Dunleavy v Peak

[2009] NSWCA 72

New South Wales

Court of Appeal

CITATION:	Dunleavy v Peak [2009] NSWCA 72
HEARING DATE(S):	23 February 2009
JUDGMENT DATE:	8 April 2009
JUDGMENT OF:	Ipp JA at 1; Campbell JA at 2; Sackville AJA at 98
DECISION:	(1) Set aside the orders in the court below. (2) Remit the matter to the District Court of New South Wales for a retrial. (3) Order the Respondent to pay the costs of the Appellant of the appeal, the Respondent to have a certificate under the Suitors’ Fund Act 1951 if qualified. (4) Reserve the costs of the first trial to the judge who conducts the retrial.
CATCHWORDS:	EVIDENCE – burden of proof, presumptions, and weight and sufficiency of evidence – need to assess evidence by reference to facts in issue – whether trial judge was required to weigh evidence from one witness against conflicting evidence of other witnesses when evidence from all those witnesses was relevant to the one fact in issue – trial judge accepted one witness' evidence before evaluating conflicting evidence of other witnesses – failure to take account of unchallenged conflicting evidence from other witnesses – EVIDENCE – witnesses – credibility and reliability – whether inability of the witness to estimate distances would allow the trial judge to doubt the reliability of a witness’ evidence more generally – TORTS – negligence – essentials of action for negligence – standard of care – whether risk and reasonable response were adequately explained – causation – whether failure to take precaution caused the damage – whether an increase in risk is a sufficient cause – PROCEDURE – courts and judges generally – judges – requirement to give adequate reasons – failure to give reasons in applying the law to the facts – failure to give adequate reasons to support a contingent finding of negligence – APPEAL AND NEW TRIAL – new trial – requirement of a new trial when questions of credibility of witnesses are required
LEGISLATION CITED:	Suitors’ Fund Act 1951
CATEGORY:	Principal judgment
CASES CITED:	Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Flounders v Millar [2007] NSWCA 238; (2007) 49 MVR 53 Gittani Stone Pty Ltd v Pavkovic [2007] NSWCA 355; [2007] Aust Torts Reports 81-924 Hawthorne v Hillcoat [2008] NSWCA 340; (2008) 51 MVR 523 Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413; 223 ALR 228 Peak v Dunleavy [2008] NSWDC 232 Warren v Gittoes [2009] NSWCA 24
PARTIES:	Leonie Dunleavy - Appellant Rachelle Suzanne Peak by her Tutor Doreen Peak - Respondent
FILE NUMBER(S):	CA 40419/08
COUNSEL:	PJ Deakin QC; S McCarthy - Appellant P Hennessy SC; CP Locke - Respondent
SOLICITORS:	McLachlan Chilton, Sydney - Appellant Velleley & Associates, Melbourne - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2280/06
LOWER COURT JUDICIAL OFFICER:	Levy DCJ
LOWER COURT DATE OF DECISION:	10/10/08; 7/11/08
LOWER COURT MEDIUM NEUTRAL CITATION:	Rachelle Suzanne Peak by her Tutor Doreen Peak v Leonie Dunleavy [2008] NSWDC 232; Rachelle Suzanne Peak by her Tutor Doreen Peak v Leonie Dunleavy (No 2) [2008] NSWDC 240

CA 40419/08
DC 2280/06

IPP JA
CAMPBELL JA
SACKVILLE AJA

8 APRIL 2009

LEONIE DUNLEAVY v RACHELLE SUZANNE PEAK by her tutor DOREEN PEAK

Judgment

1 IPP JA: I agree with both Campbell JA and Sackville AJA.

2 CAMPBELL JA:

Nature of the Case

3 The Respondent was severely injured on the evening of 10 June 2004 when a motor vehicle she was driving was involved in a collision with a motor vehicle driven by the Appellant. The trial judge found that the collision arose from the negligence of the Appellant. The judge assessed the Respondent’s contributory negligence at 35%, and reduced damages accordingly: Peak v Dunleavy [2008] NSWDC 232.

4 In this appeal the Appellant seeks reversal of the judge’s finding of negligence. Alternatively, she seeks to have the contributory negligence of the Respondent assessed at a much higher figure than 35%.

5 As the parties agreed that the appropriate damages award, prior to any reduction for contributory negligence, was $5,000,000, the trial Judge entered judgment on 10 October 2008 for the Respondent in the interim sum of $3,250,000. On 7 November 2008, after allowing for funds management charges of $737,035, his Honour directed entry of judgment in the Respondent’s favour in the sum of $3,977,035.

Uncontroversial Matters Concerning the Collision

6 The collision took place on Wilfred Barrett Drive, North Entrance. The stretch of road where the collision took place was within an urbanised area, though at a place where there was a foreshore reserve on either side of the road, so that houses were not constructed at the sides of the road.

7 The judge made findings about the site, that neither party criticises, as follows (at [13]-[16]):

“At the scene of the collision Wilfred Barrett Drive comprises an urban arterial road that runs generally north to south. The northbound carriageway comprises a sweeping 380m long curve to the left. The curve has a radius of 305m preceded by a 90m straight section. …
At the scene of the collision the curved roadway was slightly banked but generally flat. The surface of the roadway comprised sealed bitumen with marked lanes for northbound and southbound traffic. These two lanes were separated by two unbroken white double centre lines. There were further white unbroken edge markings located near the edge of the bitumen road shoulder on either side.
The total width of the bitumen roadway comprising the northbound and southbound lanes was 7m, which meant that there was about 3.5m of trafficable lane width in either direction. In addition to the bitumen traffic lanes there were shoulders on both sides of the roadway each comprising a 2.5m wide chip-sealed bitumen surface delineating a cycleway or breakdown lane. Beyond the edges of the cycleway were some cleared grassed areas which were not the subject of measurements. Beyond that there was roadside vegetation comprising bushes and trees.
At the time of the collision the conditions were overcast and dark, the road was wet from previous rainfall but it was not actually raining.”

8 From the place where the vehicles came to rest after the collision a policeman with a wheel odometer measured the distance of the nearest streets heading off Wilfred Barrett Drive as being 180m to the north (where Wyuna Avenue led off to the right for a northbound car), and 210m to the south (where Mini Street led off to the right for a northbound car). The entrance to a caravan park on the left of Wilfred Barrett Drive (for a northbound car) was estimated (though not measured) to be 20 or 30m south of the intersection of Wilfred Barrett Drive with Wyuna Avenue. There was no street lighting in the immediate vicinity where the collision occurred, with the nearest street lighting being near the intersection of Wilfred Barrett Drive and Wyuna Avenue.

9 The vehicle driven by the Respondent was a white Mitsubishi Lancer sedan. The vehicle driven by the Appellant was a Toyota Landcruiser fitted with a bull bar at its front.

10 The Respondent was alone in her vehicle at the time of the collision. The Appellant was accompanied by a work colleague, Ms Wphawan Taisanthiah.

