Gromof v Pham - [2019] NSWDC 318

District Court

New South Wales

Medium Neutral Citation: Gromof v Pham [2019] NSWDC 318
Hearing dates: 18, 19 & 20 June 2019
Date of orders: 12 July 2019
Decision date: 12 July 2019
Jurisdiction: Civil
Before: Judge Levy SC
Decision:
1. Judgment for the plaintiff against the defendant on the issue of liability;

2. The defendant is to pay the plaintiff’s costs of the liability hearing on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;
4. Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords: TORTS – negligence – motor vehicle accident – determination of liability issues as a separate question
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), s 7A
Civil Liability Act 2002 (NSW), s 5B, s 5C, s 5R, s 5S
Uniform Civil Procedure Rules 2005, r 28.2
Cases Cited: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5
Manley v Alexander (2005) 223 ALR 228; [2005] HCA 79
Category: Principal judgment
Parties: Eric Gromof (Plaintiff)
Van Minh Pham (Defendant)
Representation:
Counsel:
Mr C Barry QC with Mr J Trainor (Plaintiff)
Mr J Guihot (Defendant)
Solicitors:
Ton Legal Compensation Lawyers (Plaintiff)
Moray & Agnew (Defendant)

File Number(s): 2016/375531
Publication restriction: None

Judgment

Table of Contents

Brief factual background

[1]

Claim and defences

[2]

Issues

[3] – [5]

Array of oral evidence

[6]

Array of documentary evidence

[7]

Factual agreements and disputes

[8] – [9]

Review of evidence

[10] – [109]

Police statements

[11] – [14]

Plaintiff’s evidence

[15] – [25]

Mr Luke Lovero’s evidence

[26] – [33]

Defendant’s evidence

[34] – [47]

Ms Thi Nguyen’s evidence

[48] – [54]

Mr Matthew Burke’s evidence

[55] – [69]

Ms Kathryn Buritt’s evidence

[70] – [91]

Mr Urquhart’s liability analysis

[92] – [109]

Issue 1 – Findings disputed matters of fact

[110]

Issue 2 – Negligence

[111] – [121]

Issue 3 – Contributory negligence

[122] – [133]

Issue 4 – Blameless accident

[134]

Disposition

[135]

Costs

[136]

Orders

[137]

Brief factual background

At about 8.15am on Wednesday 4 March 2015, the plaintiff, Mr Eric Gromof, who was then aged 16 years, was walking in a southerly direction on the concrete footpath on the eastern side of Railway Parade, Canley Vale, NSW. At a point where that footpath crossed the entrance to Westacott Lane at a T-intersection, he was struck by an eastbound motor vehicle that was making a left turn to enter Railway Parade from the plaintiff’s right. That vehicle was driven by the defendant, Mr Van Minh Pham.

Claim and defences

The plaintiff sustained significant bodily injury in that collision. He claims this was caused by the negligence of the defendant. The defendant denies he was negligent, and in the alternative, alleges the plaintiff was contributorily negligent. The proceedings are governed by the Motor Accidents Compensation Act 1999 (NSW) (“MAC Act”) and the Civil Liability Act 2002 (NSW) (“CL Act”).

Issues

Significant variations and disputes emerged between the described factual accounts of the six factual witnesses who gave oral evidence. It becomes necessary to reach a concluded view of what most probably occurred at the time of the accident.
In view of the conflicting factual accounts, and because of a complication in the plaintiff’s damages case, pursuant to UCPR r 28.2, on 14 June 2019, the plaintiff sought and obtained an interlocutory order from another Judge that the trial of the liability issues proceed separately to a trial of the damages issues.
Consequently, these reasons are only concerned with determining:

The most probable factual circumstances of the collision;

Whether or not the defendant was negligent in the events leading to the collision;

Whether there was contributory negligence on the part of the plaintiff in the circumstances; and

Whether the plaintiff’s injuries should be deemed to have occurred as a result of a blameless motor vehicle accident within the meaning of s 7A of the MAC Act.

Array of oral evidence

In the plaintiff’s case, factual evidence was given by the plaintiff and by Mr Lewis Luke Lovero, who was then a teenager walking on the footpath behind the plaintiff in the lead-up to the collision. In the defendant’s case, oral evidence was given on factual issues by the defendant, Ms Thi Ngui Nguyen who was a passenger in the defendant’s vehicle, and Mr Matthew Burke and Ms Kathryn Buritt who had seen something of the events from a nearby railway station platform across the road from the accident scene and who made various observations upon their arrival at the scene when they came to the plaintiff’s assistance.

Array of documentary evidence

The parties tendered copies of a number of photographs of the accident scene, and the defendant’s vehicle, as well as some factual statements obtained by an insurance investigator. The defendant relied upon the expert opinion of Mr Glen Urquhart, of William Keramides & Associates, whose qualifications included expertise in accident reconstruction. His report dated 7 June 2016, was admitted into evidence as Exhibit “4” subject to a number of objections which will be resolved at an appropriate point in the course of these reasons. The other documentary Exhibits will be referred to in these reasons where it becomes relevant to do so.

Factual agreements and disputes

During final submissions the plaintiff sought 14 key findings of fact. The defendant conceded 7 of those matters and disputed the remainder. It is convenient at this point to identify those 14 submissions, and the defendant’s responses, as follows:

All witnesses were trying to honestly recollect the circumstances of the plaintiff’s accident: T12.13; T23.42; T32.39. The defendant conceded the appropriateness of that submission and it should therefore be accepted: T126.50 – T127.2;

The plaintiff had no recollection of seeing the defendant's vehicle until just before it impacted with him: T12.13; T23.42; T32.39. The defendant conceded the appropriateness of that submission and it should therefore be accepted: T127.4 – T127.7;

The defendant brought his vehicle to a stop short of the intersection, with the bonnet extending partially over the extension of the concrete footpath from Railway Parade across Westacott Lane: T37.47; T44.27; T46.21; T56.10 – T56.14; T57.35; T58.7. The defendant conceded the appropriateness of that submission and it should therefore be accepted: T127.9 – T127.13;

The plaintiff was proceeding across Westacott Lane when the defendant commenced to move from a stopped position and turned at the same time, colliding with the plaintiff; T77.12. The defendant disputed that submission: T127.15 – T127.19;

The defendant did not see the plaintiff before the plaintiff impacted with his vehicle: T69.49; T99.4 – T99.7. The defendant conceded the appropriateness of that submission and it should therefore be accepted: T127.25 – T127.28;

The plaintiff thought it was safe to cross Westacott Lane following the extension of the concrete path across Westacott Lane because the defendant's vehicle was stationary at a distance back from the intersection of Westacott Lane and Railway Parade. The defendant disputed that submission: T127.30 – T127.35;

The point of impact between the plaintiff and the defendant's car was on the continuation of the concrete path extending from Railway Parade across Westacott Lane. The defendant disputed that submission: T127.41 – T127.45;

The initial impact between the plaintiff and the vehicle was in the vicinity of the front left side vision mirror of the defendant’s vehicle: Exhibit “H”; Exhibit “4”, p 15; T35.50 – T36.20; T78.7. The defendant conceded the appropriateness of that submission and it should therefore be accepted: T127.47 – T127.50;

Following the impact with the front left rear vision mirror, the plaintiff was knocked to the ground, and the vehicle in the course of turning then ran over his lower back: Exhibit “F”; Exhibit “G”; T38.2; Exhibit “3”, par 7 and par 8. The defendant disputed that submission: T128.2 – T128.6;

In the course of the defendant running over him the plaintiff was “log rolled”, that is, rolled along Westacott Lane while in contact with the car. When he and the car parted company he was on the concrete section of Westacott Lane, and shortly thereafter crawled a short distance finishing up on or near the kerb on the corner of Westacott Lane and Railway Parade: T12.20; T38.27; T58.27; T83.39. The defendant disputed that submission: T128.8 – T128.15. In argument, this submission was shown to be based on a misinterpretation of an entry in the hospital notes which referred to an aspect of the plaintiff’s treatment. The plaintiff conceded that was so: T137.22 – T137.50;

The defendant continued to drive at an angle across Westacott Lane and completed his turn into Railway Parade stopping parallel to the kerb on Railway Parade, a little further up from the telegraph pole and past the plaintiff: Exhibit “3”, par 11; Exhibit “E”, p 16; T88.34; T99.21. T99.27. The defendant conceded the appropriateness of that submission and it should therefore be accepted: T128.17 – T128.21;

The plaintiff suffered a loss of consciousness immediately after the initial impact and periods of disturbed consciousness thereafter, until the ambulance arrived: T12.14; T102.32 – T102.42. The defendant conceded the appropriateness of that submission and it should therefore be accepted: T128.23 – T128.27;

The plaintiff’s lack of recollection of seeing the defendant's vehicle is explicable by reason of his periods of amnesia immediately before and after the accident. The defendant disputed that submission: T128.29 – T128.33;

The manner by which the defendant moved across Westacott Lane from the stationary position that he had been in just before the accident, and the angle at which he moved, caused the collision between him and the plaintiff, because the plaintiff could not move out of the way of the turning vehicle given the angle and speed at which it commenced to turn from the stationary position. The defendant disputed that submission: T128.41 – T128.49.

