is quite feasible that a driver can get the impression that there are no approaching vehicles, because of the sight distance problem, and consequently be less inclined to look. When they get to that position well into the intersection, they have maybe already made up their minds, so it is a much - they are in a situation where they are programmed already to believe that there may be no vehicles coming.

So it is not - in my view, it is not a satisfactory engineering response to measure a required sight distance from whatever position it is necessary for a car to be able to go to, to achieve it. So it is sort of going around it a bit the wrong way.

In my view the sight distance should be available from any time that the vehicle is able to turn right within the intersection, and it doesn't conflict with the requirements in the traffic handbook, because, I mean, that's obviously - that has to cater for all situations, including situations where there is not adequate sight distance. And it doesn't matter whether the roads, the system, the environment we provide for drivers is adequate or not adequate; we still would like drivers to do the safest thing and, consequently, a requirement like that in the handbook should be there, regardless as to where sight distance should be measured from.

Q. I understand your proposition is that there should be adequate sight distance for each place at which a driver might turn right, regardless of whether it is the best place in the intersection to turn right?

A. Well, that's probably nearly right. I think it should apply at a typical turning path from the entry point to the exit path. So, in this case, I can - I will give you an example. If we look at the RTA plan that's attached as appendix 1 to my report of 22 November 1999 - that's appendix 1 - there should be a fold-out plan. I am sorry, they are smaller copies. It would be my view that a reasonable position to apply the sight distance to would be approximately where the number 8 is. There is a rectangle that can be seen entering the intersection from the top left, coming down, which is the southbound approach, the direction of travel of Ms Ingham, and that rectangle with an 8 and 9 in it is in fact an underground loop detector, which is not visible to motorists, but from somewhere around about where the 8 is, is where a typical right-turning path would then enter Pretoria Parade from, apart from the requirement to enter further down to achieve the sight distance, but that would be where one would expect a vehicle to turn right from if they weren't concerned about sight distance, and I would think that would be a logical and sensible place, from an engineering point of view, to apply it.

Q. Would this be fair comment: it would be very nice if the Austroads standard in 1993 was that clear as to what should be the situation, but in fact you cannot say that that is, in truth, what the standard is saying?

60 Cross examined by Mr Barrett regarding traffic signal guidelines and, in particular, the Austroads guidelines of 1993, there was this exchange:

Q. Can I direct your attention to the extract, in particular clause 6.4.1?
A. Yes.

Q. Can I suggest to you that the correct application of the guide in terms of that clause is to look at the exampled situations, and if you then have a situation that falls within one of those exampled situations that is then necessary to determine whether there is an unsafe turn?
A. Yes.

Q. In essence, once you've reached the situation of looking at the particular example a judgment then has to be made by the engineer as to whether the practice of a filter turn is unsafe?
A. It is a little bit ambiguous how it is actually written there. You are suggesting that the examples given are instances where one looks to see if the example is unsafe. You can also read that sentence to mean that where conditions are unsafe, the arrow needs to be provided, and the examples of these unsafe conditions are the following, so it is possible to read that in those terms. So I agree that it is slightly ambiguous.

Q. With practical engineering in the traffic field, sometimes it is necessary to what I might call tweak the situation to get the best out of a particular intersection in terms of safety and capacity?
A. Yes. There is always a - they are not always able to be achieved, and there is often a trade-off.

Q. In terms of making the trade-off, you look at the guides and you treat them as a guide to good practice, but you don't treat them as necessarily being mandatory?

A. It's not quite. In fact, they are guides to good practice, so the starting position is that you use what is specified in the guide as the criteria for a design, and then if there are problems, such as with capacity, you then look at the necessary trade-offs. So you should start with what is required in the design, and then one can look at whether other factors might have to influence overcoming the design, so that way they form the basis of a good design.

Q. Ultimately that comes down to making a judgment of what is proper for the situation at hand?
A. In that context that I said, of course, yes, which is starting with the design criteria.

Q. The guides respectively describe the criteria in terms of adequate for the Austroads Guide and sufficient for the RTA Traffic Signals Guide in relation to sight distance?
A. Yes.

Q. You don't suggest, do you, that either of guides seeks unrestricted sight distance?
A. No.

Q. The guides also provide, do they not, for relaxation of the requirement to have a prohibition on filter turns during periods of low capacity?
A. Well, they do, but not in the circumstances where it is specified that a right turn ban should be prohibited.

Q. What do you base that proposition on in relation to the guides?
A. Exactly 6.4.1, which is basic, which says that when the practice of filter turns may be unsafe, as detailed in circumstances such as the sight distance to oncoming vehicles is inadequate.

Q. By making that reference you are alluding to what is set out in 6.4.1 to the end of the subparagraph being (a)?
A. Correct.

Q. (b) indicates that in situations where filter turns are desirable to decrease delay in periods of low traffic flow, it is permissible to extinguish the prohibition on filter turns?
A. Well, it puts a "but" in there, and says when they are desirable to decrease delays, et cetera, "but are undesirable during periods of high traffic flows" - so will be undesirable in circumstances during high traffic flows and not necessarily the same as unsafe as detailed in (a). I don't read, and I can't see why if it is deemed to be unsafe and consequently shouldn't be there, that then in certain circumstances we should override it because there are no conditions like you have been putting to me of capacity constraints in periods of low traffic flow. So I don't interpret it that way at all.

Q. Isn't the problem we've got with filter turns during periods of high traffic flow that you've got vehicles wishing to turn right through gaps that may be infrequent and small?
A. That is mainly a capacity problem. It is also a safety problem. It is a different safety problem to the sight distance aspect.

Q. The particular pattern of accident with which we are concerned is vehicles turning right across oncoming traffic?
A. Correct.

