Christine Moore v Insurance Australia Limited (Trading as NRMA Insurance) and Australian Capital Territory - [2012] ACTSC 15

CHRISTINE MOORE v INSURANCE AUSTRALIA LIMITED (TRADING AS NRMA INSURANCE) AND AUSTRALIAN CAPITAL TERRITORY
[2012] ACTSC 15 (31 January 2012)

NEGLIGENCE – motor vehicle collision – rear-end collision – whether bus driver contributed to collision by pulling out from bus stop without indicating or when unsafe to do so – Civil Law (Wrongs) Act 2002, s 21 – Australian Road Rules, rr 77, 87 – facts found in favour of bus driver – no negligence by bus driver

Road Transport (General) Act 1999, s 197
Civil Law (Wrongs) Act 2002, s 21
Australian Road Rules, r 77, 87
Road Transport (Safety and Traffic Management) Regulation 2000, r 6

No. SC 432 of 2008

Judge: Master Harper
Supreme Court of the ACT

Date: 31 January 2012

IN THE SUPREME COURT OF THE )
) No. SC 432 of 2008
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:CHRISTINE MOORE
Plaintiff

AND:INSURANCE AUSTRALIA (TRADING AS NRMA INSURANCE)
Defendant

AND:AUSTRALIAN CAPITAL TERRITORY
Third Party

ORDER

Judge:  Master Harper
Date:  31 January 2012
Place:  Canberra

THE COURT ORDERS THAT:

judgment be entered for the third party against the defendant.
the defendant pay the third party’s costs.