Therefore, the disputed matters of fact that remain to be determined essentially concern the manner and circumstances in which the defendant drove or controlled his vehicle in the immediate prelude to the collision, as identified in sub-paragraphs (4), (6), (7), (9), (10), (13), and (14) of paragraph [8] above.

Review of evidence

Before determining those and other related matters of disputed fact within the oral evidence, including the consideration of the reliability of relevant aspects of that evidence, it is appropriate to set out something of the content of the oral evidence, as summarised in the paragraphs that now follow.

Police statements

The accident was the subject of a police investigation in which contemporaneous factual statements were obtained from both the plaintiff and the defendant. On account of their contemporaneity, I consider that significant evidentiary value should be given to those statements.
The defendant’s account as recorded by the investigating police officer was as follows:

“I was driving my car out from Westacott Lane and abut (sic) to make a left turn into Railway Parade. As I got to the end of Westacott Lane I started to make a left turn, I heard a big bang coming from the passenger side. I then stopped and got out of the car. At this time I saw a young boy laying on the ground. There was a bit of blood on him. A short time later a person standing by helped me move the young boy into the footpath. There was a lot of traffic and I was blocking the road. So I moved my car back into Westacott Lane.
I then watched other people rending (sic for rendering) first aid to the young boy.
…
Q5. Was there anyone else inside the vehicle with you?
A5. Yes my friend.
Q6. How fast were you travelling?
A6. About 10-15km not fast.
Q7. Did you put your indicator on?
A7. Yes.
Q8. Did you have a clear view of the intersection?
A8. Yes, there were no obstructions.
Q9. Did you consume any alcohol before driving?
A9. No.
Q10. Are you taking any type of medication that may affect your ability to drive?
A10. No.
…”
[Exhibit “E”, Tab 5, pp 15 – 18]

The plaintiff’s account as recorded by the investigating police officer was as follows:

“ …
2. I am 16 years of age.
3. About 8:15am on Wednesday 4 March 2015, I left home at 4 Stuart St. Canley Vale and starting walking along. Railway Parade heading towards the train station. I was aiming to catch the 8:28am train to Fairfield in order to go to School. I was not in a rush as I had plenty of time.
4. When I got to the intersection of Railway Parade and Westacott Lane I stopped and looked left and right for any incoming vehicles. I didn’t see any cars so I took 2 to 3 steps forward. At this time I saw the bonnet of a car coming towards me. I then blacked out and fell on the ground.
5. I was unconscious for about 30 seconds. When I woke up I tried to get up but I couldn’t I was on my hands and knees. I saw there was a lot of blood coming from my mouth and nose. A short time later I looked up and saw male, I am not sure whether he was an adult or a student, I asked this male to call an ambulance. Soon after another male came to help me. The name of this person was Aaron. Aaron tried to keep me awake by talking to me. ~~and~~ Aaron then asked me to lay on my side.
6. Soon after the ambulance arrived and started treating me. During this time I remember unlocking my phone, going through my contacts and calling my dad.
7. After that I remember being pulled into an ambulance. At this time I heard the voice of my father calling out my name.
8. About 12:00pm on Thursday 5 March 2015 I woke up at Liverpool Hospital. At this time I experienced a lot of pain around my face and neck area. I do not remember much of the first day at the hospital.
9. I stayed in Liverpool Hospital until Tuesday 17 March. On this day I was discharged and taken home by my father mother and sister.
10. I have been home for over a week. During this time I had been having pain to my face and neck. I am not able to eat any solid foods.
11. I have suffered multiple facial fractures including a broken jaw and fractured nose. I also suffered scratches to my hip and left knee.
13.(sic) I would also like to clarify that I landed face first on the ground when I fell.”
[Exhibit “1”]

The police investigation of the collision produced 13 photographs, copies of which were tendered in evidence in the proceedings as Exhibit “H”.

Plaintiff’s evidence

I considered the plaintiff to be a careful and truthful witness who gave his account of events to the limit of what he had observed. He gave his evidence in a matter-of-fact manner, without embellishment, and without inconsistencies. I considered that his evidence should be accepted.
The plaintiff is presently in his 21st year. He is an apprentice plasterer. Before the accident he was walking in a southerly direction on a concrete paved footpath on the eastern side of Railway Parade, Canley Vale, in order to reach nearby Canley Vale railway station, so he could take the 8.28am train to travel to his school.
The plaintiff stated that as he walked along that footpath he reached the T-intersection of Railway Parade and Westacott Lane where he stopped for what he described as being about 4 seconds (T22.33), looked left and right to see if there were any vehicles either turning into or out of Westacott Lane, and not seeing any such vehicles coming towards him, took a couple of steps forward: T12.7 – T12.14; T24.19; T29.28 – T29.29.
The plaintiff’s next recollection was of him being on his hands and knees on a portion of the pebbled concrete driveway that joined Westacott Lane with Railway Parade, with blood coming from his mouth: T12.7 – T12.19. When he was struck he landed face first onto the ground: T36.39. He recalled finding himself on the sloping portion of the concrete driveway or ramp of Westacott Lane, and not in the gutter or on the road of either Railway Parade or Westacott Lane: T12.16 – T13.36. The location of the accident was about 50m away from Canley Vale railway station: T16.14.
The plaintiff said he recalled a number of matters that had occurred after the accident. He recalled bleeding profusely from his mouth, being laid on his side, and trying to cover himself because his clothing was torn. He also said he recalled screaming to a nearby person to call an ambulance and to call his father: T13.17. He recalled that he had been separated from his wallet and his mobile telephone which had been in the pocket of his destroyed trousers. He ultimately obtained access to his mobile telephone and called his father himself after the ambulance arrived: Exhibit “1”, par 6.
The plaintiff said that he had remained on the footpath until the ambulance arrived: T32.4 – T32.9. The plaintiff said that he thought a man had assisted him to move to the “second or third slab” portion on the concrete footpath: T32.10 – T32.24.
It appears that Mr Lovero, who was at the time a school boy who had been walking on the footpath some metres behind the plaintiff, called for the attendance of an ambulance: T34.35; T34.44. Mr Lovero was wearing a school uniform at the time: T27.37. The plaintiff did not know of the presence of Mr Lovero being behind him in the lead-up to the accident: T34.30. The plaintiff recalled that whilst he was being placed in an ambulance he was aware that this father was present and was screaming: T18.50. The plaintiff said that at the scene, Mr Lovero had not helped him to get up but had simply used his own mobile phone to call for an ambulance: T27.11 – T27.18.
After the accident, the plaintiff remained in hospital for two weeks (T19.10) for the treatment of his head, facial, neck and back injuries. Those injuries included what the plaintiff believed to be a bruise to his back: T20.10.
The defendant obtained the following concessions from the plaintiff in cross-examination:

He was listening to music through earbuds connected to his iPhone whilst he was walking: T20.29 – T20.36;

He had stopped walking at a point on the footpath about a step before he came to the intersection of Railway Parade and Westacott Lane, and remained there in that position for about 3 to 4 seconds to see if there were any vehicles turning into Westacott Lane. At that time he also had a clear view of some 20 to 30 metres to his right down Westacott Lane and he did not remember seeing any vehicles travelling towards him at that time: T23.37 – T23.42;

He would have seen a vehicle from his right with his peripheral vision, assuming that it was there when he was in that position: T28.17;

Before he stepped forward on the footpath ahead of him, he was aware of the possibility of vehicles making a right turn in front of him from Railway Parade into Westacott Lane, as he had previously seen this occur: T29.25;

The estimate of 3 to 4 seconds during which the plaintiff remained stationary was later qualified to a lesser estimate of 1 to 2 seconds of elapsed time whilst the plaintiff was looking to his right before he proceeded to take two to three steps forward: T24.6 – T24.23;

He could not recall at any stage having seen a vehicle stop in the vicinity of the driveway of Westacott Lane preparing to make a turn out of that driveway: T32.36 – T32.39;

At the time of the events he appreciated that he had to take care as a pedestrian to avoid being injured by coming into contact with traffic (T32.45 – T33.23), and if there had been a vehicle stopped before the commencement of the driveway he would not have moved forward to put himself at risk of coming into contact with a moving vehicle: T33.20 – T33.35;

He did not recall seeing any indicator on the vehicle that he came into contact with (T33.39), and he believed that had he seen such a vehicle stopped and waiting to turn from Westacott Lane, he would have waited for it to go past (him): T34.5.