Q. And the concern that is being addressed at the moment in terms of the guide is that pattern of accident. Wouldn't you agree that that pattern of accident is more likely to occur in high capacity periods as compared to low capacity periods?
A. Well, I wouldn't know precisely but I wouldn't be surprised if that were the case, but you would expect, basically, more crashes with increased traffic flows.

61 Later in cross examination, Mr Barrett turned to the subject of the variables involved in reaching a conclusion upon the competing opinions of the experts:

“Q. The human eye, in terms of what it can discern, is a much more sophisticated apparatus than anything we record on the media you've just described?
A. Yes.

Q. Now, is this the situation with this accident: that how you explain it is dependent upon the following variables: firstly, the point of impact?
A. Yes.

Q. And where it's located?
A. Yes.

Q. Where it's assumed that Ms Ingham commenced her turn?
A. Well look, that's a variable but it could be, it's not a requirement to be a variable because - the key - the relevant factor is how long she was identifiable as a hazard. And so in the - like, precisely where - yeah, in terms of visible it certainly is a factor, yes.

Q. Well, the place from which she commenced her turn to arrive at the point of impact is fundamental to determining, along with other variables, how long she was a hazard?
A. Well, it's the only way we've got of estimating that. So as far as trying to reconstruct it, that's the only - I agree that's a required variable to attempt to reconstruct it as best we can.

Q. In terms of determining the time to the point of impact that she was a hazard, another variable is acceleration rate?
A. Yeah, even that's - it's more complicated than that. Her acceleration rate, really, her movement, the way she accelerated and moved, yes.

Q. From Mr Caldwell's perspective there are a number of variables that affect the analysis of the accident as well. Firstly, the extent to which he applied his brakes?
A. Yes.

Q. And, in particular, whether that involved both front and back brake or only back brake?
A. We are assuming now, when you say for Mr Caldwell, in analysing Mr Caldwell's actions, you mean attempting to determine his speed and position at various times?

Q. Yes.
A. That's correct, yes.

Q. And that's dependent in part on determining his impact speed?
A. Yes.

Q. And that is dependent in part on an assessment of the crush depth?
A. Of the vehicle?

Q. Of the damage to the Nissan Patrol?
A. It need not be. That's one way of doing it, but there is another way of doing it, which doesn't depend on that which I mentioned earlier.

62 In examination in chief, Mr Schnerring told Mr Renshaw, counsel for Ms Ingham, that in the early 1990’s he was employed by RTA as a traffic and road safety engineer, responsible for the development of road safety audit programs, accident investigation and prevention guidelines and black spot procedures. He defined a black spot as a location where there is a clustering of accidents.

63 Noting that at the intersection there had been 35 accidents similar to the one now under consideration in a period of about 7 years, he said that RTA’s guidelines and procedures indicated that 5 accidents in an urban area, within 3 years, would warrant an investigation.

64 Mr Schnerring was closely cross-examined by Mr Barrett as to the considerations, which, in his experience, affected RTA’s response to an intersection identified as “Black Spot”. Not surprisingly he revealed that there were budgeting constraints and the solving of problems involved cost benefit analysis.

65 He maintained that the proven method of overcoming a problem with “right turn against” accidents, as the subject accident was described, lay in full, rather than partial control of right hand turns, that is by permitting right hand turns only, on a green arrow. He suggested that full control would not cost more than partial control and conceded only a minor adverse effect on the capacity of the intersection to handle traffic. Safety would always be the overriding consideration. There followed this exchange:

“Q. What I will put to you is this, that it was an appropriate traffic engineer's response to the accident history that existed up until 1994 to institute a D phase in circumstances where the institution of a fully controlled right-hand turn would have had adverse consequences to the traffic capacity, and to see whether that change had a sufficient effect before discerning to make a more rigorous treatment.
A. Am I to assume that there is some deleterious traffic problem by instituting a fully controlled right turn phase?

Q. Yes.
A. Right. I will pretend to be the traffic engineer. It might be easier to do it that way. I will assume that there is a serious traffic capacity problem. I therefore institute a partial - I leave the filter in and bring up the D phase at the end to see if that works. I would then be obliged to monitor that very, very closely to see what it is doing. To be honest, the accident history shows that the accident pattern continued.

Q. Were you aware that proximate to the installation of the D phase into the phasing system for these traffic lights that the ranking of this intersection in terms of accident numbers, nosedived to 975?
A. Well, I know that because Mr Fishburn provided that information.

Q. Assuming that to be true, would it be a fair situation from a traffic engineer's point of view to not take any immediate action but to continue to monitor the intersection?
A. No.

Q. What do you say should have been done?
A. Should look at the accident patterns that were happening and not worry about where it ranks in that list of top 1,000, which is why I say it is misleading. People might think they have done something, whereas in fact they haven't. They are looking at where it ranks somewhere in the top 1,000 when what they should be looking at is the accident pattern - and it continued.

Q. In terms of the monitoring that would be appropriate, aside from looking at the continuation of the accident pattern, would you also look at any increase in the traffic usage of the intersection?
A. Only to see what sort of traffic congestion problems it caused. Volume is only an explanation for accident numbers. It still leaves the accidents numbers and the risk there, and that's what the idea of black spot treatment, or safety treatment programs are, to reduce the accidents.

Q. Would the monitoring that you are suggesting should have been taken then require an analysis of the consequences of the accidents?
A. The consequences of the accidents?

Q. Yes.
A. How do you mean? The severity?

66 Questioned by Mr Barrett about the published guidelines referred to in his, and other, reports, Mr Schnerring said that, in his opinion, the sight distances referred to should be taken from the perspective of the turning vehicle and that distances would be taken from ”stop line or at least at the point where the vehicle first enters the intersection which, in this case, would be a line between the nose of the median and the other channelised median on the left”.