11 Immediately before the collision the Respondent was parked in the breakdown lane, on the northbound (western) side of Wilfred Barrett Drive with her headlights and tail lights illuminated. The accident took place when the Respondent moved from the breakdown lane and began to do a U-turn across unbroken double lines. As the judge found, this manoeuvre was impermissible under the Road Rules and “potentially unsafe”. The Appellant’s vehicle, which was travelling northbound, ran into the driver’s side of the Respondent’s vehicle and pushed it sideways until both vehicles came to rest in the southbound carriageway of the road. A 70 kph speed sign was on the left hand side of the northbound carriageway of the road at the spot where the vehicles came to rest. Since the accident, the 70kph sign has been replaced with a sign that contains a “70” in a red circle and also says “check your speed”.

12 The injuries sustained by the Respondent were so severe that she had no recollection of events leading up to or surrounding the collision. The Respondent was not called as a witness, and it was agreed between the parties that no adverse comment would be made as a consequence of the Respondent not being called.

13 The task of finding out the cause of the collision was made more difficult by the fact that the police officer who investigated the accident could find no debris indicative of the point of collision, or skid marks leading up to the resting place of the vehicles.

14 The only eyewitnesses to the collision who gave evidence were the Appellant and Ms Taisanthiah.

15 Some observation evidence that bore upon the manner in which the collision occurred was also given by Mrs Joane Ginnbert. She had been driving north on Wilfred Barrett Drive, behind the Respondent’s vehicle, and observed the Respondent pull her vehicle over into the breakdown lane. She drove past the Respondent’s stationary vehicle and turned left into the caravan park. She was the licensee of the caravan park, and regularly spent the night there. She gave evidence that, before turning to the left, she looked in her rear vision mirror and saw that the right side traffic indicator was flashing at the front of the Respondent’s vehicle. It was after she had entered the caravan park, and gone over a couple of speed bumps, that she heard the crash of the collision.

16 There was also expert evidence from two crash reconstruction experts, Mr Jamieson for the Respondent and Mr Stuart-Smith for the Appellant.

Was the Indicator Flashing?

17 There was a significant contest at the trial about whether the judge should accept Mrs Ginnbert’s evidence about seeing the right indicator flashing. Ultimately the judge accepted that evidence. That finding is attacked in the present appeal.

18 The precise evidence that Mrs Ginnbert gave about seeing the indicator flashing took up the sequence of events from the time that she passed the Respondent’s vehicle with its headlights on:

“Q. What happened? What did you notice? What did you do next? You’ve passed by the vehicle. What did you do next?
A. I looked in my rear vision mirror so – like so cars aren’t coming down because I had to indicate to turn into the caravan park.
Q. Yes.
A. And the white car was still parked there. I turned into the caravan park and there was a horrific bang.
Q. Did you notice anything about the white car parked on the left side of the road when you looked at it in your rear vision mirror as you were turning?
A. It had its blinker on.
Q. And do you remember which blinker it had on?
A. The right blinker.
HIS HONOUR
Q. How did you notice that?
A. Because I looked back through my rear vision mirror.”

19 She qualified her response to a question that suggested that she noticed the indicator when she was making her turn into the caravan park, by saying that she noticed it:

“A. When I slowed down.
Q. When you slowed down to make your turn?
A. Yes.”

In other words, her evidence was that she saw it before actually making the turn, but her evidence was not precise enough to state exactly where on the road she was when she saw the indicator.

20 Her evidence about the time interval between seeing the indicator and hearing the crash was:

“Q. Are you able to say how long it was after you saw the right blinker of this vehicle on that it was you heard the crash?
A. Not very long at all.
Q. Are you able to give us any idea how long it was? How far did you travel from seeing the blinker in the rear vision mirror to hearing the crash.
A. Maybe 200 metres. I’m not good with metres.
Q. Did you have to do that slowly or quickly?
A. No, slowly because I was turning and I’d stopped to turn into the caravan park.
Q. Did you have to go over anything?
A. Yes, I went over a hump, past the first caravan, got to the second caravan, so it would have been maybe five to ten seconds going over the humps and the bang.
Q. So about five to ten seconds between seeing the indicator and hearing the bang, is that right?
A. Maybe a little bit longer, yes.”

21 Mr Ginnbert’s evidence in chief was to the effect that at the time Wilfred Barrett Drive consisted of a single carriageway, with a gravel shoulder, and that the Respondent had driven her vehicle off the road onto the gravel.

22 In cross-examination she resisted suggestions that the area immediately to the left of the carriageway was bituminised.

23 It was clearly established that her evidence was wrong concerning the area to the left of the carriageway being gravel. The local council had carried out work in 2001 that had resulted in the construction of a sealed breakdown lane to the left of the northbound carriageway.

24 The evidence included three Google Earth aerial photographs of the site of the accident (Figure 3 in Mr Jamieson’s report, Figure 3 in Mr Stuart-Smith’s report and Exhibit 8). One of the three, taken in 2007, showed a shadow identifiable as the shadow cast by the 70kph sign and, on both the north and south sides of that shadow, vegetation close to, but not right up to, the left hand side of the road. There were various photographs of the site of the accident taken from ground level, in which that vegetation appeared to be fairly thick, and considerably taller than a motor vehicle. Some of those photographs were taken in August 2007, some in June 2008, and some in February 2005. The 2008 photographs show the vegetation growing on the roadside as being considerably taller than a car. The 2005 photographs (Exhibit 7) also show tall vegetation at the roadside, but were taken at a position to the south of the collision, as a sign warning of the presence of the caravan park is visible in them. Another photograph taken in February 2005 is taken from a point in the breakdown lane, 30m to the south of the 70kph sign: (Exhibits 3 and 4). In cross-examination Mrs Ginnbert was shown Exhibit 8, a Google Earth aerial photograph of the site, apparently taken in 2007. The cross-examination continued:

“Q. So does that help refresh your recollection that there was like a screen of bush between the road and the caravan park at least in the place where the Lancer was stationary beside the road?
A. It wasn’t that thick. The bushes wasn’t that thick. It wasn’t that healthy looking.”

25 Mrs Ginnbert was shown some photographs taken by Mr Jamieson in August 2007, that showed the then condition of the ground and surrounding vegetation, looking north at points identified by Mr Jamieson as being 30m and 50m south of the approximate point of impact. These were Figures 4 and 5 on pages 7-8 of Mr Jamieson’s report. She was also shown another photograph looking north from a point identified by Mr Stuart Smith as adjacent to the approximate point of impact, which he took to be 25m south of the 70kph sign. The third photograph was referred to as photograph 5. Her cross-examination continued:

“Q. And for instance in photograph 4 and also in – I’m sorry, figure 4 page 7 and figure 5 page 8 you just can’t see the entrance to the caravan park around the bend, can you.
A. No.
Q. No and that’s because, apart from anything else, one of the reasons why you can’t see it is because the foliage is in the way?
A. Yes.
Q. And it’d be fair to say, wouldn’t it, that from the entrance to the caravan park on 10 June 2004 you wouldn’t have been able to see back all the way to where the Lancer was parked, would you?
A. Yes because the – it wasn’t that thick and you could see the entrance to the caravan park.
…
Q. As I said, one of the reasons why you couldn’t see it perhaps was because of the foliage. Now--
A. Can I please say I drove on that road at least four or five times a week and I could see. When I was driving down the road I could see the entrance to the caravan park.