In cross-examination, the defendant made the following challenges to the plaintiff’s evidence, all of which were denied by the plaintiff;

Just before the accident, he was intending to cross Railway Parade to the railway station side of the road: T26.6 – T26.12;

He had stepped out onto the roadway from the kerb and then came into contact with the defendant’s vehicle: T26.28 – T26.31; T35.35 – T35.43;

He was listening to loud “hardcore” music on his iPhone whilst wearing earbuds or headphones: T31.7 – T31.34;

He fell to the road after coming into contact with the defendant’s vehicle: T31.44;

He had been assisted off the road at which time he was placed on the kerb and then onto the footpath: T31.45 – T32.6;

He had not seen the defendant’s vehicle at any stage before it came into contact with him because he was distracted by the loud music he had been playing: T32.25 – T32.34;

He had stepped onto the roadway of Railway Parade from the northern side of a telegraph pole (as shown in Exhibit “B”): T32.31 – T32.34.

The plaintiff said he had assumed he was struck by the front left headlight of the defendant’s vehicle, as he was aware that after the collision, he had a tyre mark on his back and had seen the Honda badge on the front of the vehicle: T35.49 – T36.20;

Mr Luke Lovero’s evidence

At the time Mr Lovero, then a high school student aged 15 years, had been walking about 5m – 6m behind the plaintiff on Railway Parade when he saw the plaintiff being struck by the defendant’s vehicle: T37.36. He said that at the time, he had been about 8m away from the point of impact: T42.5. I considered him to be an impressive witness.
Mr Lovero described having seen the plaintiff stopped for about two or three seconds before moving forward: T49.10. He said that the plaintiff “could not have missed it”: T46.4 – T46.14. I take that comment by Mr Lovero to be an opinion in relation to the observability of the defendant’s vehicle. He did not recall whether or not the plaintiff was wearing earphones at the time: T50.20. He said he was the first person to reach the plaintiff: T50.30. He had observed the plaintiff make contact with the rear passenger side door of the defendant’s vehicle: T49.37. The detail of his description of the events of the accident was as follows:

“Q. I want you to go back from that, how far behind Eric were you?
A. I believe I was about five, six metres behind him.
Q. And were you walking at the same pace, or faster or slower, as you came down Railway Parade?
A. The same pace, yeah.
Q. Then when Eric got to Westacott Lane I want you to describe in as much detail as you can recall what you saw him do, at that point in time?
A. Okay, there was a car coming out of Westacott Lane, the car stopped on the side walk, like, just before the sidewalk. Eric stopped and then he, I guess, walked in front of the car and then the car hit him to the ground and went over him.
Q. When you say, "Went over him," what do you mean?
A. I mean the car drove over him.”
[T37.38 – T38.2]

Mr Lovero saw the plaintiff on the ground of Westacott Lane in a position “just before the road”, which I interpret to mean on the concrete driveway portion of Westacott Lane: T38.26. His observation of the defendant’s vehicle seemed to have ceased at that point. I infer that this was because his attention was at that time directed to the plaintiff’s predicament, and possibly because at that time, he was calling an ambulance as requested. The description of the movement of the defendant’s vehicle from that point onward comes from other evidence.
Mr Lovero disagreed with the proposition that the defendant’s vehicle had come to a stop on the sloping portion of the driveway that joined Westacott Lane with Railway Parade: T44.43 – T44.50. He stated at the time the plaintiff was struck by the vehicle he was on the footpath at a point before the sloping driveway: T45.16 – T45.29.
Mr Lovero made a call on his own mobile telephone for the ambulance to attend and in the course of doing so he then handed his telephone to someone who had been attending to the plaintiff on the ground. That person conversed with ambulance personnel. After retrieving his telephone he then left to go to his school as was suggested to him by the person who told him : “They’ll take it from here”: T38.28 – T38.34.
Mr Lovero described having seen the defendant’s vehicle turn left into Railway Parade, and then stop following the collision, at which time he saw the defendant’s passenger open the passenger side door, look behind towards the plaintiff, and he then saw the defendant’s vehicle continue to drive on: T38.15 – T38.19.
Before the accident Mr Lovero did not know the plaintiff personally, but knew of his existence: T39.20 – T39.31. His evidence was given without reference to a statement he had made earlier to an insurance investigator. That statement was not called for or otherwise introduced into evidence. Mr Lovero had later told his sister about the accident. It transpired that his sister knew someone in the plaintiff’s family. It seems this was how Mr Lovero’s evidence came to be available to the plaintiff’s legal representatives. No credit challenges were made of Mr Lovero’s evidence in that regard.
Although, Mr Lovero fairly conceded it was possible that his memory of the events could have been unclear or mistaken some four years after the event (T51.5 – T51.24), I consider that he gave an accurate and truthful account of the events he described. He was in a good position to see the events that he described. I considered his evidence to be credible and that it should be accepted.

Defendant’s evidence

The defendant, a welder, is now resident in Victoria. He gave his evidence with the aid of a Vietnamese interpreter because, although he had some English, he was not proficient in that language: T64.28. At the time of the accident, he resided in Sydney and was familiar with the area where the accident occurred. His account of the events was as follows.
The defendant said that he had driven to the end of Westacott Lane and had stopped there to look around: T55.50. He marked the approximate position of the front of the bonnet of his vehicle on Exhibit “E”, Tab 3, p 10: T57.15 – T57.36. He said he had his (left turn) indicator on (T57.50), and as “There was no car, then I started to drive forward”: T58.2. He made no mention of having seen the plaintiff in the vicinity at that time. He went on to say that as he started to drive forward and make the turn, which I infer to have been to the left. Before the rear wheels of his vehicle went onto the road, he “heard a big bang” which he perceived to have come from the region of the rear left door of his vehicle: T58.1 – T58.17.
The defendant said he brought the vehicle to a stop after it had completely left the concrete: T58.22. He said he then got out of the vehicle and saw the plaintiff “kind of crawling, crawling onto the street” of Railway Parade: T58.27 – T58.30.
The defendant said he then saw the plaintiff sitting on the kerb by the side of the road “swearing and saying rude words”: T58.34 – T58.46. The assertion that the plaintiff was using such language was not a matter that had been put to the plaintiff for his comment.
The defendant further clarified the above evidence by saying the plaintiff was sitting with his legs stretched out on the road, with blood running down his face onto his mouth: T58.46 – T59.5.
The defendant stated that at the time he heard the noise of the collision he was travelling “around ten to 15 k per hour, it was like the wheel rather rolling than running”: T59.12.
I did not accept the defendant’s proffered account as being accurate or reliable. A speed of 10 to 15 kph was unlikely where so few seconds had elapsed in the described intersection. The proffered estimate of speed, which was much faster than walking pace, was inconsistent with the vehicle just rolling as stated by the defendant.
The defendant said that after he had gone to assist the plaintiff he went back to his vehicle, did a U-turn, and drove it back into the carpark within Westacott Lane because of busy traffic conditions: T59.15 – T59.28. The defendant claimed that the collision had left a bit of a mark on his vehicle on the rear left, near the petrol cap: T59.37.
The defendant made the following concessions in cross-examination:

Before the accident, his vehicle had no scratch marks on the left side of his vehicle in the vicinity of where the noise of the accident had come from: T64.49 – T65.10;

The noise of the accident sounded as if someone had punched the passenger side of the vehicle: T65.13;

When asked whether, before the subject accident, the left passenger side mirror had been damaged, he answered somewhat vaguely “Maybe not. I did not pay attention, and it was a long time ago”: T66.30 – T66.33. He also stated that after the accident he did not observe any damage to the left side mirror, and said “I do not know this”: T66.37;

The defendant conceded that before the collision, at the time he had stopped his vehicle, he knew that there was a pathway in front of him, that people used it to walk there, and that he had to stop there to give way to pedestrians and vehicles: T69.16 – T69.40;

The defendant thought that the fact of the bump, him getting out of his vehicle and first seeing the plaintiff, occurred “I think maybe within a minute”: T70.43.

In cross-examination, the plaintiff made the following challenges to the defendant’s evidence, all of which were denied by the defendant:

When asked to comment on the left side mirror appearing to be bent or in the closed position, the defendant claimed it only appeared to be so in the photograph because of the angle at which the photograph had been taken: T66.45;

When pressed on the appearance of the left side mirror as shown in Exhibit “H”, the defendant maintained he could not see that it had been pushed backwards into that described position (T67.31), and maintained that the suggested closed appearance of the side mirror was due to the angle at which the photograph had been taken: T68.1 – T68.18.