67 He, later perhaps, encapsulated his view by saying, “If I had inadequate sight distance from the stop line or near the stop line and I had an accident history, I would take out the filter turn. I would be acting in accordance with part (a) of the guide and I would not consider part (b)”.

68 There was further questioning by Mr Barrett about the guidelines:

Q. Mr Schnerring, with a number of these guides I think your position is that they indicate a practice that should be undertaken unless there is good reason to depart from them?
A. Yes.

Q. You are not suggesting that from the moment the guide comes out that a road authority is required to suddenly go back to all the existing road structures and suddenly make them comply with the guide?
A. No, not drop everything and do that. But it is appropriate to bring up to date as practical to comply with the new standard and that - or new guidelines, otherwise we would have a road environment that had things designed to one standard at some locations and retained at - old standards retained elsewhere leading to inconsistencies in quality and driver expectations from one location to another, and that would provide an unsatisfactory road environment. So retrofitting should be undertaken and it's recognised but it can't obviously be done instantly and all at once.

Q. In essence, a guide which is setting out a position is setting out the desired position for any future work in relation to new construction?
A. And any modification for reconstruction.

69 In cross-examination, Mr Fishburn agreed with Mr McIlwaine that, in light of its accident record, the subject intersection should be regarded as of very high risk. He also agreed that an increase in the rate of “right turn against” accidents in the period between 1994, when a right-hand turn arrow was introduced as an alternative to a filter turn and the date of the accident indicated the need for further investigation. He would not, however, concede that it necessarily indicated that the problem had not been solved.

TRAFFIC LIGHT GUIDELINES:

70 The guidelines, referred to and partly quoted in the above evidence, warrant, I think, further attention. They are contained in the publications Traffic Signals – A Guide to the Design of Traffic Signal Installations published by Austroads in 1993 and RTA’s own publication in 1992 Traffic Signal Practice Design. The relevant parts of the former publication read:

“When controlled by circular signals alone, right turning traffic will “filter” through gaps in the approaching traffic and in the parallel pedestrian traffic during the green and intergreen periods. When this practice may be unsafe as detailed in (a) to (e) the turn should be stopped by a red arrow signal. The appropriate use of the green arrow signal is detailed in (f).

………………………………………………….

(v) Accident experience at the site indicates turning traffic is unable to detect sufficient safe gaps in which to turn.

………………………………………………….

(b) Where filter turns are desirable in order to decrease delay in periods of low traffic flows, but are undesirable during period of high traffic flows, then the red arrow should be displayed during the periods of high flows and should be extinguished when adequate gaps are detected in the opposing traffic flow (if this facility is available) or extinguished after a fixed duration derived from one of the controller timing periods (eg “the late start” period, the “WALK” period or the “Minimum green” period). This has particular advantages for signals in co-ordinated systems where delays for turning traffic can be quite high due to the use of a common cycle length.

265 Dr Lew Pierides, Specialist in Occupational Medicine, was qualified in Ms Ingham’s case. He assessed Mr Caldwell on 17 June 2003, and at the conclusion of his report made a number of statements in answer to questions asked of him by Ms Ingham’s solicitor, including:

“With respect to his neck and back pain I am of the opinion that there is no relationship to the subject accident. He had significant back problems with a history of back pain prior to this accident. There appeared to be no significant injury to his neck and I note that there were no investigations of his cervical spine to view despite his complaint of neck pain and ongoing headaches.

Based on the information available within the supplied reports I am of the opinion that there is no evidence of any significant head trauma nor any cognitive diminishment following the accident. There is an ongoing impairment in his right wrist with significant deformity and most likely an early onset of arthritis within various small bones within the wrist. There is certainly an impairment with regards, to his left biceps tendon as a result of the musculo cutaneous nerve injury. He is left with weakness of left elbow flexion although this has improved significantly following the seral nerve graft.

The other injuries in the accident would not affect his work performance.”

266 Dr Pierides expressed the opinion that Mr Caldwell’s condition should be considered as stable and that it is unlikely that he could return to heavy labouring work, given the nature of his right wrist injury and his weakness in the left biceps muscle. He said, however, that he would be fit for light labouring work which did not involve a great deal of cognitive input.

267 Dr Pierides reviewed Mr Caldwell on 26 April 2005 and for the most part, reiterated the opinions expressed previously. He noted, however:

“He has pain in the right knee as a result of the patella fracture with mild wasting of the right quadriceps. He was unable to squat fully but has a good range of movement of the right knee without significant discomfort. He would have difficulty though in climbing stairs on a repetitive basis or walking up inclines for a prolonged period.“

268 Ms Sally Inglis, Occupational Therapist, at the behest of Ms Ingham’s solicitors, carried out an occupational assessment of Mr Caldwell in June 2003. In her report, she reviewed his personal and medical history and current symptoms involving his right wrist, right shin, right kneecap, migraine headaches, left arm, right forearm and back. She noted his complaint that since the accident he has found that he is very short tempered and lacking in patience. He told Ms Ingliss that at the time of the accident he was living with his girlfriend in a unit in the city and that he did not stay with his parents for long after the accident, before moving back into the unit with his girlfriend.

269 Mr Caldwell also told Ms Inglis that he was able, at the time he saw her, to ride a motorbike and drive a motorcar. He said that there were, however, problems riding his bike for extended periods and that he needs to stop and walk around for a few minutes every hour or so. He was also experiencing difficulty operating the throttle on the motorcycle with his right hand and he contemplated having an adjustment made to overcome this.

270 Assessing Mr Caldwell’s activities of daily living, Ms Inglis noted that, according to Mr Caldwell, he is limited in walking to a maximum of one kilometre. She observed that he was able to manage stairs normally and at a functional speed; that standing in a static position for extended periods appeared to exacerbate his back pain; that he was able to squat to three-quarters of the position but was uncomfortable at the end of a full squat with reported pain in his right knee; that he was able to kneel but was not comfortable kneeling on his right knee; that he bent from the hip to pick up small items from the floor; that he had difficulty in carrying weights greater than 3.6 kilos; and that he could manage normal eating and drinking as he can manage showering, washing himself, drying himself, toileting, grooming etc.