26 When shown the photograph taken by Mr Stuart Smith from his estimated point of impact, the cross-examination included:

“Q. I’m not suggesting that it’s entirely invisible at all places. But you can see, can’t you, that for instance by the time you get to the sign which says “Check your speed” the entrance to the caravan park is clearly visible, is it not? I’ll show you this photograph again, photograph 5.
…
Q. So from before you get to that sign [ie the 70kph sign] the caravan park is clearly visible. That’s right, isn’t it?
A. Yes.”

In other words, her evidence was that from the estimated point of impact the entrance to the caravan park was visible on Mr Stuart-Smith’s photograph 5. The cross-examination on visibility of the entrance to the caravan park proceeded no further.

27 I mention at this stage that the Google Earth photograph contained in Mr Stuart-Smith’s report shows that the entrance to the caravan park lies to the south of where the first house on the eastern side of Wilfred Barrett Drive is located after the reserve. Photograph 5 shows that house, and also shows, on the western side of the road, two low rails running roughly perpendicular to the road.

28 Mrs Ginnbert was asked to identify those rails.

“Q. Beyond that in the photograph, there are some Koppas Log type rails in a fence. Can you see that?
A. Yes, yes.
Q. Is that the entrance to the caravan park?
A. Yes.”

29 Indeed, in the original of photograph 5 (that was tendered as part of exhibit 9, and is considerably clearer than the reproduction in the appeal book) a dark strip that is consistent with being the road to the caravan park is visible beyond the second of those rails. That rail is visible in the Google Earth photograph that is exhibit 8, and the road leading into the caravan park is just to the north of that rail in that photograph.

30 Mr Deakin QC, counsel for the Appellant, submits that the geometry of the site shows the evidence of Mrs Ginnbert as to the indicator to be glaringly improbable, because her line of sight would have been blocked by foliage. I do not agree that her evidence should have been rejected on that ground. Given that she said she saw the indicator before she turned, that in Mr Stuart-Smith’s photograph number 5, taken from 25m south of the 70kph sign, the rail marking the turn into the caravan park is visible, and that even in the original of Mr Stuart-Smith’s photograph number 4, taken from the carriageway 25m before his estimated point of impact, that rail is also visible, I would not conclude that Mrs Ginnbert’s evidence is improbable in the relevant sense. Indeed, her cross-examination proceeded on a basis that accepted that from the position 25m south of the 70kph sign the entrance to the caravan park was visible.

31 In concluding that her evidence was not shown to be wrong, I take into account that Mr Stuart-Smith’s photograph 5 was taken from the carriageway, not from the breakdown lane, and that there is no basis in the evidence of direct observation that enables a finding to be made about how far back from the point of impact the Respondent’s vehicle was parked in the breakdown lane, before she began the U-Turn. However, on the basis of some calculations by Mr Jamieson, as modified by the judge, his Honour found that the front of the Plaintiff’s vehicle was parked in the breakdown lane about 25m to the south of the 70kph speed sign. That finding was not challenged in the appeal. The finding would still allow the entrance to the caravan park to be seen from the extreme right hand edge of the vehicle, where the relevant indicator light was located.

32 Mrs Ginnbert had made a statement to the police on 19 June 2004, ie nine days after the collision. It said:

“About 6.30pm – 6.45pm on Thursday 10/6/04 I was driving my car from The Entrance back to my holiday van in the Two Shores Caravan Park (North). I was following a white Mitsubishi Lancer. I saw the Lancer pull over to the left of the road just before the entry to the caravan park. I then passed the Lancer and turned into the park. As I was driving into the caravan park when [sic] I heard a loud bang. I then went back down the road and saw the same white Lancer had been hit on the driver’s side doors by the front of a big four wheel drive with a bull bar. The four wheel drive had pushed the Lancer onto the other side of the road. I saw that a man was already helping the woman that was injured.”

33 Manifestly, that statement made no mention of seeing the right indicator flashing, or of looking to the rear before turning into the caravan park. The plaintiff’s particulars made no mention of the flashing right indicator, and the plaintiff’s expert crash assessor, Mr Jamieson, was not instructed to make any assumption about there being a flashing right indicator. The first that the lawyers for the Appellant heard about evidence of a flashing right indicator was on the morning that Mrs Ginnbert gave her evidence.

34 She explained her failure to mention the indicator to the police officer on the basis that she had not been asked about it. She said that the first time anybody had asked her any questions about the indicator on the Lancer was the day before she gave her evidence.

The Judge’s Treatment of Mrs Ginnbert’s Evidence

35 The judge did not regard the clear mistake that Mrs Ginnbert made about the side of the roadway being gravel as something that required him to reject her evidence on other matters. Photographs of the roadway taken after it had been widened to include the sealed breakdown lane showed that the strip of roadway constituting the widening was of a different colour to the carriageway, and was a lighter brown. As well, those photographs showed that the widened strip sometimes had pieces of gravel flicked onto it.

36 The judge accepted Mrs Ginnbert’s explanation for why she had not mentioned the indicator in her police statement, and said that in his view “the evidence from Senior Constable Baird as to the manner in which he obtained statements from witnesses does not render Mrs Ginnbert’s explanation improbable or unlikely.”

37 The judge noted at para [79] that there was no evidence to “directly contradict” Mrs Ginnbert’s evidence of observing the right indicator. It was only at a later stage of his judgment, at para [173], that he considered the photographic evidence concerning roadside vegetation. When he considered that evidence, it was not for the purpose of deciding whether to accept Mrs Ginnbert’s evidence (because he had already accepted it) but for the purpose of considering from what distance the Respondent’s vehicle ought to have been visible to the Appellant as the Appellant’s vehicle entered the curve. The use he made of the photographic evidence about vegetation at that stage was to apply Mrs Ginnbert’s evidence, that the vegetation was not as thick in June 2004 as it was depicted in some of the photographic evidence, to his reasoning about the state of the vegetation at the side of the roadside between the Respondent’s vehicle and the Appellant’s vehicle as the Appellant was rounding the curve towards the Respondent’s vehicle. While he did not specifically deal with the evidence relating to whether the photographic evidence showed that the vegetation at the side of the road made Mrs Ginnbert’s account inconsistent with the physical state of the area, that is hardly surprising considering the way that Mrs Ginnbert’s cross-examination on that topic concluded (para [26] above), and the fact that no mention was made of it in address by counsel for the Appellant at trial.