The defendant maintained that when he had stopped his vehicle, he looked to his right to see if there were vehicles approaching from that direction, and he then looked left to see if there were any pedestrians: T69.42 – T69.46. He maintained that when he looked for pedestrians he “saw no one standing there”: T69.49.
The defendant maintained he did not see the plaintiff or Mr Lovero as pedestrians who were approaching from his left when he stopped and looked left at the T-intersection: T70.7. The effect of that statement was then modified to a less adamant and less certain formulation, namely “… I think there was no one”: T70.11.
At the scene, the defendant claimed that it was an adult, and not a school boy, who came to the assistance of the plaintiff: T70.23 – T70.36. Although eventually both the defendant and his passenger, had alighted from the vehicle, he could not remember whether his passenger had opened her door to look back towards the direction where the impact had occurred: T71.11.
I conclude that the defendant’s evidence of the events of the collision involved a reconstruction that was neither accurate nor reliable. It seemed improbable that he had been keeping a proper lookout because he had not seen the plaintiff or Mr Lovero who were both in plain view. I consider his explanation that the passenger side mirror of his vehicle, which appeared to be closed due to the angle from which the photograph was taken, to be unlikely and improbable. Those matters, together with the vagueness of his answers as cited above, led me to conclude that the defendant was a less reliable witness compared to the evidence of the plaintiff and Mr Lovero.

Ms Thi Nguyen’s evidence

Ms Nguyen came from interstate and she gave her evidence reluctantly: T81.15. She was a front seat passenger in the defendant’s vehicle. Although she had some command of English, she gave her evidence with the aid of a Vietnamese interpreter. I considered that little weight should be given to the evidence of Ms Nguyen.
Although she was sitting in the front passenger seat of the defendant’s vehicle, she was not concentrating on the defendant’s driving, possibly because she was attending to her mobile telephone or her make-up or something else she could not now recall: T77.49. She said that she had heard a “big impact at a time when the defendant’s vehicle had not yet made a complete left turn”: T76.44 – T77.12. She thought the noise of the impact had come from behind her front passenger seat: T77.20. I interpret that portion of her evidence to mean that this was in relation to the left side towards the rear of the vehicle. She said the events in question had occurred in a split second: T78.49.
Ms Nguyen described the defendant’s vehicle as then coming to a complete stop. She said that whilst she was sitting in the vehicle, she saw “a boy in a school uniform”: T77.29. She further clarified that evidence to state that she saw a boy, referring to the plaintiff, after she had alighted from the vehicle: T77.36.
Ms Nguyen further clarified her evidence to say that as the defendant’s vehicle was turning left, she had seen something on her left: T78.6. Her interpretation of the events was that, after the impact, something “fell apart on our car”: T79.2. She said she did not realise that a pedestrian was involved until the impact occurred: T79.10. She was unsure of which part of the defendant’s vehicle had impacted with the plaintiff but she did not think the impact was with the front of the vehicle: T79.20.
Ms Nguyen only heard the noise of an impact and did not see the order or the sequence in which the events occurred: T80.12. She said she had a feeling that the vehicle had struck a person: T80.37. She claimed that when she exited the defendant’s vehicle the plaintiff was abusing her and the defendant: T80.39.
Initially, Ms Nguyen stated that she could not remember exactly whether the impact had occurred whilst the defendant’s vehicle was moving: T80.44. Later, she stated that she had exited the vehicle when it was stopped: T81.1. In that regard, her evidence was as follows:

“WITNESS (INTERPRETER): I heard. I heard a bang on the side, on the left side of my passenger seat. Then I was having a feeling that our car had hit a person. And make a full stop and I exited the car. He and I went out of the car and we saw the boy. Which full blood in his mouth, and he started to hit abuse on us, that was the story. And that's it.
BARRY
Q. When you heard the bang, the car was moving?
A. INTERPRETER: I cannot remember exactly. What I can say is the car was in the straight direction, and I am sure that the car must be stop so that we could exit the car.
Q. But the car was, may I suggest, moving at the time that you hit the boy, and then the car stopped after it hit the boy?
A. INTERPRETER: I saw that when there was bang, and then the car was made to a full stop, and then he make a full stop, and we exited the car. I cannot tell you because it was a long, long time ago. I cannot remember exactly what was happening. Because at that time I was so scared that I could not remember any detail since the car started moving off.
HIS HONOUR
Q. In light of your last answers, I need to be certain of something. I'm now going to ask you a question. You said it all happened a long time ago and you can't remember exactly how things happened. I need to know whether the account you have given here today is based on your actual memory, or something you have pieced together in terms of what you think might have happened?
A. INTERPRETER: Actually I was the passenger sitting at the passenger seat, and actually I did not want to appear at this court today. I have two children to take care of, so I am not in a position to arrange to make up a story to advise the court. That was the actual thing that happened.”
[T80.35 – T81.17]

The content of Ms Nguyen’s evidence contributes little to the analysis of the events. I consider that the limited ambit of her evidence indicates that it does not provide a reliable insight for the purpose of making liability findings on factual matters in dispute.

Mr Matthew Burke’s evidence

At the time of the accident, Mr Burke, a technician, was standing at a point about 20m or 25m away from the scene, on a platform of Canley Vale Railway Station, engaged in conversation with his brother: T82. They were located on the opposite side of the road to where the collision took place. Doubts emerged as to the reliability of Mr Burke’s evidence.
Mr Burke stated that as he was facing towards Railway Parade, from the peripheral vision he had from the corner of his right eye, he saw “like something fall over … onto the street”: T82.48 – T83.12.
Mr Burke later clarified that sequence of events by saying that he thought he first heard a scream or a yell, and then he looked over and saw the plaintiff lying on the ground, which he went on to describe as being on the kerbside concrete: T83.15 – T83.48. He further confirmed a detail of that account by saying that in giving that description he was not referring to the bitumen portion of the roadway: T84.4.
Later in his evidence, Mr Burke then contradicted that version, and said: “Not the driveway; on the road”: T84.8. He then made two differing marks on the photograph comprising Exhibit “B” to indicate those two differing accounts. The first marking he made on that photograph was by using a feint yellow highlighter which circled the foreground area around the footpath, the kerbside telegraph pole and part of the bitumen roadway. That mark was then emphasised for clarity. The second marking made by him was a more confined middle ground area cross-hatched in red in the vicinity of the gutter and roadway of Railway Parade: T84.20 – T84.47. He estimated the location of the telegraph pole shown in that photograph to be about 2m from the corner of Westacott Lane: T88.47.
On 27 May 2015, some 11 weeks after the accident, Mr Bourke provided a factual statement to an insurance investigator: Exhibit “3”. Mr Burke’s statement included the following account:

“6. On the morning of Wednesday 4 March 2015 when this incident occurred, I was at Canley Vale Railway Station standing on a railway platform with my brother Aaron just next to Railway Parade on the west side of the railway station. It was just before 8.30am and I was waiting for a train to go to university. There were quite a lot of people at the train station as there usually is at this time of day. I am familiar with the area as (sic) use the train station regularly. I was standing on the platform talking to my brother and was facing away from the railway tracks looking towards Railway Parade while my brother was the (sic) facing the opposite way towards me. While I was standing there is (sic) suddenly noticed with my peripheral vision what I thought was a manikin or something falling on the other side of Railway Parade, but I soon realised it was a school student falling beside a car that had just turned out of a laneway next to where it happened.
7. Although there are some trees along the side of the road next to the train platform I could still see quite clearly across the road as it was only about 20 metres away, but as I said I only became conscious that something had happened via my peripheral vision while talking to my brother. I think I might have heard a sound of the boy being hit as well and he screamed out but I don't recall hearing any heavy braking or skidding though at the time. At first, from the angle I was on, I thought the car might have ran right over the boy as it looked like the boy had fallen onto the roadway face-first nearly under the passenger side of the car, being the other side from where I was standing. He was first positioned near the back passenger side of the car just off the curb on the roadway near a telegraph pole that was on the edge of the curb near where the laneway from a car park meets Railway Parade.