271 Mr Caldwell told Ms Inglis that he had difficulty cutting up some vegetables such as pumpkin but was otherwise independent in cooking. He was able to keep his mobile home clean and tidy, but she concluded that it would be reasonable for him to have assistance, once per month to clean his bathroom properly. In the opinion of Ms Inglis, although Mrs Caldwell largely does her son’s washing, he would be able to manage it himself, even if he washed smaller or more manageable loads. She suggested that he should carry wet clothing in a bucket rather than a basket.

272 Ms Inglis considered that Mr Caldwell did not require assistance in ironing his clothes but as he would have difficulty opening a can with his right hand, he should be provided with an electric can opener. She noted that he keeps 3 dogs, 3 pythons and 2 cats.

273 Ms Inglis was of the opinion that Mr Caldwell does not require assistance for shopping and she thought that he could manage a sit-on lawn mower in order to mow the lawns of his parents’ property. Dealing with his capacity to perform minor maintenance tasks using a spanner or screwdriver, Ms Inglis commented, “Mr Caldwell can pace some of these tasks but will rely on other family members to perform any tasks requiring extended use of spanners and hand tools. Some power tools or socket sets might assist him to achieve these tasks without significant wrist pain. Some allowance for assistance for house handyman tasks if he is not living at his parents’ home is considered reasonable.

274 Ms Inglis discussed with Mr Caldwell his future work options and he confirmed to her that he had not attempted any return to work since his injuries. He said he would like an outdoor job which did not involve heavy lifting, carrying, or extensive overhead work, and that he would not consider working in an indoor job. He told Ms Inglis he had tried paper work prior to the accident and had “hated” it.

275 As to future domestic assistance needs, Ms Inglis concluded that whilst living on his parents’ property, he would need half an hour assistance per month for thorough cleaning and scrubbing of his bathroom tiles. If he moved away from the property into a house of his own, Ms Inglis concluded that he would need assistance for home and garden maintenance and domestic assistance of between 5 and 6 hours per month.

276 RTA in its case tendered two letters from Dr Warwick Williams, Psychiatrist, to Dr Roberts, respectively dated January and April 1994, regarding Mr Caldwell’s then, sexual problem of premature ejaculation. Indeed, the second letter indicated that Dr Williams had devised a remedial programme. The letters suggest that sexual problems, referred to in the various medical reports compiled after the accident, were of long standing and, at least in part, unrelated to the accident.

277 RTA’s case also included a letter from Dr Michael Walsh, Orthopaedic Surgeon, to a Dr Diane Batterham dated 19 March 1996, regarding Mr Caldwell’s complaints, at the time, of low back pain. As I understand Dr Walsh’s letter, he regarded the complaints as an indirect sequel of Scheuermann’s disease. He suggested that the problem could be aided with an exercise programme.

278 Finally, I refer to the report and evidence of Ms Susan Dinley, Occupational Therapist, who visited Mr Caldwell at his home on 9 November 2004 for the purpose of assessing his domestic needs. He was not particularly responsive, as indicated at the commencement of her report:

279 However, it appears that Mr Caldwell’s less than satisfactory presentation did not prevent Ms Dinley from providing a very comprehensive report. She was, incidentally, able to photograph the scarring on his body and her photographs constitute the only direct evidence before the court of the disfiguring nature of them. It is noteworthy that she conducted her interview in Mr Caldwell’s parents’ house, rather than the mobile home in which, by November 2004, according to his evidence, he was living and her evidence suggests that she was not made aware of this. He denied to her that he used cannabis or other drugs. As to physical activities, he told Ms Dinley that he was restricted in the distance he could walk, although she observed that he walked with a normal stride and was able to negotiate a “drop” of approximately 40 centimetres off the side verandah of the house. He told her that he was unable to crawl; that he could only kneel with difficulty; that he was unable to squat; that he was unable to jump; and that he was unable to run. He demonstrated that he was able to get on and off a bed without difficulty. She observed that he was capable of reaching, with his left arm, but not sustaining reach. He told her that he could carry two, two litre bottles of milk in each hand.

280 Ms Dinley made a detailed assessment of Mr Caldwell’ need for domestic services by reference to various stages of his post-accident situation. With qualifications, which I will enumerate, she concluded that by the time of her assessment, he was independent and required no domestic assistance. The qualifications were reflected in her view that generally, up to age 65, he requires assistance for spring cleaning twice per year, a total of 20 hours per year and that if he relocates to a new home, she thought he would need 1 hour per week for garden maintenance. Past the age of 65, she thought that he would need in addition 1 hour per fortnight for heavy washing and 1 hour per fortnight for heavy shopping. She pointed out that there would be periods of greater need after surgical procedures which would include assistance with meals; “catching and fetching” assistance for shopping, banking etc; and transport assistance.

281 She opined that it would be appropriate for Mr Caldwell to consult an occupational therapist for about 8 hours at a total cost of $960. She thought his motorcycle should be modified following an assessment of his needs in that regard.

282 She also suggested the purchase of appropriately designed household aids and equipment, which she costed at $1275 in total of which $380 related to future needs.

283 Ms Dinley gave oral evidence and was cross-examined by Mr McIwaine. Her view was, I think, demonstrated by these exchanges:

“Q. Do you think that someone who has a neck problem, a right arm, particularly their wrist which is painful and restricted in movement, who has a painful low back and a painful and restricted right knee and ankle, would have difficulty doing activities associated with washing?
A. As an occupational therapist we assess all those areas and once again we look at the person as a total, we look at their age, we look at the aging process. We then look at equipment and compensation techniques.