38 The judge approached the question of whether the indicator was on in two stages. Mrs Ginnbert was well beyond the point of impact at the time the collision occurred. She had also passed that point at the time the Appellant came sufficiently far around the curve to have the Respondent’s vehicle in view. On the basis of Mrs Ginnbert’s evidence alone, the judge accepted, at para [85] of his judgment, that the Respondent’s indicator was on at the time Mrs Ginnbert said she saw it. Having reached that conclusion, he then asked:

“Was the right indicator still flashing on the Plaintiff’s parked vehicle at the time when the Defendant’s vehicle entered the curve and when the Plaintiff’s parked vehicle first came into the Defendant’s view?”

39 It was in connection with that question that he considered the evidence of the Appellant and Ms Taisanthiah concerning whether the indicator was on.

40 I say at the outset that this process of reasoning was mistaken. One of the allegations of the Respondent was that the Appellant should have seen the indicator operating on the Respondent’s car and modified her driving to take account of the evident intention of the Respondent to move to the right. An issue the judge needed to decide was whether the indicator was on during the time that the Appellant had the Respondent’s car in view. Mrs Ginnbert’s evidence was relevant to that topic, because if it were right, the comparatively short time that passed between Mrs Ginnbert’s observation and the collision, combined with there being no reason one could infer from the surrounding circumstances why the Respondent was likely to have turned the indicator off (particularly when her headlights were illuminated the entire time) could lead, through a presumption of continuance, to an inference that the indicator was still on at the relevant time. However, there was also direct observation evidence from the Appellant and Ms Taisanthiah about whether the indicator was on during the period when the Respondent’s car was visible to the Appellant. The judge should have considered that evidence along with that of Mrs Ginnbert in deciding whether the indicator was on at that time.

41 I recognise that sometimes it is possible for a judge to reject the evidence of a witness without weighing it against that of other witnesses. This may be the case if the first witness gives an account that is inherently extremely unlikely, or is contradicted by clearly established objective facts, or in rare cases if the demeanour of the witness is such that the judge has no confidence that the witness is reliable. However, it also happens that evidence of a witness that might well be accepted if it were the only evidence on a topic, is ultimately not accepted in the light of other evidence. The reasons that the judge gave relating to Mrs Ginnbert’s testimony led, it seems to me, to a conclusion that her evidence was not such as could be rejected because of inherent improbability or incompatibility with established facts, or demeanour. That conclusion did not mean that the judge should therefore have accepted her evidence as sufficient to establish that the indicator was on at the time Mrs Ginnbert says she saw it. The judge was in error to treat her evidence in that way.

Ms Taisanthiah’s Evidence Concerning the Indicator

42 Ms Taisanthiah gave her evidence through a Thai interpreter. The Appellant normally gave her a lift home from work. On the day in question, at a time she put as “probably was close to seven [pm]”, her evidence in chief was that they set off from their workplace in The Entrance, heading north:

“Q. But as you went along the road over the bridge, did you notice something?
A. INTERPRETER: I saw a white car that was parked near the 70 sign.
Q. Where was it parked?
A. INTERPRETER: On the side of the road.
Q. Did you notice anything about the car?
A. INTERPRETER: I just saw it parked there. I wasn’t interested in anything else. I saw that the lights were on.
Q. Which lights were on?
A. INTERPRETER: Red lights.
…
Q. As the car you were travelling in approached the place where the car was parked, did anything happen?
A. INTERPRETER: All I saw was a shadow or shape come out suddenly and there was a bang. It happened so fast.
Q. Are you able to tell his Honour now how close the car you were travelling in was to the place where the car was parked when you noticed that sudden movement.
A. INTERPRETER: I’m not really sure, but probably about three metres.”

43 In cross-examination she was asked about how close the car was parked to the sign:

“A. INTERPRETER: I didn’t know how close it was because I didn’t notice or take notice.
Q. Because you weren’t taking any notice? Is that the situation?
A. INTERPRETER: Yes that’s right.”

44 She reiterated that she was “probably about three metres” back from the stationary car when she first saw it. The cross-examination continued:

“Q. I want to suggest to you that the stationary vehicle was in your line of sight for at least 100 metres?
A. INTERPRETER: I’m not sure. I don’t even know how long 100 metres would be.
…
Q. … Is the situation this that you weren’t paying much attention to what was going on outside the vehicle as you sat there being driven along home by Mrs Dunleavy, is that right?
A. INTERPRETER: The only thing I noticed was noticing a white car parked with it’s lights on near the 70 sign coming home and then it pulled out with a loud bang and I, I said shit.”

45 Ms Taisanthiah was sitting in the middle seat of the three seats at the front of the vehicle, because the passenger seat was intruded on by some wood. When asked about how fast the vehicle was travelling she said:

“A: INTERPRETER: Under 70. I knew it was under 70 because I was sitting next to her and saw it wasn’t over 70.
Q. Do you mean you were looking at the speedometer?
A. INTERPRETER: Yes. I was sitting beside her and I saw the needle that was under 70 so I could see it from where I was sitting.
Q. So your focus of attention was on the instrument panel of the vehicle was it?
A. INTERPRETER: I just saw the needle under 70. I noticed the needle under 70.”

46 The cross-examiner returned to the question of from how far back the Respondent’s vehicle was in view:

“Q. I want to suggest that you can see the place where the car was stationary on the side of the road for about a hundred metres before it?
A. INTERPRETER: I don’t know. I don’t know how far a hundred metres is.
Q. But is it your evidence that you – and I’m still not certain what you say – but is it your evidence that when you first saw the vehicle stationary on the side of the road, you were only a few metres away from it?
A. INTERPRETER: When I could see it very clearly it was about three metres.”

47 She identified a particular power point in the court as being 3 metres away from where she was. The parties later agreed that the distance she indicated was 14.5 metres. She asked a question, which no one answered for her, “Is metres the same as what is in Thailand?”

48 Later she said in response to a question:

“Q. I want to suggest to you that as to distances and times, you really have no accurate idea of those matters?
A. INTERPRETER: I don’t know about the time because I wasn’t checking the time and I don’t know whether measurements here or in Thailand are the same, I can’t judge it.”

49 Her evidence included:

“Q. I want to suggest to you that when you first saw the vehicle stationary on the side of the road ahead of you, its right hand indicator was flashing.
A. INTERPRETER: No it didn’t have its blinker on – its indicator on.
Q. And I want to suggest to you that when you saw the vehicle just before the collision it had its right indicator flashing.
A. INTERPRETER: No.”

50 They were the only questions directed to her, either in examination in chief, or cross-examination, concerning whether the indicator light was flashing.