8.   It all happened very quickly and my recollection is not 100% clear but I'm pretty sure the boy had stepped onto the roadway near the pole, probably starting to cross over to the railway side of Railway Parade, just as the car was turning left out of the laneway onto Railway Parade. It seems like the boy collided near the back left hand side of the car, not the front and then just fell heavily forward on to the road. That was when I though (sic) the car might have drove over the top of him as he went out of view and the black car kept on driving slowly for a few metres past the boy. I was quite concerned as I thought the boy could have gone right under the car.
9.   As I said, I wasn't really watching what was happening across the road at first, but I do recall that the car had stopped briefly at the end of the lane before he moved out, obviously thinking it was all clear of traffic and he turned and collided with the boy somehow. I recall that it all happened quite close to a wooden telegraph pole next to the curb (sic).
10.   My brother and I both ran straight from the train platform towards the boy to help. Some other people also ran to help. I could see the boy on the road as we running over, he had sort of tried to stand up from where he fell onto the road and started to move back to the curb (sic) and footpath. When we got to him he yelled out something and was bleeding from his face and sort of collapsed to the ground. My brother knows first aid so we helped him off the curb (sic) up onto the footpath and tried to make him comfortable. Another lady that seemed to know first aid also was there and she and my brother tended to the boy. There were obviously other people around the scene as well. I had tried to ring an ambulance while my brother and the lady were helping the injured boy.
11.   The black car had driven up the road at first but then a short time later he done a U-turn and drove back into the laneway car park are (sic) he had come from and parked. I didn't talk to him at all and did not notice if there was any damage to the car. At first I though (sic) he might have been going to drive off so I took a photo of the back of his car but then he just parked and walked back towards the injured boy but I didn't have anything to do with him.
12.   The boy was wearing school clothes and a backpack and I believe he might have been listening to music through earphones. I didn't have much to do with the injured boy as my brother and the lady were helping him. I remember him mumbling a bit and obviously in pain and bleeding a bit. The police and ambulance came and the boy was taken away. I spoke with the police but I haven't yet provided a statement.”

In his subsequent oral evidence Mr Burke confirmed that when he was talking to his brother, whilst they were on the platform of the railway station, they were facing each other: T87.25. He could not recall any trees or shrubbery obstructing his view through the picket type fence shown in Exhibit “B”: T87.35 – T88.11.
Mr Burke was tested as to his recollection of the events in question. He conceded that he had not seen the plaintiff before the accident (T89.21), he had not seen him walking or where he was walking from before the accident (T89.23 – T89.28), but he later conceded that he had seen a boy walking (T89.31) whom he thought was the plaintiff (T89.35). He explained that he thought it was the same boy because he had not seen anyone else walking on that street at that time: T89.38. It follows from this description, that on his account, he had not seen Mr Lovero walking some metres behind the plaintiff before the collision. Mr Burke’s statement referred to the plaintiff wearing a school uniform: T92.10.
Mr Burke said he saw “the object”, being the plaintiff, “just falling flat, like, onto the road”: T89.46. He said he then walked from the platform, down a stairway onto Railway Parade, crossed at a pedestrian crossing and then walked some 30 – 40 metres from the crossing to where the plaintiff had fallen: T90.1 – T90.24. Obviously, it would have taken Mr Burke some time to traverse that distance before he arrived at the plaintiff’s location.
Mr Burke stated that when he arrived at that location, the plaintiff “was sitting on the kerb, or still on the cement part of the road”: T90.28 – T90.33. He was unable to say for sure which of those two differing positions was the correct one: T90.35 – T90.41.
Mr Burke was unable to say whether it was he or another person, a woman, who had arrived at the scene first and had rendered assistance and first aid to the plaintiff: T90.45 – T91.6. Mr Burke said that his brother, Aaron, was with him, and had proceeded to attend to the plaintiff’s need for first aid but by then Ms Buritt was attending to the plaintiff: T91.7 – T91.28.
At that time, Mr Burke said that whilst his brother was giving the plaintiff first aid, he had then proceeded to the carpark where the defendant’s vehicle had been driven. This was because the defendant had first driven away, and then turned around in a U-turn to ultimately re-enter Westacott Lane: T91.30 – T91.45.
Mr Burke said he could not recall whether, after the collision, the plaintiff had been moved or had moved himself onto the footpath: T92.15 – T92.18. Mr Burke gave conflicting evidence as to where the plaintiff was first located. Whilst at first he described seeing the plaintiff sitting on the kerb or cement part of the road (T90.33), he later said he was first sitting on the pavement: T92.37. He later stated that his best recollection was that “as we were running over” to the plaintiff, he got up “and moved back onto the pavement, I think …”: T92.44. In this context I construe the use of the plural “we” to be a reference to Mr Burke and his brother Aaron.
Mr Burke could not remember whether the plaintiff had been sitting whilst supported or unsupported at the kerb: T92.47. I consider that his evidence to the effect “I would say supported” (T92.47) was plainly an assumption that was not based on an actual recollection. He could not recall whether the plaintiff had been placed in the laying down position or whether he had assumed that position himself: T93.5 – T93.8.
Mr Burke acknowledged that from where he was standing on the railway platform before the collision, his view of the ensuing incident, in which the defendant’s vehicle moved and the plaintiff had been struck, was obscured by the presence of the defendant’s vehicle: T93.12 – T93.25. He further acknowledged that when he saw “something falling on the road”, the vehicle had already “moved away after having run the boy over”: T93.17.
Whilst it was commendable that Mr Burke went to the plaintiff’s aid as he described, I nevertheless conclude that Mr Burke’s evidence did not offer any useful detail of the sequence of events or the actions of the parties leading up to the collision. As such, in my view, his evidence did not provide a reliable guide to making findings on disputed matters of fact. The limited observations he described as having occurred after the impact, do not provide a reasonable or reliable basis for contradicting the evidence of the plaintiff, or Mr Lovero, as to where the collision occurred, either on the footpath as asserted in the plaintiff’s case, or on the roadway of Railway Parade, as asserted in the defendant’s case.

Ms Kathryn Buritt’s evidence

At the time of the accident, Ms Buritt, a marketing manager, said that like Mr Burke, she was standing on a platform at Canley Vale railway station waiting for a train to arrive when a loud bang, which turned out be the impact of the accident, had attracted her attention and caused her to look in the direction of that loud bang: T94.5 – T94.32; T98.25 – T98.42. From that description it is plain that she was unable to shed light on, or describe the sequence of events, and the actions of the respective parties in the lead-up to the collision.
Ms Buritt’s description indicates that her evidence could not provide a rational basis for rejecting the factual descriptions provided in the evidence of the plaintiff and Mr Lovero.
Ms Buritt said that when she looked to the direction of that noise she saw “quite a few people tapping on the bonnet” of what could only have been the defendant’s vehicle: T94.35. She later clarified that description to describe three or four people: T99.11. She saw this through the spaces between the vertical components of a fence near the railway platform: T95.2 – T95.6; Exhibit “B”.
Ms Buritt described her subsequent actions by which she too, commendably, went to the plaintiff’s aid. She said that she ran to, and then down the course of, a hairpin turn on an exit ramp that was located between the railway platform and Railway Parade, and then crossed Railway Parade, up to the place where the plaintiff was located, where she then saw him on the footpath with people surrounding him: TT95.1 – T95.16. She said that in the course of those events, she had continued to observe the plaintiff and never took her eyes off him (T97.42 – T98.2), and in doing so, had adopted an unusual turn or posture of her head as she was running towards the scene in the opposite direction: T102.5 – T102.17.
Ms Buritt stated that she first saw the position of the plaintiff to be on the road, but as she ran towards him, his body had been moved onto the footpath: T96.25. She said she had initially seen the plaintiff laying down on the road with his feet towards the driveway, almost completely parallel to the roadway of Railway Parade and facing downwards: T96.27 – T97.6.
Ms Buritt stated that at the time she arrived at the place where the plaintiff was located, no one had been rendering assistance to him, and she said that she was the first one to arrive and give him aid: T97.8 – T97.13. She said that in the course of these events she saw the plaintiff wearing plug-in type earplugs which she removed. She said that when she did so, she could hear “loud rock music” from those earbuds: T97.18 – T97.38.
Ms Buritt stated she then remained with the plaintiff until the ambulance arrived, and at no stage did she see him to be located on the driveway portion of Westacott Lane. The driveway is shown in the photographs at Tab 3 of Exhibit “E”: T98.10.
Ms Buritt stated that from where she was standing on the railway station platform, when she turned to seek out the source of the noise that had attracted her attention, the bonnet of the defendant’s vehicle was in line with a telegraph pole, and that the vehicle was still moving, with 3 – 4 people tapping on the bonnet and yelling at the driver to stop, which he did after he had completed his left turn onto Railway Parade, stopping with the driver’s door of the vehicle being located past the line of the telegraph pole, and with the plaintiff being located behind the vehicle.
Ms Buritt described the position of the people who were tapping on the defendant’s bonnet as being at the front, on the left passenger’s side of the vehicle: T99.36. At that time she did not have a precise understanding of how the plaintiff came to be injured: T99.40 – T99.47. She added that although people were tapping on the defendant’s bonnet, he still kept driving, in a manner which she described as being very slowly: T100.13 – T100.32.
As she made those observations she immediately proceeded to run down the ramp at the Railway Station and across the road to give assistance to the plaintiff: T101.18 – T102.20.
Ms Buritt had senior first aid qualifications. She stated that when she got to the plaintiff he was conscious but he did lose consciousness whilst she was with him: T102.24 – T102.41. She was adamant that no one had been attending to him prior to her arrival at his side: T102.46. She later contradicted that evidence by agreeing that whilst she was running towards the plaintiff a few people, possibly three people, had dragged the plaintiff from the road to the footpath: T103.2.
Ms Buritt declined counsel’s invitation to proffer numerical estimates of the speed of the defendant’s vehicle at the time the described tapping on the bonnet was taking place: T100.18. Her best estimate was that it was very slow: T100.32. She was not paying much attention to the vehicle at that time as by then, her attention was directed at the body she saw on the ground: T100.38.
Ms Buritt reiterated that the sound of the bonnet tapping, which was at the level of someone knocking on a door, was accompanied by loud yelling that repeatedly called for the defendant to stop his vehicle: T101.1 – T101.9. It was then that she saw a body on the ground and concluded that a collision had occurred: T101.22.
Ms Buritt did not discern that any of those persons were in school uniform: T103.29. She acknowledged that at the time there must have been “heaps” of people around: T103.41 – T103.49.
Ms Buritt said it was she who had placed the plaintiff on his side because blood was coming out of his face and she was concerned about his breathing: T104.4 – T104.11. She said that she did not know about the whereabouts of his mobile telephone when she got to him: T104.19.
Ms Buritt said she moved or rotated the plaintiff onto his left side because he appeared to be choking whilst he was still conscious: T105.6 – T105.22; T107.18 – T107.26. She stated that she demanded that someone call an ambulance: T106.35. She was unaware of who had called for the ambulance but she was aware that the plaintiff’s father had arrived at the scene: T106.36 – T106.41.
Ms Buritt agreed that by the time she had attended to the plaintiff his trousers had been ripped off him and he was basically there in his underwear: T107.8 – T107.13.
Ms Buritt stated that at that time she did not know where the plaintiff’s mobile telephone was located: T106.29. She confirmed that for music to be heard to emanate from the plaintiff’s earbuds or headphones they would have to have been connected to his mobile telephone: T106.13 – T106.26.
From the perspective of a liability analysis, I consider Ms Buritt’s account of the events to be unreliable. I formed the view that her account was honest but was mistakenly reconstructed in several material respects.
Accepting as I do that the plaintiff had been separated from the mobile telephone that had been in his pocket when his trousers had been torn from him, it is improbable that Ms Buritt could have heard loud music emanating from the plaintiff’s earbuds, as she stated in her evidence, as it was improbable that the earbuds would have remained connected to the plaintiff’s mobile telephone at that time.
Furthermore, accepting the evidence of the plaintiff and Mr Lovero, I do not accept Ms Buritt’s evidence that no one had rendered assistance to the plaintiff before she had arrived at the scene to give him first aid. I consider that her evidence to that effect was improbable given the descriptions of the plaintiff and Mr Lovero, and from her own description that there were “heaps” of people around at that time.
Whilst I accept Ms Buritt gave an honest account of her recollections, I consider her account was an inaccurate and limited reconstruction of the events and therefore it was unreliable as a basis for rejecting the evidence of the plaintiff and Mr Lovero.