Q. But would you answer my question, and that was do you think someone of the kind that I have described to you would have some difficulty doing those activities associated with washing?
A. He will have difficulty, but he can use compensation techniques, time management skills and equipment to be able to achieve his clothing maintenance.

Q. As far as the washing is concerned and dealing with the activities that you have just described, first of all what time management skills would you suggest would be helpful to him in relation to that?
A. As indicated earlier, we look at the time of day he gets up. We do a time plan of the day of events, what he has to do. We look at a weekly timetable as well. We look at medication. We look at when he has his greatest pain, and then we look at slotting in those different types of activities into the best part of the day for the best outcome.

Q. Does that compete with your time management of when he is going to do the house cleaning?
A. Yes, it works in together.

Q. Even if he does it between 2am in the morning and 3am in the morning, if that's the most suitable time to do it, how do you avoid the physical activity?
A. For clothing maintenance?

Q. Yes. For doing the washing, washes his clothes and drying them.
A. First of all you have to look at the rooms in the house. You have to look at where he dresses and undresses. You then get him to place things at a suitable height so that he doesn't then have to go through and pick things up off the floor. He then has to gather them either in small piles, to walk them across to the laundry, or he uses a laundry basket on wheels.

Q. How does he get the clothes from the laundry basket on wheels into the washing machine?
A. He does that in small piles.

Q. And he gets them out in small piles?
A. He does.

Q. He hangs them on the line in small piles, does he?
A. He certainly does, and he uses a clothes horse. A smaller line for smaller items as possible, and he limits how many heavy items he washes in one week, which is probably quite small, and then he uses the line minimally. So he does small loads, lifts small amounts, and uses a clothes horse which is generally at a very good working level for people with disabilities.

Q. Is any of this going to cause him pain given the kind of disabilities this man has?
A. Pain? Not if he does it correctly and not if he does it within the right time frames.

…………….

Q. What about ironing? Is that something that you would see that would cause this plaintiff a problem?
A. Ironing? It obviously requires right-hand dominance. For ironing most people buy, then, change the way they buy their clothes. They buy simpler clothes. They buy drip-dry clothes, so that they have to minimise their ironing. So most disable people, and even people just generally in the community, tend to buy drip-dry, less maintenance, so that they don't have to iron every day for long periods of time, and the same thing that if he has to iron something, then he irons on a daily basis perhaps it only takes 10 minutes to do a couple of items to keep everything up to date.

…………………………..

Q. Can I understand from what you have said throughout this entire assessment of yours when you have broken things in stages, the reason you have broken the fifth stage into a period from November last year up until he turns 65, is because you have notionally taken the age of 65 as the time when ordinary able-bodied, normal members of the community are regarded in the OT industry as having reached a point where they are regarded as geriatric?
A. Not necessarily in the OT industry. It is right throughout state health. It is with the rehab physicians and your geriatricians, and most state health facilities and federal funding kicks in at 65. So that's when we generically look - some people might age until they are 90. Some people age at 40 following injuries, but that is the generic--

………………………….

Q. Will you concede, therefore, that your stage 6 should commence years before the age of 65 for this man, given his disabilities?
A. In my opinion, no.

Q. But he is vastly different to the normal person that you have used as the norm to select 65 as a transition point, isn't he?
A. Yes,

Q. Doesn't it follow that because his disabilities are such that he is different to your norm, therefore the period when stage 6 starts ought to be much earlier?
A. No.

Q. Why not?
A. As I said before, he should be able to manage with compensation techniques and equipment, time management skills.

Q. How is he going to manage, say, in the six months before he needs a total knee replacement with your compensation skills?
A. Well, a lot of people do. So he will manage, as I've said before.

Q. You don't know whether he will manage or not?
A. It is a crystal ball for all of us.

Q. Doesn't it depend as well on a person's personality?
A. Of course it does.

Q. And you are aware that this person's personality has been altered - at least it is alleged that this person's personality has been altered; you know that, don't you?
A. I don't know. I didn’t know him beforehand.

Q. But do you accept that in the environment in which you have said these things can be done by him he would still experience pain in those areas affected, namely, his neck, his right wrist, his knee, and his back, when he was doing so, unless he was so drugged up with painkillers that he wouldn't feel the pain; is that a fair comment?
A. Yes.

284 Finally, in the cross-examination, Mr McIwaine turned to Mr Caldwell’s behaviour during the interview with Ms Dinley and there was this exchange:

“Q. It's pretty clear from the introductory part of your report that the welcome to and during your consultation you at least perceived the plaintiff to be less than gracious?
A. Correct.

……………………

Q. I understand.
A. So it was a combination of events.

………………………………………………….

A. The rehabilitation theory is the theory that I have always worked by, I was taught by, and also the occupational performance model, which is an occupational therapy model that came out from the United States and, of course, hit Australia about 15 years ago. In that it looks at all the different facets of life - the emotional status, the memory status, the cognitive status, the social status. It looks at the whole gamut of the person and it looks at the domino effect to each part of that whole person.

DID MR CALDWELL SUFFER ORGANIC BRAIN DAMAGE?

285 I do not find, on the evidence, that there was organic brain damage. It seems to me that the basis for any such conclusion is flimsy in the extreme, depending almost entirely on the reference by Dr Hunt to something told to him by Mr Caldwell.

286 It seems almost inconceivable that if there were any reason to investigate brain damage that would not have been done while Mr Caldwell was a patient in Royal North Shore Hospital.

287 Moreover, in considerable measure, Dr Batchelor, upon whose opinions Mr Caldwell’s case, on this aspect largely depends, relies upon Mr Caldwell’s statement to her that he no longer is involved with cannabis. In the absence of any independent support for that claim, I would not be willing to accept it.