The Appellant’s Evidence

51 On the night of the collision the Appellant gave the police a written statement that included:

“About 6:40pm, on Thursday the 10th of June 2004, I was driving home from work with a work friend who I know as Wan. She was seated in the front passenger’s seat.
I was driving my car which is a Toyota Landcruiser, registration no. QEA-571. I was travelling north on Wilfred Barrett Drive, North Entrance at about 60 to 70 km/h. I was travelling around a left-hand bend approaching the Two Shores Caravan Park. At the time, there were no other cars directly in front of me that I could see and I was driving with my headlights on.
I saw another white car that was pulled over to the left of the road, just off the roadway. The next thing I seen [sic] was just white in front of me. The car turned straight out in front of me as if the driver was doing a U turn. The car only pulled out as I was at the back of the car. I had not time to brake or do anything. I just remember hitting the other car and then putting on the brakes. My car slid, pushing the other car onto the other side of the road. We both came to a stop. The front of my car collided with both front and rear driver’s side doors of the other car.”

52 That was the only part of the statement that dealt with events leading up to the collision, apart from an uncontroversial description of the weather and road conditions.

53 In her evidence at the trial, the Appellant said that on the night in question she was travelling along Wilfred Barrett Drive at 60 kph. Because of the lighting conditions on Wilfred Barrett Drive, she would have turned her lights up to high beam if there was no oncoming traffic, and to low beam if there was oncoming traffic. She said she first saw the car she collided with “as I was on the bend”. Here evidence in chief included:

“Q. And was there anything about [the white car] that you noticed when you first saw it?
A. It had the tail lights or brake lights on, the red lights at the back of the car.
Q. Could you tell whether it was tail or brake lights that you were seeing?
A. No, I couldn’t.
Q. Did you notice any other lights on the car at all?
A. I didn’t.
Q. Now, when you first saw that car, did you do anything?
A. I moved over slightly to the double yellow lines, just out of courtesy, in case the driver was getting out of the vehicle.
…
Q. When you saw it in front of you, did you do anything?
A. I put on my brakes.
Q. Did something happen?
A. There was a collision, yeah.
Q. Are you able to say when in relation to the collision you actually got your foot on your brake?
A. Sorry, can you repeat the question?
Q. Yes. Are you able to say when in relation to the occurrence of the vehicle collision you got your foot on to the brake?
A. It really happened very quickly.
Q. What happened very quickly?
A. The accident happened very quickly.
Q. So are you able to answer my question?
A. I’m not 100% sure, but I did put on the brakes.
…
Q. In what manner were you applying the brake?
A. As hard as I possibly could.
…
Q. Now, you’ve heard Ms Ginnbert’s evidence in court because you were present at the time?
A. Yes.
Q. And did you hear that she gave evidence about an indicator?
A. Yes.
Q. What do you say about whether or not the Lancer was showing an indicator as you approached it?
A. It wasn’t showing an indicator.”

54 In cross-examination, the Appellant was reminded of her police statement:

“Q. … “I had no time to brake or do anything”. Now is that correct, you did not brake at any time before the impact?
A. I said I’m not 100% sure.
…
Q. And you told the police that you did not brake before the impact; that’s correct, isn’t it?
A. If that’s what they wrote there, yes.
Q. That’s the fact, isn’t it, you did not brake at all before the impact?
A. I don’t know that it’s a fact.
Q. So can I just understand this: are you saying you don’t know it’s a fact now because your memory’s not as good as it was at the time?
A. I’m saying that the accident happened very, very quickly.
Q. Could you please answer my question: are you saying that you can’t say now in 2008 whether you braked before impact or are you saying that you know, or are you saying that even at the time of the accident you couldn’t be sure whether you braked or not before the impact; do you understand the distinction?
A. I understand, yes. I’m saying that the accident happened very quickly and that statement that I wrote to the police was just after the accident and I was very emotional and--
Q. You were very lucky?
A. I was very emotional and I wanted to get home to my children on that night after the accident.”

55 In her cross-examination she was taken through her observations immediately before the collision. The evidence included:

“Q. And you were clearly able to see as you came around the bend ahead of you a vehicle stationary in what we’ve called the cycle lane?
A. Yes.
Q. With its taillights on?
A. Yes, or taillights or brakelights, yes.
Q. Red lights?
A. Red lights, yes.”

There was no challenge to her evidence that she saw the red lights at the back of the vehicle.

56 The cross-examination included:

“Q. And you say that you pulled over closer to the centre of the road because you did think the vehicle could present a hazard to you?
A. I did it out of courtesy.
Q. It was a little bit more than out of courtesy, wasn’t it? You did it because you realised that that vehicle could present, could present some form of hazard to you?
A. I was thinking that maybe someone could have got out of the car and I
…
Q. That would be a potential hazard – the vehicle posed to you a potential hazard because you may have collided with the door if it was open?
A. Yes.”

She was not challenged on her evidence about pulling over closer to the centre of the road.

57 She was reminded of the part in her police statement where she said, “the car only pulled out as I was at the back of the car”:

“Q. What you said was, the car only pulled out as I was at the back of the car. Are you saying today that you agree with that, or you were so close to the back of the car, for all intents and purposes it was the same?
A. I’m saying when I approached the vehicle that was in the breakdown cycle lane I was very close to it when it did a U-turn in front of me.”

58 She said:

“Q. What you told the police was, that the car only pulled out as I was at the back of the car, so does that mean that the front of your car was level, or so level for all intentions, it was level with the rear of the car in the cycle lane?
A. I wouldn’t say that it was at the rear, but as I got very close to it, it did a U-turn – I’ve just sort of explained it that way in the statement as a short statement.

59 She was cross-examined about the extent to which she was paying attention to the parked vehicle:

“Q. I’m putting to you that the reason you didn’t see the vehicle, between when you first came aware of it and saw it as you come round the bend and the point when it was directly in front of your vehicle on the roadway, is because you were not paying attention?
A. I wasn’t looking at the vehicle to the left of me. Are you saying, not paying attention, I haven’t got my eyes on the vehicle to the left of me, I’m not driving like this.
Q. You wouldn’t need to be, as you’ve indicated with your head turned at least 90, if not more degrees to your left, as you come round the sweeping bend the vehicle, if you paid attention to it, would have remained in your field of vision, wouldn’t it?
A. I’ve paid attention to it because I’ve seen it there and I’ve seen the brake lights.
Q. But after seeing it there and seeing the brake lights, you conceded that you did not see it again until it was directly across the path of your vehicle immediately before the collision?
A. I know the vehicle is there to the left of me because I’ve paid attention to it that it’s there, I know it’s there.

Q. I’m suggesting to you that you did not pay attention to the vehicle and that explains why there was that gap between when you first saw it and the next time you saw it when it was across the path of your vehicle immediately before the impact, do you agree with that?
A. I’m not agreeing with you, you’re saying that I wasn’t paying attention to it, I don’t agree that I wasn’t paying attention to it.”