Mr Urquhart’s liability analysis

The defendant tendered Mr Urquhart’s collision analysis report dated 7 June 2016: Exhibit “4”. This report was complex, comprising some 76 pages which included annexures, photographs and diagrams. The plaintiff raised many objections to that report. It was admitted into evidence on the understanding that the substance of those objections would be addressed in these reasons where it became relevant to do so when referring to relevant parts of that report.
In essence, those objections may be conveniently categorised as relating to conclusions based on conjecture unsupported by evidence and conclusions not supported by adequate reasons.
Mr Urquhart’s report incorporated a reproduced photographic image from police records showing an area of scuffing appearing below the passenger side mirror on the defendant’s vehicle, also showing that the mirror was partly bent in the closed or rotated position towards the rear of the vehicle, along with some scuffing or scratch marks appearing alongside the rear quarter panel: Exhibit “4”, pp 18 – 19. He considered the damage, which he described as minor, to be consistent with a glancing or side-swipe type impact with a pedestrian: Exhibit “4”, p 19.
Based on the limited information provided to him, Mr Urquhart considered the plaintiff’s movement in the events just before the collision was more likely to be a walk rather than a jogging or running motion: Exhibit “4”, p 23. In my view, that opinion was based on conjecture although most probably correct on Mr Lovero’s account.
Mr Urquhart assumed from the absence of any reported damage to the front of the defendant’s vehicle, or to its bumper bar, bonnet or windscreen, that the most likely first point of contact between the plaintiff and the defendant’s vehicle was at, around, or near, the passenger side mirror on the vehicle in the form of a side-swipe or a glancing blow to the passenger side whilst the vehicle was in the course of forward motion: Exhibit “4”, p 24.
In my view, an important aspect of Mr Urquhart’s accident reconstruction analysis as to the location of the point of impact between the plaintiff and the defendant’s vehicle, must be seen to be unreliable insofar as it was based on the assumptions within the evidence that had been provided to him, but where not all of that evidence had been provided to the Court. In that regard, the plaintiff complains that he referred to “Unidentified” witnesses 1, 2, and 3: Exhibit “4”, pp 24 – 25.
Mr Urquhart invoked a theory that the plaintiff had been attempting to cross Railway Parade at a point near where the collision occurred. He speculated that it was possible that the plaintiff may have commenced to cross Railway Parade at a point near a telegraph pole shown in the photographs replicated in his report, and in evidence in the proceedings, and concluded the defendant was likely to have been in the process of turning his vehicle when the collision occurred: Exhibit “4”, pp 26 – 27. That conclusion was an assumption which was not reflected in the evidence of either the plaintiff or Mr Lovero, both of whose accounts I have accepted.
The plaintiff objected to the content of Mr Urquhart’s report, arguing that its accident reconstruction and some associated collision diagrams (as referred to at Exhibit “4”, pp 28 – 41), were based on speculation which was not supported by the evidence. I accept the force of the plaintiff’s submissions in that regard.
That speculation contained numerous elements. For present purposes, it is sufficient simply to identify two such matters. First, Mr Urquhart assumed, without evidence, that the plaintiff was crossing Railway Parade at the time of the collision. Secondly, Mr Urquhart assumed as a matter of fact that the defendant’s “attention would be towards the south to check for any oncoming vehicles”, and he similarly made assumptions as to what would have comprised the defendant’s process in monitoring the scene in the events leading to the collision.
A further matter of difficulty with the assumptions made by Mr Urquhart was his statement : “It is self-evident that it is an easier task for a pedestrian to see a vehicle, than it is for a driver to see a pedestrian”: Exhibit “4”, p 36. In my view that statement is self-evidently problematic where, in this case, the true factual question for determination is which of the parties, if any, had or had not been keeping a proper lookout in the circumstances which led to the collision: Manley v Alexander (2005) 223 ALR 228; [2005] HCA 79, at [12].
Mr Urquhart’s report included a lengthy analysis of the defendant’s argued or possible perception and response time and collision avoidance opportunity. The basis for that analysis included an unproven assumption that, at the time of the collision, the plaintiff had been distracted because he had been listening to loud rock music on his headphones: Exhibit “4”, pp 37 – 41. The plaintiff objected to that analysis on grounds of relevance as the underlying factual premises for that analysis had not been proven in evidence in the proceedings. I uphold that objection.

In my view, Mr Urquhart’s conclusions contained a significant degree of unwarranted speculation and uncertainty that precludes the acceptance of his opinions as to collision analysis and reconstruction: Exhibit “4”, p 42.
For example, in his stated Conclusion 2, Mr Urquhart acknowledged it was unclear as to whether or not the defendant’s vehicle had come to a halt in Westacott Lane before turning into Railway Parade, yet he speculated that it was likely that the defendant was travelling between 10 and 15 kph at impact, which he considered “appropriate in the circumstances”.
Another example is in Mr Urquhart’s stated Conclusion 3, where he has incorrectly assumed that the plaintiff was attempting to cross Railway Parade. I accept the submission that Mr Urquhart’s related attempts to estimate the plaintiff’s walking time and distance at that time are therefore irrelevant.
In his stated Conclusion 4, Mr Urquhart proffered an unempirical analysis that the defendant’s ability to detect the plaintiff was adversely affected by location factors and visibility issues in the “moments before impact”. In my assessment that view was unfounded on the evidence. The plaintiff was 6’ 2” tall at the time. It was improbable that a driver keeping a proper lookout would have experienced difficulty seeing the plaintiff on the footpath at that time.
Consequently, in his stated Conclusion 5, Mr Urquhart’s view that in the circumstances, the collision was unlikely to be avoidable by any actions that were capable of having been taken by the defendant, should not be accepted.
Furthermore, Mr Urquhart’s stated Conclusion 6, which was based upon the unfounded proposition that the plaintiff had failed to use a pedestrian crossing to cross Railway Parade, and the speculative and unfounded proposition that he was listening to loud music which may have distracted his ability to hear vehicles in his vicinity or to keep a lookout for such vehicles, should not be accepted.
Consequently, in this case, I find that Mr Urquhart’s accident reconstruction analysis does not provide any useful guidance to the task of resolving the identified matters of disputed fact concerning the sequence of events in which the plaintiff came to be injured when struck by the defendant’s vehicle.