On 18 May 2006, the plaintiff’s stationary vehicle was struck from behind by a vehicle driven by the original defendant, Ian Reid. The plaintiff was stationary in a line of traffic stopped at the lights in Dalrymple Street at its intersection with Hindmarsh Drive, Narrabundah.
Mr Reid died in August 2008. In April 2011 an order was made substituting the third-party insurer of the vehicle he was driving, Insurance Australia Limited trading as NRMA Insurance, as defendant.
In May 2009 the Australian Capital Territory was joined as third party, vicariously liable for asserted negligence by the driver of an ACTION bus, Mr Simon Warner.
The defendant’s claim against the third party is available pursuant to s 21 of the Civil Law (Wrongs) Act 2002. The section provides that a person who is liable for damage caused by a wrong can recover contribution from someone else who is also liable for the same damage. The contribution is to be an amount that the court considers just and equitable having regard to the extent of the responsibility of the latter for the damage.
Section 197 of the Road Transport (General) Act 1999, which governed proceedings of this kind in respect of 2006 causes of action, provided that if a person against whom a claim could be made was dead, the claimant, and anyone claiming contribution or indemnity between joint tortfeasors, might bring an action in relation to the claim against the person’s authorised insurer, and recover in the action an amount for which the claimant, or the person claiming contribution or indemnity, could have obtained a judgment against the insured person. The section did not specifically cover the present situation, where, some years after the death of the original defendant, consent judgment was obtained against him; and only following judgment was the record amended to substitute the authorised insurer, who then wished to pursue a claim for contribution against a third party. However, no point was taken at the hearing by counsel for the third party. The hearing was conducted by counsel for both the defendant and the third party on the footing that the proceedings were regularly brought and continued and that my task was simply to determine whether the bus driver had been guilty of negligence which contributed to the collision in which the plaintiff was injured, and if so to assess his contribution. I proceeded accordingly.
On 23 September 2010, at a listing hearing before a Deputy Registrar, the action was listed for hearing before me on 19 September 2011.
During November 2010, the plaintiff’s action against the defendant was settled for $150,000.00 plus costs. There is no issue between the defendant and the third party that the settlement figure was a reasonable one. The hearing on 19 September 2011 was hence limited to the issues of negligence on the part of the bus driver, Mr Simon Warner, and, in the event of a finding of negligence, the extent of the bus driver’s responsibility for the damage suffered by the plaintiff. Negligence on the part of the late Mr Reid was conceded.
Documentary evidence before me included aerial photographs and detailed plans of the site of the collision, photographs of the damaged vehicles, a copy of the police report including copies of handwritten entries in the attending police officer’s notebook, and a death certificate in respect of Mr Reid.
Mr Reid died in August 2008, more than two years after the collision. He was aged eighty-eight, and according to the certificate had suffered for a period of years from multi-infarct dementia and multiple cerebro-vascular accident.
The police report identified four vehicles as having been involved in the collision. The brief description of the circumstances was as follows:
V1, V2 and V3 were stopped at the traffic lights. V4 was travelling down Dalrymple Street, Red Hill. The bus has either pulled out before or as the V4 was alongside it. V4 has gone into the middle of the road. V4 has hit the rear of the V3 pushing V3 into V2 and V2 into V1.
Vehicle 4 is identified as that driven by Mr Reid, and vehicle 3 that driven by the plaintiff.
The driver of vehicle 1, a Mr Coggan, told the police officer:
I passed the bus and people getting on the bus. I stopped for the lights, about 10 cars in front. I then heard a noise and felt a bump after a crash.
The driver of vehicle 2, Mr D’souza, said:
I was following cars when I was hit from behind. I hit the brakes to stop. I stopped but hit the car in front. I was slow moving. I saw the bus but did not see it move.
The plaintiff told the police officer:
I was stopped at the lights. I think I was the fourth/third car from the lights. I always leave a car length in front. I think I heard a big bang. I went forward. I looked and I was against a car. I saw a woman getting out of the car. I may have blacked out. I got out of my car. I saw the car behind was smoking and the bonnet was all up. I saw a guy coming over who was taking pictures. I had whiplash/soft tissue damage in my neck and left shoulder.
The police officer noted what was said by a witness to the collision, Ms Wendy Rayment. Ms Rayment had previously lived in Canberra but at the time of the accident she was living at Wagga Wagga. She said:
Saw a bus pull out – bus pull back in stopped – old man in car was in middle – he ran in back of car – bus took off.
In February 2007 the police officer took a statement from the bus driver, Mr Warner. The statement was as follows:
About 1:40 pm on 18 May 2006 I was driving BUS 974, route 38. I had driven up Goyder Street towards Dalrymple Street. I turned left onto Dalrymple Street and stopped at the bus stop. I think someone got on the bus and was stopped for a short time. I went to take off. The lights were red. I put my indicator on. I tried to get out. I saw a car in my rear mirror travelling fast from Goyder Street. I cannot recall how far back the car was but the car was behind me. I stopped to prevent the car hitting the bus. The car went past and went into the back of another car. The car was travelling fast. As I was not involved in the collision I worked as company policy and continued on my route. I believe I did nothing wrong and the car was going to fail to give way to me if I did [not] stop.
The word ‘not’ was not included in the statement signed by Mr Warner but was clearly omitted inadvertently. The last sentence of the statement would not otherwise make sense.
Mr Reid, the driver of vehicle 4, was apparently not interviewed by the investigating police officer until May 2007, a year after the accident. He is recorded as having said:
Was forced out to right. When bus moved out to right no indicator. Pushed into middle of road. Moved back to left. Can’t remember – but think I hit the car in front.
Goyder Street at one time met Dalrymple Street at a T-junction. Some years prior to the collision the junction was configured so as to give priority to vehicles travelling west in Goyder Street and turning right to travel north in Dalrymple Street. Vehicles travelling north in Dalrymple Street and intending to proceed into the same street beyond Goyder Street were required to stop and then to make a left turn. Vehicles travelling south in Dalrymple Street were diverted to the left, and were required to give way to traffic in Goyder Street before making a right turn into the southern section of Dalrymple Street. The northerly portion of Dalrymple Street features what are colloquially called speed bumps and at a more official level are referred to as traffic calming devices.
Dalrymple Street is about 700 m in length running generally north-south. The southern portion, between Goyder Street and Hindmarsh Drive, is about 200 m in length. Its intersection with Hindmarsh Drive is governed by traffic lights and these are the lights referred to in the police notes and report.
There is a bus stop on the eastern side of Dalrymple Street, about forty or fifty metres from Goyder Street, and the southbound side of Dalrymple Street is somewhat widened in the area of the bus stop. Dalrymple Street is divided, for some distance immediately south of Goyder Street, and also for some distance immediately north of Hindmarsh Drive, by narrow concrete median strips, and effectively for the rest of its length by unbroken painted lines. The southbound half of Dalrymple Street south of Goyder Street is not divided by lane lines. The bus stop is marked by painted lines on the road, as well as a sign and concrete shelter on the verge.
At the time of the collision the weather was fine and the road surface was dry and in good condition.
Oral evidence at the hearing was given by Ms Rayment in the defendant’s case, and Mr Warner in the third party’s case.
Ms Rayment had lived in Canberra for about seven years, until about 2003. She was familiar with the section of Dalrymple Street where the accident happened, having driven along it in both directions about once a week. On the day of the collision she was in Canberra visiting family. She had been shopping at Manuka. She described the configuration at the junction of Dalrymple Street and Goyder Street as a roundabout, which is not strictly accurate although perhaps it displays some of the features of a roundabout. She said as she came around the roundabout onto Dalrymple Street, there was a stationary bus on her left. Asked what she next observed, she replied “I observed the car behind the bus. I observed the bus take out and the car swerving to the right and crashing into the back of another car”. She said that the bus had been stationary and “all of a sudden it started going over to one side, it started to take off”. She said that the small car behind it went into the right-hand lane immediately and went by the side of the bus and then banged into the back of a stationary car. Ms Rayment did not notice whether or not the bus gave any indication of intention to pull out from the bus stop.