60 She rejected emphatically the suggestion that the indicator was on:

“Q. I want to suggest to you that for at least 90 metres before you reached the point where the impact occurred, that white vehicle stationary in the cycle lane had its right indicator flashing?
A. I’ve told you previously that the vehicle that was pulled over, the Lancer did not have a blinker on, either the right one or the left one.
Q. And I want to suggest to you madam that that answer is untruthful?
A. Well I want to answer to you, Sir, that I’m sitting in here at court under oath telling you that her blinker was not on. Either the right one or the left one wasn’t on.”

She continued to reject suggestions that the indicator was on.

61 After the appellant had repeatedly rejected suggestions that she was not paying attention to the parked vehicle, the cross-examination continued:

“Q. Yes. If there was a gap in your seeing this vehicle stationary in the cycle lane from just after you first observed it stationary there and the moment before impact when it was across the path of your vehicle, how can you say whether or not the indicator was on? Do you follow what I’m putting to you?
A. And I’ve told you prior to the indicator question that you gave to me, the accident happened very, very quickly.
Q. Well, according to you, you were almost, if not level, with the back of the stationary vehicle very close to it. That’s what you say isn’t it?
A. Yes.”

The Judge’s Treatment of the Evidence of the Appellant and Ms Taisanthiah

62 In recounting Ms Taisanthiah’s evidence, the judge noted that she could not give any more precise description about where the Respondent’s vehicle was parked than that it was near the 70kph speed limit sign. He noted her evidence about seeing the rear red light of the Respondent’s vehicle, but said:

“In my view her evidence in this regard is of little assistance in determining the issue as she did not observe much detail at all as is apparent from her answer when she was asked to describe what happened.”

63 The judge then set out the final two questions and answers that I have set out at para [42] above. He noted her confusion over what 3m was, and said “this evidence nevertheless caused me to entertain significant doubts over the reliability of Ms Taisanthiah’s stated observations”. As a matter of logic I have difficulty in seeing how her evident difficulty in estimating distances in metres, when she came from Thailand, did not have an Australian driving licence at the time of the accident, and there is a question unresolved on the transcript about whether metres are the units of measurement used in Thailand, provides a ground for doubting her observation evidence as to whether an indicator was flashing. It may be that his Honour’s remark should be treated as one concerning demeanour, but he did not make it clear that this was his intention.

64 The judge said (at [105]):

“In my view it is not surprising that Miss Taisanthiah did not see a flashing indicator light on the Plaintiff’s vehicle having regard to the fact that her vision was directed to the Defendant’s speedometer whilst she was observing the speed of the Defendant’s vehicle. I find that in these circumstances she would have had very limited if any opportunity to see whether the indicator light was operating on the Plaintiff’s vehicle.”

65 He found (at [109]):

“I find that for a number of indeterminate seconds before the collision Miss Taisanthiah was not looking at the roadway ahead but was instead looking towards the dashboard and the speedometer of the Defendant’s vehicle in order to enable her to make her observation of the speed at which the vehicle was travelling. In such circumstances she would not have been expected to have seen what was happening in the Plaintiff’s vehicle after she had first caught sight of it in its parked position sometime earlier. This must have been the case for otherwise she would not have been able to make the observation she made of the speed of the Defendant’s vehicle at this time.”

66 The judge referred to the final question and answer I have quoted at para [49] above, and said (at [111]-[112]):

“I do not accept Miss Taisanthiah’s denial concerning the Plaintiff’s right indicator because her denial is inconsistent with her earlier quoted testimony that all she saw was a shadow, a white car or a shape come out suddenly from the parked position.
I find as a fact that she did not have an opportunity to make the observation concerning the state of operation of the blinkers on the Plaintiff’s vehicle because her attention had been distracted by viewing the speedometer on the Defendant’s vehicle.”

67 By this reasoning, the judge concluded that Ms Taisanthiah:

“… did not see an indicator operating on the Plaintiff’s vehicle notwithstanding that it was there to be seen to be operating had she been looking long enough in the direction of the Plaintiff’s parked vehicle when that vehicle came into her view.”

68 This process of reasoning cannot stand. There is no basis in the evidence for the finding that it was “for a number of indeterminate seconds” that Ms Taisanthiah was not looking at the roadway, but instead was looking at the dashboard and speedometer. Reading a speedometer is something that is capable of being done in a brief glance. Ms Taisanthiah did not give an unqualified affirmative to the cross-examiner’s proposition that her focus of attention was on the instrument panel of the vehicle. Since her unchallenged evidence was that she actually saw the red lights at the rear of the Respondent’s vehicle, it is hard to comprehend how she could not have seen an indicator flashing, if indeed it had been flashing. Police photographs of the Mitsubishi Lancer immediately after the crash show that there is a single wedge-shaped housing at the rear of the side of the car that would house both the right tail light and the right indicator.

69 The judge’s reasoning that Ms Taisanthiah’s denial of seeing the right indicator was “inconsistent with her earlier quoted testimony that all she saw was a shadow, a white car or a shape come suddenly out from the parked position” ignored the fact that Ms Taisanthiah gave that evidence as part of a sequential account (that I have quoted at para [42] above) of her observations on the evening, part of which was that she saw the red lights at the rear of the Respondent’s car. Her evidence that “all I saw was a shadow or shape come out suddenly and there was a bang” does not purport to be a full account of her observations relating to the parked vehicle, only an account of what happened “as the car you were travelling in approached the place where the car was parked”, and after the red lights were seen. When Ms Taisanthiah repeated her account in cross-examination (quoted at para [44] above), she again said that she noticed that the car was white, and that it had its lights on. Finally, the judge’s reasoning proceeds on the basis of having already accepted Mrs Ginnbert’s evidence about seeing the right indicator flashing, a method of reasoning that I have already said at [40] is mistaken.

The Judge’s Treatment of the Defendant’s Evidence

70 The judge quoted the last question and answer that I have quoted at para [61] above, and said (at [118]):

“I find the Defendant’s answer to the forgoing question to the effect that her vehicle was almost level with the back of the Plaintiff’s vehicle when the Plaintiff’s vehicle pulled out to be palpably wrong.”

71 The basis on which he found it to be “palpably wrong” was that he accepted evidence from Mr Jamieson that it would have taken about three seconds for the Respondent to move from being at rest to the point of impact. The judge reasoned that “In that period of about 3 seconds, at 60kph or 16.7m per second the Defendant’s vehicle would have travelled over a distance of some 50m if not slightly more.” In fact 60kph is 16⅔m per second, so in three seconds a vehicle travelling at 60kph travels exactly 50m. The judge went on to reason (at [120]):

“… on that analysis, the Defendant’s vehicle could not have been level with the rear of the Plaintiff’s vehicle as that vehicle pulled out in front of the Defendant as was alleged by the Defendant. In my view it therefore follows that the Defendant’s account of the event as she described it must be wrong.”