288 In my opinion, the analysis by Mr Rawlings is to be preferred. The symptoms of emotional disturbance complained of by Mr Caldwell may, as it seems to me, be readily explained, as Mr Rawlings suggests by his physical injuries and altered life style.

DAMAGES FOR NON-ECONOMIC LOSS:

289 It will be necessary to assess separately damages under the Motor Accidents Act and under the Civil Liability Act. In respect of non-economic loss, an assessment is to be made under s79 A of the Motor Accidents Act and under s16 of the Civil Liability Act.

290 For the purpose of s 79A of the Motor Accidents Act, I am satisfied that Mr Caldwell’s ability to lead a normal life has been significantly impaired for a continuous period of not less than 12 months by the injuries suffered in the accident and, for the purposes of s16 of the Civil Liability Act, I am satisfied that the severity of the non-economic loss is at least 15% of a most extreme case.

291 Mr Caldwell proved physical injuries which included a comminuted fracture of the mid-shaft of his right femur; a comminuted fracture of his right kneecap; a comminuted fracture of both bones of his distal right dominant forearm involving the wrist joint; fractures of the distal radius and ulna styloid; a fractured nose; facial and lip lacerations; damage to left front central incisor tooth and other teeth; a complete left musculocutaneous nerve injury; a head injury; and a soft tissue injury to his low back.

292 He claims continuing physical disabilities which include headaches; facial and bodily scarring; pain and restriction of movement in his right leg; loss of strength and restriction of movement in his right hand, wrist and forearm; pain in his lower back; pain in both shoulders; weakness and numbness in his left arm; loss of flexion in his left elbow; difficulties with sexual intercourse; and emotional or psychological sequelae manifested by depression, anger or shortness of temper; inability to concentrate; memory loss; and lack of libido. Although as indicated, I am not satisfied that organic brain damage was proved, I accept that all the matters claimed above, exist and are causally related, at least to some extent, to the accident. The lower back pain seems to result from an accident related aggravation of the pre-existing symptoms of Scheuermann’s disease. As Mr Caldwell was complaining of, and sought treatment for back pain in 1996, it is impossible to determine the extent to which back pain suffered since the accident is related to it, but it is reasonable to conclude that the accident, at least, played some part. Whilst he had problems with sexual intercourse previously it is reasonable, I think, to conclude that his physical problems make intercourse difficult. His loss of memory, depression anger and loss of libido, I attribute to the trauma of the accident and the physical injuries which he sustained in it. I am satisfied, on the evidence, that his present condition should be regarded as permanent with little scope for improvement. Indeed, it is likely to deteriorate with the onset of osteoarthritis.

293 Mr McIlwaine submitted that everything considered, Mr Caldwell’s injuries and disabilities represent 65% of a most extreme case. On the other hand, Mr Renshaw and Mr Barrett both submitted that 35% would be more appropriate. My finding that organic brain damage was not proved indicates, I think, that the percentage suggested by Mr McIwaine is too high. Nonetheless, the injuries and continuing disabilities were and are very severe particularly in their impact upon a fit and healthy young man. I assess 55% as the appropriate proportion. This would result in damages for non-economic loss of $187,500 under the Motor Accidents Act and $220,000 under the Civil Liability Act.

ECONOMIC LOSS TO DATE OF TRIAL:

294 As at the date of the accident, Mr Caldwell was permanently employed in his parents business but, as I have indicated, was paid only for the hours he worked. In the 12 months preceding the accident, his gross weekly earnings ranged from $90 to $570 and averaged $305. His net earnings averaged $230 per week. At the time average weekly earnings for adult males was $835 gross per week or approximately $600 net.

295 He was, however, as submitted by Mr McIlwaine, fit and strong and plainly had the capacity, if he chose to exercise it, of working in a more remunerative occupation. However, he chose not to do so and there is no evidence that he intended to seek other employment, apart from the suggestion that his parents hoped he would one day take over the business. There was no evidence as to the profitability of the business which, in any event, according to the evidence of Mrs Caldwell, has contracted since the accident, nor, as I said did she indicate that Mr Caldwell was capable of assuming management of the business. If anything, her evidence, to my mind, suggested otherwise.

296 For the reasons given earlier, I do not think it appropriate to consider the income earned by Mark in assessing Mr Caldwell’s loss.

297 On the one hand, Mr Renshaw submitted that in effect, Mr Caldwell had found for himself a comfortable life, involving relatively short hours of work in his parent’s business, which left him plenty of time to ride his motorcycle and engage in other recreational pursuits, including his involvement with illegal substances, and that there was no reason to conclude that this situation would alter. On the other hand, Mr McIlwaine pointed out that Mr Caldwell’s attitude might change if he accepted, for instance, the responsibility of a wife and children. He submitted that, at least, having regard to Mr Caldwell’s level of fitness, his loss of income earning capacity should be based on average earnings.

298 The problem is not without difficulty. At the time of the accident, Mr Caldwell was 28 years of age, and certainly, up to then had not demonstrated a particularly strong work commitment even though he had been in employment with his parents for most of the time since leaving school.

299 My conclusion is that in the nearly eight years since the accident, Mr Caldwell is likely to have continued working in his parents’ business and to have earned something less than average earnings. At the time of the accident he earned roughly 36% of average weekly earnings which were, at the mid point between the accident and now viz May 20001 $988.40 gross or $776 net.

300 Doing the best I can, I think it would be reasonable to compensate Mr Caldwell on the basis that between the accident and the date of trial, he would have earned about $450 net per week. On that basis, I award for past diminished earning capacity, over a period of 7 years and 7 months, the sum of $ 177,450.

301 In the circumstances, I do not think there should be any discount of the above sum to take account of Mr Caldwell’s loss of his driving licence during the period. Nor do I regard his involvement with illegal substances as something which expressly needs to be taken into account.