Ms Rayment confirmed that she was travelling in the same direction as the bus and the small car. She could not remember whether there was another car between her and the small car. She recalled that cars further forward were stopped at the traffic lights at Hindmarsh Drive. She said that the small car veered to the right, went by the side of the bus and then banged straight into the back of another car. The bonnet of the car went up and smoke came from it.
Counsel for the defendant asked Ms Rayment how far the small car was from the bus when she observed the bus start to pull out. Her answer was that it was right behind the bus. The small car “looked as though it jumped into the right-hand lane. If it hadn’t have gone there it would have gone straight into the back of the bus”. Ms Rayment agreed in cross-examination that she did not know what speed the small car was travelling at before it pulled out behind the bus. She did not think that it had been going any faster than her own speed. She also agreed that the bus, having commenced to move out from the bus stop, stopped again.
Ms Rayment seemed a little unsure of some matters, probably not surprisingly considering that she was giving evidence more than five years after the collision. Shown a photograph taken in Dalrymple Street looking towards the intersection of Hindmarsh Drive, showing the junction with Goyder Street, she thought that the junction had been configured differently at the time of the accident. She was unable to remember whether there had been a bus shelter at the bus stop. She thought that the road markings had changed since the accident also.
Mr Warner worked as a bus driver on ACT government buses for seventeen years but was no longer working in that capacity by the time of the hearing. He had driven the bus he was driving on the day of the collision for about two years and had a good recollection of the matters of detail about it. He recalled that route 38 took the bus west up Goyder Street, then left into Dalrymple Street to travel south. His evidence was that he remembered stopping at the bus stop in Dalrymple Street on the day in question, to let passengers off and on.
He identified a photograph of the back of the bus, confirming that it had looked the same at the time of the accident. There was a large sign on the back of the bus ‘do not overtake turning vehicle’, and a large diagram illustrating the obligation of a driver overtaking a bus pulling out from his left. The diagram is prescribed by rule 77 of the Australian Road Rules, which are part of the law of the Territory by virtue of regulation 6 of the Road Transport (Safety and Traffic Management) Regulation 2000. The rule provides as follows:
77 Giving way to buses
(1)A driver driving on a length of road in a built-up area, in the left lane or left line of traffic, or in a bicycle lane on the far left side of the road, must give way to a bus in front of the driver if:
(a)the bus has stopped, or is moving slowly, at the far left side of the road, on a shoulder of the road, or in a bus-stop bay; and
(b)the bus displays a give way to buses sign and the right direction indicator lights of the bus are operating; and
(c)the bus is about to enter or proceed in the lane or line of traffic in which the driver is driving.
[balance of rule omitted].
Mr Warner explained that the bus had a footbrake and two handbrakes, which he described as the short stop brake and the long-stop brake. The short-stop brake was used when letting off or picking up passengers, enabling the driver to take his foot off the footbrake. Common practice was to leave the short-stop brake on until the passengers who had just got on were all seated. The driver would then apply the right indicator, look in the external rear-vision mirror for traffic, release the short-stop brake, accelerate and move off. He said that on the day in question, he followed that procedure. Having released the short-stop brake, he activated the right indicator, and looked in the rear-vision mirror. It was clear of traffic. He then moved out. As he did so he looked in the rear-vision mirror again and saw a car coming from behind him which he said was going very fast. He stopped immediately, becoming stationary probably ten metres from the bus stop. The car overtook the bus and collided with the rear of the last car in the line of stationary cars at the traffic lights. Mr Warner said that he saw no sign that the car braked or swerved prior to impact.
Mr Warner made no immediate written report of the incident. I infer that the first time he was asked to recall the events thereafter was in February 2007 when police came to his house, and he made the signed statement I have set out above.
He was next contacted during 2010 by an investigator instructed on behalf of the defendant. He declined to make a statement to the investigator and agreed that he has used words to the effect ‘time has moved on and I have no recollection of the details after four years’.
Later in 2010 he was approached by someone acting in the interests of the third party. His recollection of the events was refreshed by seeing the police report. I infer that what triggered his recollection was to read again the signed statement he had made early in 2007.
Mr Warner’s recollection of the day was tested in cross-examination at the hearing. There were a number of matters about which he was unclear, for example how full the bus had been and how many people had got on and off the bus at the bus stop in Dalrymple Street. He did recollect that it was a bus stop where it was often unnecessary to stop.
I had the impression that with some of his answers, he was relying more on his recollection of his usual practice as a bus driver rather than on any specific recollection of the events of the day in question. Indeed, one would be a little surprised if a bus driver purported to have a very clear recollection of the details surrounding an event of this kind, where he had seen a collision but not been involved in it, when giving evidence more than five years later. He was definite that he had indicated before pulling out from the bus stop. He disagreed that the overtaking car had been forced out to its right, or pushed into the middle of the road, and he disagreed that the vehicle had moved back to its left prior to impact.
There was no other oral evidence. It is hardly a matter for comment that the plaintiff was not called: there is no suggestion in the police record of what she said immediately afterwards that she was looking behind her, or that she could have given any useful evidence beyond the fact that she was struck from behind and pushed into the car in front.
The police officer was not called. My assumption would be that after five years he would have little independent recollection of the events, and any evidence he gave would be reliant on the notes he made at the time. His absence as a witness does not reflect adversely on the case of either side.
I formed the view that both Ms Rayment and Mr Warner were honest witnesses doing their best to recall the events and to answer questions truthfully and in as much detail as they could remember. I take into account, in the case of both witnesses, that this was an incident which happened suddenly, with virtually no warning, and over a very short period of time.
Mr Warner’s evidence was consistent with the statement he made to the police fifteen months after the accident. I think it is more probable than not that his version of events is correct as to his actions and observations.
The only fragment of evidence from which I could find that Mr Warner pulled out without indicating comes from the brief note of what Mr Reid told the police in May 2007, a year after the accident. It is not in the form of a signed statement, and I cannot tell how much of it is a paraphrase of Mr Reid’s actual words and how much is a summary by the constable. The note is of a conversation that took place when Mr Reid was eighty-seven years of age and was suffering from some degree of dementia, only a year before he died. The note is quite inadequate to persuade me, in the face of evidence from Mr Warner that he activated the indicator, that he did not do so. The evidence of Ms Rayment does not assist on the issue. Her oral evidence was that she did not recall whether the bus driver indicated or not. No reference was made to whether she saw an indicator in the note of her conversation with the police constable. It seems to me very likely that if the driver did not indicate before pulling out, Ms Rayment would have noticed this at the time and would have made a point about it to the police.
I am satisfied that it is more probable than not that the indicator on the bus was activated before the bus started to move out, and that for some reason, Mr Reid did not observe it and react to it as quickly as he was required to do by virtue of the Australian Road Rules.