72 The judge then went on (at [121]-[122]):

“The Defendant’s improbable answer to the effect that she was almost level with the rear of the Plaintiff’s vehicle when the Plaintiff’s vehicle turned leads me to the view that the Defendant has incorrectly reconstructed her evidence concerning the events leading up to the collision. I am reinforced in this view because of the answer given by the Defendant in cross-examination, when it was put to her that the Plaintiff’s indicator was flashing when the Defendant was at least 90m from the point of impact she stated:
‘A. I’m not aware of what 90 metres is. But the blinker was definitely not on.’
That evidence has also led me to doubt the correctness of the Defendant’s account of the events. This has led me to the conclusion that the evidence given by the Defendant concerning the events leading up to the collision was based on unreliable reconstruction on her part rather than actual recollection of the events.”

73 It is inaccurate to say that the Appellant’s evidence was that her vehicle was “level with” the rear of the plaintiff’s vehicle as that vehicle pulled out. The proposition she agreed with was that she was “almost, if not level, with the back of the stationary vehicle very close to it”.

74 In the cross-examination, in the question and answer quoted at para [58] above, she had denied that when the white car pulled out the front of her car was level with the rear of the white car in the cycle lane. Rather, her evidence was that she was “very close to” the parked car when it pulled out.

75 That evidence needs to be understood in the frame of reference in which it was given, namely that of the observations of the driver of a moving vehicle. It is not the frame of reference of, say, a crash reconstruction expert making precise measurements of distances and angles. I see nothing at all unusual in the driver of a vehicle travelling at 60kph who, when her vehicle is 50m away from the back of a car parked at the roadside, sees that car start moving and begin to execute a U-turn across double lines in front of her, saying that the car pulled out when the driver’s car was “very close to it”. In my view the judge was in error in using in the way he did the Appellant’s evidence about the relative locations of her vehicle and the Respondent’s vehicle when the Respondent’s vehicle pulled out as a basis for concluding that the Appellant had incorrectly reconstructed her evidence.

76 The judge’s ultimate conclusion on this topic was (at [127]):

“I find that the Plaintiff’s right indicator was on and flashing and was available to be seen throughout the interval of time during which the Defendant approached the collision site. I find that the reason the Defendant did not observe the operation of the Plaintiff’s indicator is that she was not keeping a proper lookout as she approached the scene where the collision occurred.”

77 In reaching this conclusion, the judge does not deal with the Appellant’s unchallenged evidence that she saw the Respondent’s vehicle and moved closer to the centre of the road in response, and that she saw the red lights on the Respondent’s vehicle. In particular, he did not deal with how she could have seen the rear lights illuminated, without also seeing an indicator flashing, if it had been flashing. As with the way the judge dealt with Ms Taisanthiah’s evidence, his reasoning concerning the Appellant’s evidence on the topic of the indicator is affected by his erroneous methodology in accepting Mrs Ginnbert’s evidence on that topic, without having given consideration to the evidence of Ms Taisanthiah and the Appellant on that same topic.

78 In these circumstances, the finding that the indicator was flashing during the period immediately before the collision cannot stand. Mr Deakin invited this Court to make its own findings on that question. In my view it is not possible to do so, as deciding that question would involve deciding questions of credibility that cannot be decided on the basis of a transcript alone. It would be unsafe for this Court to rely upon the trial judge’s view of the credibility of the witnesses when there is a real risk that those views have been affected by the errors in the trial judge’s reasoning process.

79 In these circumstances, the reasoning so far would lead to a conclusion that the judgment below should be set aside, and the matter remitted for retrial.

Ground 2 – Contingent Finding of Negligence

80 The basis upon which the judge found the Appellant had been negligent included findings that she was travelling at 60kph, and did not apply her brakes or decelerate at all in the period before the impact. He found at [176] that the Respondent’s car was parked on the bitumen cycleway, with its front about 25m to the south of the 70kph sign, and its rear approximately 30m to the south of that sign. He made two findings about the distance in which the Appellant had the opportunity to observe the Respondent’s vehicle. At [174] he said:

“I find that the Defendant ought to have seen the rear of the Plaintiff’s vehicle at a point about 120m south of the 70kph speed limit sign.”

81 However at [182] he said:

“I find that it is more probable than not that the Defendant had a view of at least 100m if not 120m line of sight to the rear of the Plaintiff’s vehicle at the first moment the Plaintiff’s vehicle was available to be seen by the Defendant.”

82 If the rear of the Respondent’s vehicle was 30m from the sign, those two findings could not both be right.

83 The judge thereafter reasoned on the basis of adopting the 100m to 120m line of sight finding. He reasoned that the Appellant would have travelled that distance in six or seven seconds, assuming there was no braking. He accepted expert evidence that a driver perception reaction time of 1.5 seconds was a reasonable assumption for a driver on an urban road at night. He found that the Appellant should have decreased her speed on first sighting the rear of the Respondent’s parked vehicle, and should have done so by applying the brakes. Given the distance that she would have travelled in the reaction time, the Appellant would have been at least 75m to 95m away from the Respondent’s vehicle at the time she began to slow. He found that the Appellant should have both flashed her headlights and sounded her horn upon seeing the Respondent’s vehicle. Had the Appellant slowed, that would have given the Respondent the “fraction over a second” that, at the Respondent’s estimated turning speed of 5.5m per second, would have been needed for the Respondent to move her vehicle further into the U-turn and out of the path of the Appellant’s vehicle. The judge also found that it would have been a reasonable manoeuvre for the Appellant to swerve, and steer a course behind the Respondent’s turning vehicle. He concluded, at [221]:

“In my view the Defendant should have, in sequence, decelerated, braked, flashed her lights, sounded her horn and steered or swerved slightly to the left to move behind the Plaintiff’s turning vehicle. In my view, had she done so the collision would not have occurred.”

84 On his way to this conclusion the judge said, at [207] concerning flashing headlights and sounding her horn:

“In my view both of these measures were reasonable and prudent steps that she should have taken in the circumstances because, in my view she should have anticipated the possibility of the Plaintiff making a turn across her path. This would have been my view irrespective of whether or not the Plaintiff’s right indicator was flashing, as the Defendant ought to have anticipated the presence of possible danger. Manley v Alexander (2005) 80 ALJR 413.”

85 The judge’s reasoning on negligence was premised on there having been a flashing indicator.

86 Mr Deakin submits that the contingent finding of negligence in para [207], that even if the right indicator had not been flashing the Appellant failed to take reasonable and prudent steps, cannot stand, as it is supported by inadequate reasons. I agree. In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Meagher JA at 442 accepted that “… a judge is bound to expose his reasoning in sufficient detail to enable a losing party to understand why they lost”. His Honour accepted, at 443 that one of the “fundamental elements of a statement of reasons” was that there should be “reasons in applying the law to facts found”.

87 The majority judgment of Gummow, Kirby and Hayne JJ in Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413; 223 ALR 228 at [11]-[12] accepted that:

“Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle’s path.
… the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.”