FUTURE ECONOMIC LOSS:

302 Although Mr Caldwell may have a very small residual earning capacity, I think that for all intents and purposes, he should be regarded as permanently incapacitated for gainful employment. In my opinion, having regard to his disabilities; his level of education and his limited pre-accident experience and training, he is unlikely to be able to obtain employment on the open market.

303 As to compensation for future diminished earning capacity, my assessment is that Mr Caldwell is unlikely to earn as much as the average weekly earnings of Australian Males. That is an assumption I make for the purposes of s13 of the Civil Liability Act. That assumption is to be coupled with my assumption that Mr Caldwell is permanently incapacitated for employment.

304 Again doing the best I can, I think it reasonable to calculate his loss of future earning capacity by reference to the figure I adopted in assessing his loss to the date of the trial, namely $450 per week. Using 5% tables a multiplier of 815.8 to encompass the period until Mr Caldwell attains 65 and deducting 15% for vicissitudes, I assess compensation for future diminished earning capacity at $ 312,043.

305 The award of $312,043 will be applicable both to Ms Ingham and RTA. For the purposes of s70 A of the Motor Accidents Act, it is implicit in what I have said that there is at least a 25% likelihood that Mr Caldwell will suffer a diminution of future economic capacity.

306 For the purposes of the Civil Liability Act, I am satisfied that the assumptions on which the calculations are based, accord with Mr Caldwell’s most likely future circumstances but for the injury. No further adjustment seems to me to be required by subsections (2) and (3) of s13.

OUT OF POCKET EXPENSES:

307 Out of pocket expenses were agreed by all parties at $41,879.70 and this sum should be allowed.

PAST SUPERANNUATION:

308 Mr Caldwell is entitled to be reimbursed for the lost benefit of compulsory superannuation payments made by his employer on his behalf, which I calculate at $19,519 and allow against both Ms Ingham and RTA.

FUTURE SUPERANNUATION:

309 In respect of the award for future diminished earning capacity, I allow $34,325 for loss of superannuation entitlements. Again the amount is recoverable against both Ms Ingham and RTA.

FUTURE MEDICAL EXPENSES ETC:

310 A number of claims have been made on behalf of Mr Caldwell in respect of future medical treatment. Of the various claims, only future dental treatment in the sum of $2,550 was agreed and that sum should be allowed.

311 Dr Buckley in several of his reports opined that Mr Caldwell would require a total knee joint replacement and a revision of such replacement. However, in his report of 7 April 2005, he said that the knee joint replacement may not be required until late in the 6th or 7th decades. In respect of this surgery, the claim on Mr Caldwell’s behalf was $16,119.00. Counsel for Ms Ingham and RTA submitted that a much smaller allowance would be applicable.

312 However, the amount sought by Mr Caldwell seems to me to be reasonable in the light of the opinions expressed by Dr Buckley, with the qualification that there should, I think, be some discount for vicissitudes, which I would assess at 20%. In respect of the knee joint replacement, I would, therefore, allow, rounding up the calculation, $13,000.

313 On the evidence, particularly the reports of Dr Scougall and Dr Beard, Mr Caldwell probably will require surgical intervention to his wrist. According to Dr Beard’s report of 6 April 2005, this may take the form of an arthroscopy and debridement, or possibly an arthrodesis. I think it reasonable to allow $2,000 in respect of future wrist surgery.

314 Further amounts were claimed on behalf of Mr Caldwell in respect of two consultations per annum with a general practitioner; an annual review by a rehabilitation physician; an annual review by an orthopaedic specialist; six physiotherapist sessions per year; surgery to revise facial scarring; and psychiatric consultations. The sum claimed in respect of these matters totalled nearly $18,000, to which should be added the consultations with an occupational therapist suggested by Ms Dinley and modifications to his motorcycle. There was little specific evidence from Mr Caldwell that he proposed to undertake or undergo the treatment or visits to medical practitioners suggested, but, in my opinion, it would be reasonable to allow a lump sum. I quantify this at $10,000 which is intended to cover all the matters referred to in this paragraph.

315 Dr Buckley in his report of 18 December 2002 suggested that Mr Caldwell requires a fund manager in respect of any award of damages made in his favour. He predicated that opinion upon his conclusion, contrary to my own finding, that Mr Caldwell suffered organic brain damage. In any event, I do not think the evidence warrants an allowance for a fund manager as suggested by Dr Buckley and I make no award on this account.

PAST GRATUITOUSLY PERFORMED DOMESTIC ASSISTANCE:

316 Both s72 of the Motor Accidents Act and s15 of the Civil Liability Act restrict the amount which may be awarded under the above heading. Relevantly to this case, no damages are to be awarded if the services are provided, or are to be provided, (a) for less than 6 hours per week and (b) for less than 6 months. Moreover, the court must be satisfied that the services claimed would not have been provided to the claimant, but for the injury. The last mentioned factor is of particular relevance in this case as the gratuitous services claimed by Mr Caldwell were performed by his mother, upon whose property he was living at the time of the accident.

317 In respect of the period from the date of the accident to 18 May 1998, I accept the contention made on behalf of Ms Ingham and RTA that the claim for gratuitous services provided by Mrs Caldwell should be determined at the sum of $5491. I do not think that the claim should be allowed for any period prior to Mr Caldwell’s discharge home on 13 November 1997. This is because I doubt, on the evidence, that Mrs Caldwell’s hospital visits constituted the provision of services meeting Mr Caldwell’s needs. Her shopping for him may have qualified but this did not, I infer, amount to 6 hours per week.