The general rule about pulling out from the kerb is rule 87 of the Australian Road Rules. This provides that a driver entering a line of traffic from the far left side of the road must give way to any vehicle travelling in the line of traffic. However a bus driver does not have to give way to a vehicle if the driver of the vehicle is required to give way to the bus under rule 77, and it is safe for the bus to enter the line of traffic. It is clear from the interaction of rules 77 and 87 that it is not enough for a bus driver simply to indicate and then pull out. It must also be safe for the bus to do so. This means that the bus driver must also check in his rear vision mirror that there is no traffic approaching from the rear which is so close that its driver could not reasonably give way. I accept Mr Warner’s evidence that he checked in his rear vision mirror after indicating and before pulling out.
It is not necessary for me to make a finding about the speed of Mr Reid’s vehicle. It is unlikely to have been particularly fast, considering that the bus stop is only forty or fifty metres from Goyder Street. It is enough for me to say that I am satisfied that Mr Reid must have been driving a little too fast for the conditions. For reasons about which I can do little more than speculate, but which may well have included the effect of the aging process or his level of dementia, it seems to me likely that Mr Reid failed to observe, and react in an appropriate and timely manner to the fact, that the bus was indicating an intention to pull out from the bus stop. It seems likely that when he realised, he took action to avoid colliding with the bus but in doing so failed to react in time to the fact that there was a line of stationary vehicles ahead of him.
As to the police note of what Mr Reid said, it is in my view significant that he said that he thought that he had hit the car in front but could not remember. Accepting that to be the fact, it seems likely that by May 2007 his recollection of the precise course of events in the seconds before impact might well also have been faulty or impaired to some degree.
The negligence alleged against the bus driver may be summarised as either a failure to indicate before pulling out from the kerb, or alternatively failing to check before pulling out that it was safe to do so. Neither of the alternatives has been made out. I am not satisfied that the bus driver committed any breach of duty of care to the plaintiff. The bus driver would therefore not be, in the wording of s 21 of the Civil Law (Wrongs) Act, ‘also liable for the same damage’. The defendant’s claim against the third party accordingly fails. There will be judgment for the third party with costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 31 January 2012

Counsel for the defendant:  Mr SH Pilkinton
Solicitors for the defendant:  Sparke Helmore
Counsel for the third party:  Mr J Pappas
Solicitors for the third party:  ACT Government Solicitor
Date of hearing:  19 September 2011
Date of judgment:  31 January 2012