88 The issue in Manley concerned whether a driver had been negligent when, while driving at night, he took his eyes off the road for two or three seconds to look at a potential source of danger at the side of the road, and because he was looking to the side of the road did not see that a man was lying in the roadway until it was too late for the driver to avoid running over him. The conclusion of the majority judgment, at [14] was:

“It was well open to the Full Court to conclude, as it did, that the Appellant had failed to exercise reasonable care. “

89 Thus, the ratio of the case concerns whether a particular decision on a question of fact, namely breach of duty, was open to the Full Court. There is nothing in the reasoning to suggest that the duty of a driver of a motor vehicle is anything other than to exercise reasonable skill and care in all the circumstances.

90 In Hawthorne v Hillcoat [2008] NSWCA 340; (2008) 51 MVR 523 at [47] Hodgson JA, with whom Ipp JA and Gyles AJA agreed said of Manley:

“… it is noteworthy that their Honours used the words “may know” and not “knows” or “will know” . I do not suggest that, in their context, the words “may know” mean merely “might possibly know” . However, the words certainly do not mean “knows” or “will know” . In my opinion, the best understanding of the words can be expressed as “is in a reasonable position to know” . The standard in respect of the position a driver should be in so as to be able to take reasonable steps to react to events is itself a standard of reasonable skill and care; and although the standard of reasonable skill and care required of drivers is a high standard (because cars are so dangerous, and can so easily cause serious injuries), it is not a standard measured by success or perfection assessed with the wisdom of hindsight.”

91 In my view, adequate reasons for a conclusion that failure of the Appellant to flash her headlights and sound her horn upon seeing the Respondent’s vehicle parked in the breakdown lane, with its taillights illuminated but no indicator flashing, would require some explanation of the risk that such a vehicle might be seen to pose, and of why sounding the horn and flashing the lights was a reasonable response to any such risk. There is no such explanation.

92 Further, a finding of the tort of negligence (as opposed to a negligent act) in those circumstances would require some consideration of whether failure to flash the lights and sound the horn in those circumstances was a cause of the accident. Even if it were the case that failure to do so increased the risk of a collision occurring between the two vehicles (a topic on which I express no view), that would not be enough by itself to show that failure to take those steps caused the accident: Flounders v Millar [2007] NSWCA 238; (2007) 49 MVR 53; Warren v Gittoes [2009] NSWCA 24; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [240]; Gittani Stone Pty Ltd v Pavkovic [2007] NSWCA 355; [2007] Aust Torts Reports ¶81-924. The trial judge has not considered causation of damage, an essential element of the tort of negligence. That provides a separate reason why the judge’s finding at para [182] is insufficient to enable the judgment to stand.

Ground 3 – Contributory Negligence

93 In circumstances where there must be a new trial, no useful purpose would be served by considering whether the trial juge arrived at a correct apportionment of responsibility between the parties on the basis of the facts as found by him.

Ground 4

94 This ground has been abandoned.

Ground 5 – Costs

95 This ground related to an order for indemnity costs that the trial judge made on the basis of an offer of compromise that the Respondent had made. The setting aside of the orders below will also involve the setting aside of the costs order. In that circumstance there is no occasion to consider whether the trial judge was correct in ordering indemnity costs.

Orders

96 As mentioned in para [5], orders were made in the court below on two separate occasions. The intent of the orders I propose is that the orders made on both 10 October 2008 and 7 November 2008 should be set aside.

97 In my view the appropriate orders are:

(1) Set aside the orders in the court below.

(2) Remit the matter to the District Court of New South Wales for a retrial.

(3) Order the Respondent to pay the costs of the Appellant of the appeal, the Respondent to have a certificate under the Suitors’ Fund Act 1951 if qualified.

(4) Reserve the costs of the first trial to the judge who conducts the retrial.

98 SACKVILLE AJA: I agree with the orders proposed by Campbell JA and with his Honour’s reasons. I add a brief comment.

99 Mr Hennessy SC, who appeared for the Respondent, acknowledged in argument that upholding the primary Judge’s finding that the Appellant had failed to keep a proper lookout and had thus deprived herself of the opportunity to observe the Respondent’s flashing indicator, faced significant difficulties. His Honour found that the Appellant had seen the Respondent’s brake lights as she (the Appellant) rounded the curve in the road as she travelled north. The Appellant had apprehended a risk that someone might alight from the Respondent’s vehicle. She accommodated that risk by moving towards the centre of the road, thereby demonstrating (as his Honour found) an “alert recognition [of a] potential hazard ahead”. His Honour did not explain how it was possible for the Appellant to have kept a sufficient lookout to observe the brake lights on the Respondent’s vehicle and to take alert action in response, but not to have observed the flashing indicator which he found was in operation at all material times.

100 In the light of these difficulties, Mr Hennessy placed considerable reliance on the alternative argument that, even if the Respondent’s indicator had not been flashing, the Appellant had been negligent in failing to take steps to avoid the collision.

101 It is not entirely clear to me that the primary Judge intended to find that, even if the Respondent’s indicator was not flashing, the Appellant had been negligent and that her negligence caused the collision. His Honour made a finding (at [207(f)]) that the Appellant should have flashed her headlights and sounded her horn upon seeing the Respondent’s vehicle, because she should have anticipated the possibility that the Respondent would make a U-turn across her path. In addition, his Honour said that this would have been his view whether or not the right indicator on the Respondent’s vehicle was flashing. However, he did not state explicitly that he would have found in favour of the Respondent on the question of liability even if he had found that the indicator on her vehicle had not been flashing.

102 If the primary Judge did intend to make a “contingent finding of negligence”, I agree with Campbell JA that the primary Judge did not give adequate reasons for such a finding.

103 I should add that the primary Judge’s reconstruction of the events leading to the collision relied heavily on the expert evidence given by Mr Jamieson. In particular, his Honour accepted, on the basis of Mr Jamieson’s evidence, that the Respondent would have taken about three seconds from the commencement of her U-turn manoeuvre to the point of impact. This was important in his Honour’s analysis of how the Appellant should have responded to the danger created by the Respondent’s manoeuvre.

104 Mr Jamieson said in cross-examination that he had assumed, for the purpose of his calculations, that the Respondent’s vehicle had not been parked wholly in the breakdown (or bicycle) lane, but had straddled the grass verge. He agreed that if all four wheels of the Respondent’s car had been on the bitumen in the breakdown lane, his estimate of three seconds from commencement of the manoeuvre to point of impact would have to be reduced.

105 His Honour found that the evidence did not enable him to identify the precise location at which the Respondent’s vehicle was parked. This reflected the state of the evidence, which was consistent with the Respondent commencing the U-turn with all four wheels of her vehicle on the bitumen. If that was the case, Mr Jamieson’s estimate of three seconds required modification and his Honour’s reasoning, insofar as it was based on the estimate, was flawed.

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