Issue 1 - Findings on disputed matters of fact

I now turn to the determination of disputed matters of fact. Having reviewed and considered the evidence referred to and summarised above, I set out my findings on those disputed matters as follows:

At the time of the accident the plaintiff was walking south on the concrete footpath on the eastern side of Railway Parade across the entrance to Westacott Lane on his way to the Canley Vale Railway Station with the intention of crossing Railway Parade at a pedestrian crossing about 50m further to the south;

At that time the plaintiff was wearing earbud type headphones that were connected to his mobile telephone and by that method, he was listening to music whilst he was walking. I do not accept the suggestion that at the time, the music to which the plaintiff was listening was playing at such a loud level or that it had distracted him in attending to the duty of care that he owed to himself as a pedestrian crossing a roadway. There is no reliable evidence to reasonably support such suggestions;

Before proceeding to cross Westacott Lane, the plaintiff had ceased walking for a few seconds. During that time whilst he had remained stopped, he had looked both to his left and to his right. As he did not see any moving vehicles at that time, he then proceeded to cross Westacott Lane. The plaintiff said he saw no cars coming before he stepped forward: T12.13. I took his expression in that regard to mean that he saw no cars in Westacott Lane moving towards him at that time. I accept the evidence of the plaintiff and Mr Lovero in that regard;

In those events Mr Lovero was walking behind the plaintiff and keeping pace with him. He observed that the plaintiff stopped and looked to his right. In that context there would appear to be no other reason for the plaintiff to have stopped at that point except for the purpose of keeping a proper lookout. In those events Mr Lovero saw no signs of the defendant trying to stop his vehicle before the impact with the plaintiff before the vehicle ran over the plaintiff. Mr Lovero observed the impact to include contact with the defendant’s rear passenger side door. I accept Mr Lovero’s evidence that it was he who had called for the ambulance to attend;

At the point where the plaintiff had stopped before crossing Westacott Lane, when looking to his right he would have seen a moving vehicle on his right had it been there. In that regard, he had a clear view to his right for some 20 to 30 metres;

I find that shortly before the accident, the defendant’s vehicle had been stopped in Westacott Lane, which was some little distance back from where the plaintiff was walking on the footpath. As the plaintiff approached the intersection and he commenced to cross the intended path of the defendant’s vehicle, the defendant commenced to drive his vehicle forward towards the plaintiff. I find that this most probably occurred after the plaintiff had looked to his right at which time the vehicle was still stationary. He then commenced to cross the mouth of Westacott Lane;

The plaintiff did not recall seeing any car come to a stop before he started crossing the intersection: T32.39. I take that evidence to mean he saw no vehicles come to a halt from a moving position. This does not mean the defendant’s vehicle had already stopped as claimed by the defendant;

I am satisfied that at no time did the plaintiff see the defendant’s vehicle moving or commence to move: T24.35;

I am satisfied that the impact between the plaintiff and the defendant’s vehicle occurred on the concrete footpath that crossed the mouth of Westacott Lane;

When the plaintiff took what was described as being one or two steps forward to cross Westacott Lane he was at all times located on the concrete footpath of Railway Parade. As he stepped forward he was struck by the front passenger side of the defendant’s vehicle which had commenced to move forward from its previously stationary position and into acceleration;

The plaintiff had assumed he had been struck by the vehicle in the vicinity of its front left headlight: T35.45 – T36.6. Although there was no evidence of any damage to that area of the vehicle that would serve to support that assumption, that is of little consequence to the analysis as it is difficult to determine the precise point of first contact with the vehicle and it is not necessary to make that determination;

Notwithstanding the defendant’s evidence to the contrary, it is tolerably clear that in the events of the accident, the plaintiff was at some stage struck by the defendant’s left side mirror whilst the defendant’s vehicle was in the process of turning left into Railway Parade. Given that turning movement of the defendant’s vehicle, it seems unlikely the plaintiff had simply fallen perpendicularly onto the ground without some degree of lateral displacement. Whether or not that was so, somehow, the plaintiff’s back was run over by a wheel on the left side of the defendant’s vehicle. In this case, it is not necessary to resolve precisely how that occurred in the events that followed the initial contact between the plaintiff and the defendant’s vehicle;

Furthermore, it is unnecessary to seek to resolve whether the turning movement of the defendant’s vehicle had prevented the plaintiff from moving away from the vehicle either before or during the events of the impact;

By the time the collision occurred, the defendant had started to make a left turn into Railway Parade and the collision occurred before the defendant’s vehicle had completed that turn: T77.5 – T77.12;

I do not accept the defendant’s evidence to the effect that in the events that followed the collision, his vehicle had stopped at a point behind the kerb and before the bitumen roadway of Railway Parade: T56.14;

At some stage, in the sequence of events that followed the initial contact between the plaintiff and the defendant’s vehicle, the plaintiff’s body came into contact with the left passenger side of the defendant’s vehicle, and in doing so, caused a movement or a distortion of the position of the left passenger side mirror into the closed position;

When the plaintiff fell to the ground he was run over by at least one wheel of the left side of the defendant’s vehicle, as was evidenced by the tyre mark on his upper back that was seen and specifically noted when he was examined at hospital: Exhibit “G”, p 2;

Somehow, in those events the plaintiff was thrown forward, landing face forward on the concrete portion of the driveway leading down to the bitumen roadway of Railway Parade;

On the evidence, it is not possible to definitively locate the precise position where the plaintiff had ended up at the conclusion of those events because the defendant’s vehicle was in the process of turning left, and there would obviously have been turning forces in operation which would have influenced the way in which the plaintiff’s body was affected by such forces. That view is supported by the fact that after the plaintiff was thrown forward a wheel of the defendant’s vehicle ran over his back;

Neither the defendant nor his passenger, Ms Nguyen, had seen the plaintiff prior to the collision. However, the plaintiff was 6’ 2” tall at the time of the accident. It follows that he ought to have been readily noticeable as a relevant pedestrian by motorists keeping a proper lookout;

When the defendant’s vehicle struck the plaintiff it continued to turn left into Railway Parade before coming to a halt, by which time the defendant and his passenger had already heard the impact between the plaintiff and the vehicle. In those events the defendant had not seen the plaintiff on the footpath before the impact;

As the defendant’s vehicle approached the plaintiff his vehicle had, on his estimate, reached a speed of approximately 10 to 15 kph, an approximation which was not proffered as being based on an observed or measured speed. I infer that it was an estimate within a broad range. A speed of 10 to 15 kph is the equivalent of 2.77 to 4.16 metres per second. To achieve a speed of that order the defendant must have accelerated from the stationary position. He did so without having seen the plaintiff walking across the road;

After the collision the defendant immediately got out of his vehicle, and on seeing the plaintiff, and with the assistance of Mr Lovero, who was the nearest other person at the scene, proceeded to move the plaintiff from where he was laying on the concrete, and into the footpath area: Exhibit “E”, Tab 5, pp 15 – 18. That evidence is not inconsistent with the plaintiff’s claim of having been struck whilst he was on the footpath. I take the expression “into the footpath area” to include the circumstance that the plaintiff was already on the footpath, but that he was moved further along the footpath, possibly in order to move him away from the area of that footpath that would be trafficked by motor vehicles;

Mr Burke and Ms Buritt arrived at the scene of the accident some time later, after the plaintiff had already been moved as a result of the actions taken by the defendant and Mr Lovero as earlier described. When Mr Burke and Ms Buritt arrived they rendered further assistance. I do not accept that either Mr Burke or Ms Buritt were the first persons to attend to the plaintiff after he was injured;

In the forces operating in the collision and in its aftermath, I accept and find that the plaintiff had his trousers ripped from his body and in those events he became separated from his mobile telephone which had been located in his trousers pocket and connected to his earbuds. It was only late, as stated in his statement to the police, that he located his telephone and rang his father. Therefore, I find myself unable to accept Ms Buritt’s evidence of having removed the plaintiff’s earbuds at which time she claimed to have heard loud music emanating from them;

It is not necessary to seek to explain the plaintiff’s lack of recollection of some of the events surrounding the accident as being due to the phenomenon of amnesia following his head injury, as was submitted on his behalf. As the liability issues in this case are being determined separately from the damages issues, I have only seen very limited medical evidence: Exhibit “G”. Notwithstanding such circumstances, I accept that part of the evidence of Ms Buritt as to her observation that at some stage when she was attending to the plaintiff, she had observed that he was unconscious: T102.35. In my view, her first aid qualifications adequately enabled her to reliably make that observation. The plaintiff’s brief period of loss of consciousness is a sufficient explanation for his incomplete recollection of the events. Absent expert medical evidence on the issue, it is not necessary or appropriate to seek to analyse whether the plaintiff’s lack of recollection is due to the effect of a particular type of amnesia.