318 I also accept, in accordance with concessions by counsel for Ms Ingham and RTA, that allowance should be made for gratuitous services provided by Mrs Caldwell in respect of 4 further periods, namely, $931.20 for 4 weeks while Mr Caldwell recovered from the surgery performed on 19 May 1998; $626.40 for 4 weeks while Mr Caldwell recovered from the surgery performed on 1 September 1998; $1303.20 for 8 weeks following the surgery performed on 17 August 1999; and $720.40 for a period of 4 weeks after Mr Caldwell’s discharge from hospital in June 2001 following surgery to his wrist and to his right leg. Those amounts total $3,581.20.

319 In my opinion, other domestic services provided gratuitously by Mrs Caldwell up to the date of trial do not meet the criterion of being provided for at least 6 hours per week and, accordingly, no sum is payable on this account. Nor for the same reason does the evidence support any allowance for the future gratuitous supply of domestic services.

CLAIM FOR FUTURE DOMESTIC CARE AND ASSISTANCE:

320 Mr Caldwell claims for 5 hours per week paid domestic assistance and 3 hours per week paid home maintenance and handyman assistance. These claims are for the balance of his life expectancy.

321 The report of Dr Buckley dated 18 December 2002 supports these claims but, in my opinion, particularly in light of the evidence of Ms Dinley, they are excessive. They are especially so while Mr Caldwell continues to live in a mobile home. Even in a new house, he would not, in my opinion, require paid domestic and handyman assistance totalling 8 hours per week. He should, however, equip himself with appropriate aids and equipment, as suggested by Ms Dinley, as to which I would allow $1,500.

322 In addition, I think it would be reasonable to allow 1 hour paid domestic assistance per week and 1 hour handyman assistance per week. For his life expectancy, this at the agreed rate of $31 per week would amount to $58,404. Although this award is, I think, excessive for Mr Caldwell’s present needs, I accept that he is likely to move to his own home where his needs will be greater as they also will be in periods following future surgery and treatment and in the likely event that there will be some worsening of his medical condition.

323 In assessing claims under the above heading I have accepted the thrust of Ms Dinley’s evidence, namely that Mr Caldwell for his own benefit should be encouraged to be as self sufficient as possible. In this connection I prefer the testimony of Ms Dinley to that of Dr Buckley.

INTEREST:

324 It may be that Mr Caldwell is entitled to interest under s 73 of the Motor Accidents Act and under s18 of the Civil Liability Act. The court is not in a position to determine the issue of interest, at least in respect of damages to be awarded against Ms Ingham, and that aspect of the case will need to be stood over for further argument.

SUMMARY OF DAMAGES CALCULATED AGAINST MS INGHAM:

325 Non Economic Loss

(para 293) $187,500.00
Past Economic Loss
(para 300) $177,450.00
Future Diminished Earning Capacity
(para 304) $312.043.00

Out of Pocket Expenses
(para 307) $ 41,879.70
Past Superannuation benefits
(para 308) $ 19,519.00

Future Superannuation Benefits
(para 309) $ 34,325.00

Future Medical etc. Expenses
(paras 310,312,313 and 314) $ 27,550.00

Gratuitous Domestic Assistance
(paras 317 and 318) $ 9,072.20

Future Domestic Assistance
(paras 321 and 322) $59,904.00

SUMMARY OF DAMAGES AWARDED AGAINST RTA:

326 Non Economic Loss

(para 293) $220,000.00
Past Economic Loss
(para 300) $177,450.00
Future Diminished Earning Capacity
(para 304) $312.043.00

Out of Pocket Expenses
(para 307) $ 41,879.70
Past Superannuation benefits
(para 308) $ 19,519.00

Future Superannuation Benefits
(para 309) $ 34,325.00

Future Medical etc. Expenses
(paras 310, 312, 313 and 314) $ 27,550.00

Gratuitous Domestic Assistance
(paras 317 and 318) $ 9,072.20

Future Domestic Assistance
(paras 321 and 322) $59,904.00

VERDICTS AND ORDERS:

327 In light of the above assessments, I would propose to enter a verdict for Mr Caldwell against Ms Ingham in the sum of $608,470. I would propose to enter a verdict for Mr Caldwell against RTA in the sum of $ 270,523. I would propose to order that Ms Ingham and RTA pay Mr Caldwell’s costs, apportioned between them as to 70% to Ms Ingham and 30% to RTA.

328 As the matter of interest remains to be resolved and as the parties may wish to seek further orders, including orders dealing with the cross-claims, I stand the matter over until 3 August at 9.30am, or such other date convenient to all the parties as may be arranged with my Associate. On that date I would contemplate making formal orders for the disposal of the proceedings. I invite the parties to agree upon Short Minutes of Order.

I CERTIFY THAT THIS AND THE
PRECEDING 143 PAGES
CONSTITUTE A TRUE COPY OF
THE REASONS FOR JUDGMENT
OF ACTING JUSTICE PATTEN

………………………..
ASSOCIATE

Actions

Download as PDF Download as Word Document

Citations

Caldwell v Ingham [2005] NSWSC 483

Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

2

Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41

CITATION:	Caldwell v Ingham [2005] NSWSC 483
HEARING DATE(S):	26,27,28,29 April 2005 2,3,4,5,6,9,10,11,12,13 May 2005
JUDGMENT DATE :	17 July 2005
JUDGMENT OF:	Patten AJ at 1
DECISION:	See paragraph 327

LEGISLATION CITED:	Civil Liability Act 2002 Motor Accidents Act 1988
PARTIES:	Garry Caldwell - Plaintiff Bronwen Ingham - First Defendant - Cross Claimant Road and Traffic Authority of NSW - Second Defendant - Cross Defendant.
FILE NUMBER(S):	SC 20138/04
COUNSEL:	Mr R McIwaine SC with J Davidson - Plaintiff Mr A Renshaw - First Defendant Mr T Barrett - Second Defendant.
SOLICITORS:	Schrader & Associates Henry Davis York Sparke Helmore