Issue 2 - Negligence

The plaintiff pleaded the following allegations of negligence against the defendant:

“5.1   Failing to keep any or any proper lookout.
5.2    Driving at a speed that was excessive in the circumstances.
5.3    Failing to brake, steer or otherwise control the vehicle so as to avoid the collision.
5.4   Failing to give way to the plaintiff, a pedestrian.
5.5   Failing to exercise due and proper care.”

The question of whether or not the defendant was negligent in the events of the collision must be determined according to the requirements of s 5B and s 5C of the CL Act.
Section 5B of the CL Act provides:

5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.

Section 5C of the CL Act provides:

5C Other principles
In proceedings relating to liability for negligence:
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

The undisputed fact is that when the defendant’s vehicle struck the plaintiff the defendant had not seen him beforehand. That was remarkable because, in my view, a driver in the position of the defendant would be expected to see someone in the plaintiff’s position in the near vicinity of his vehicle, especially given the plaintiff’s height at that time, namely 6’ 2”.
As such the risk of harm comprising the possibility of a collision with the plaintiff in the described factual circumstances was foreseeable: s 5B(1)(a) of the CL Act. The risk of injury to a pedestrian in a collision at an intersection was “not insignificant”: s 5B(1)(b) of the CL Act. That risk was such that a reasonable person in the position of the defendant would have taken precautions against that risk of harm: s 5B(1)(c) of the CL Act.
Such precautions in this case were relatively simple and easily implementable by a driver in the position of the defendant where the failure to observe such precautions significantly increased the risk of injury from a collision with a pedestrian in the position of the plaintiff: s 5B(2)(a) of the CL Act.
A vehicle and pedestrian collision in the factual circumstances of this case was very likely to cause serious bodily injury: s 5B(2)(b) of the CL Act.
The contended precautions, namely keeping a proper lookout, driving at a speed that enabled effective collision avoidance by appropriate braking or steering or both, and failing to remain stationary whilst the plaintiff completed his crossing, were all matters that a reasonable person in the position of the defendant would have taken without unduly burdening the task of driving and maintaining proper control over his vehicle: s 5B(2)(c) and s 5C(a) of the CL Act. No relevant question of social utility arises for consideration within the scope of s 5B(2)(d) of the CL Act.
It is plain that if the defendant had remained stationary whilst the plaintiff crossed the footpath across the entrance to Westacott Lane the accident and the plaintiff’s injuries would not have occurred: s 5D of the CL Act; Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5.
For the above reasons I find that the defendant drove negligently at the time his vehicle collided with the plaintiff.

Issue 3 – Contributory negligence

The defendant has pleaded the following allegations of contributory negligence against the plaintiff:

“(a)   Failing to take any or any reasonable care for his safety in the circumstances.
(b)   Failing to keep any or any proper lookout.
(c)   Attempting to cross the road when he knew or should have known that it was unsafe to do so.
(d)   Failing to allow the defendant’s vehicle to pass before attempting to cross the road.
(e)   Failing to ensure that his presence on the road was made known to the driver of the defendant’s vehicle.
(f)   Failing to take heed of the obvious risk of harm to which he exposed himself, having regard to the matters pleaded in the preceding paragraphs.
(g)   Failing to utilise a traffic signal controlled pedestrian crossing.
(h)   Listening to loud music and looking at his mobile phone whilst attempting to cross the road.”

The question of whether or not there was contributory negligence on the part of the plaintiff in the events of the collision must be determined according to the requirements of s 5R and s 5S of the CL Act.
Section 5R of the CL Act provides:

5R Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

Section 5S of the CL Act provides:

5S Contributory negligence can defeat claim
In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.

For the reasons that now follow, I have concluded that the defendant has failed to discharge the onus of establishing that in the events of the collision there was any contributory negligence on the part of the plaintiff.
I consider the defendant’s negligence was the sole cause of the plaintiff’s injuries. The plaintiff was not on notice of any intended movement of the defendant’s vehicle at the time he stepped forward onto that part of the footpath that crossed the mouth or entrance of Westacott Lane. At that time he was entitled to expect that the defendant’s vehicle, which had been stationary, would remain stationary and not move and accelerate forward towards him at a speed of up to 4 or so metres per second, which is the rough equivalent of the defendant’s estimated of his speed, namely 10 to 15 kph.

The defendant’s actions in driving forward at that time and in that manner, gave the plaintiff very little, if any, effective opportunity to avoid the risk of injury from a collision with the defendant’s vehicle.
In my view the defendant’s submission that the plaintiff allegedly failed to keep a proper lookout is inapt in this case where the defendant did not even see the plaintiff at all before the impact: Particulars (a) and (b) as cited above.
The assertion that the plaintiff either knew or ought to have known that the defendant would drive forward from a stationary position towards and across his path was unreasonable in circumstances where the plaintiff had started crossing whilst the defendant’s vehicle was still stationary: Particulars (c), (d) and (f) as cited above.
The mere presence of the plaintiff near the road and on the footpath was a sufficient circumstance to give the defendant an indication of his presence: Manley v Alexander (2005) 223 ALR 228; [2005] HCA 79. In those circumstances, the plaintiff was not required to do more to alert the fact of his presence to the defendant who was expected to be himself keeping a proper lookout: Particular (e) as cited above.
The defendant has failed to establish the pleaded particular of the available presence of a traffic controlled pedestrian crossing at the entrance to Westacott Lane: Particular (g) as cited above. The defendant has failed to prove that the plaintiff had been attempting to cross Railway Parade at the time of the impact or that he was distracted by loud music on his mobile telephone whilst attempting to cross the road: Particular (h) as cited above.
I therefore reject the pleaded and argued defence of contributory negligence.

Issue 4 – Blameless accident

In view of the above findings the issue of whether or not the plaintiff’s injuries were incurred as a result of a blameless accident does not arise for determination.

Disposition

The plaintiff has succeeded in establishing that the defendant was negligent as alleged. He is therefore entitled to a judgment in his favour on the issue of liability, without any discount for alleged contributory negligence.

Costs

Consequently, the plaintiff is entitled to an order that the defendant should pay his costs of the liability trial on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

I make the following orders:

Judgment for the plaintiff against the defendant on the issue of liability;

The defendant is to pay the plaintiff’s costs of the liability hearing on the ordinary basis unless otherwise ordered;

The exhibits may be returned;

Liberty to apply on 7 days notice if further or other orders are required.

**********

Decision last updated: 12 July 2019

Medium Neutral Citation:	Gromof v Pham [2019] NSWDC 318
Hearing dates:	18, 19 & 20 June 2019
Date of orders:	12 July 2019
Decision date:	12 July 2019
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	1. Judgment for the plaintiff against the defendant on the issue of liability; 2. The defendant is to pay the plaintiff’s costs of the liability hearing on the ordinary basis unless otherwise ordered; 3. The exhibits may be returned; 4. Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords:	TORTS – negligence – motor vehicle accident – determination of liability issues as a separate question
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), s 7A Civil Liability Act 2002 (NSW), s 5B, s 5C, s 5R, s 5S Uniform Civil Procedure Rules 2005, r 28.2
Cases Cited:	Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 Manley v Alexander (2005) 223 ALR 228; [2005] HCA 79
Category:	Principal judgment
Parties:	Eric Gromof (Plaintiff) Van Minh Pham (Defendant)
Representation:	Counsel: Mr C Barry QC with Mr J Trainor (Plaintiff) Mr J Guihot (Defendant) Solicitors: Ton Legal Compensation Lawyers (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2016/375531
Publication restriction:	None

Brief factual background	[1]
Claim and defences	[2]
Issues	[3] – [5]
Array of oral evidence	[6]
Array of documentary evidence	[7]
Factual agreements and disputes	[8] – [9]
Review of evidence	[10] – [109]
Police statements	[11] – [14]
Plaintiff’s evidence	[15] – [25]
Mr Luke Lovero’s evidence	[26] – [33]
Defendant’s evidence	[34] – [47]
Ms Thi Nguyen’s evidence	[48] – [54]
Mr Matthew Burke’s evidence	[55] – [69]
Ms Kathryn Buritt’s evidence	[70] – [91]
Mr Urquhart’s liability analysis	[92] – [109]
Issue 1 – Findings disputed matters of fact	[110]
Issue 2 – Negligence	[111] – [121]
Issue 3 – Contributory negligence	[122] – [133]
Issue 4 – Blameless accident	[134]
Disposition	[135]
Costs	[136]
Orders	[137]