Hendricks v El Dik (No 4)
[2016] ACTSC 160
•8 July 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hendricks v El Dik (No 4) |
Citation: | [2016] ACTSC 160 |
Hearing Dates: | 31 August, 1, 2, 3, 8, 9 September, 30 November 2015, 1, 2 December 2015 |
DecisionDate: | 8 July 2016 |
Before: | Mossop AsJ |
Decision: | See [197]-[198] |
Catchwords: | TORTS – Negligence – Motor vehicle accident – Collision between motor vehicle emerging from driveway and cyclist – Where bicycle was fitted with an electric motor – Whether defendant breached duty of care – Civil Law (Wrongs) Act 2002 (ACT), ss 42-44 – Whether plaintiff was contributorily negligent – Civil Law (Wrongs) Act 2002 (ACT), s 102 – Apportionment of liability between plaintiff and defendant |
Legislation Cited: | Australian Road Rules, rr 4, 12(1), 13(1), 15, 74, 242, 288 Civil Law (Wrongs) Act 2002 (ACT), ss 42, 43, 44, 102 Road Transport (Vehicle Registration) Regulation 2000 (ACT), ss 8, 20 |
Cases Cited: | Aitkenhead v Kaufline (No 3) (2014) 66 MVR 479 Baker v Mackenzie (2015) 72 MVR 421 Verryt v Schoupp (2015) 70 MVR 484 |
Parties: | Mohgamat Hendricks (Plaintiff) Walid El-Dik (First Defendant) Insurance Australia Limited t/as NRMA Insurance ACN 000 016 722 (Second Defendant) |
Representation: | Counsel A Black SC, A Muller and D Crowe (Plaintiff) J Poulos QC and B Wilson (Defendants) |
| Solicitors Slater & Gordon (Plaintiff) Sparke Helmore (Defendants) | |
File Number: | SC 460 of 2013 |
MOSSOP AsJ:
Introduction
The plaintiff was riding his electric bicycle home from work on 20 January 2012. He travelled along a bicycle path from his workplace in Belconnen to his home in Macgregor. A portion of that path travelled along the footpath of Milford Street in Latham. A number of driveways crossed that footpath including the driveway of the property owned by the first defendant. The first defendant was reversing his Jeep Wrangler out of his driveway when the plaintiff collided with the left hand side of the vehicle. As a result of the collision the plaintiff was rendered a quadriplegic. The plaintiff has claimed damages. Subject to determination of the issues of liability and contributory negligence, damages have been agreed at $12 million.
The issues that must be determined in this case are:
(a)Was the defendant negligent?
(b)If so, was the plaintiff guilty of contributory negligence?
(c)If so, to what extent should damages be reduced by reason of that contributory negligence?
The plaintiff and his bicycle
The plaintiff was born in South Africa and moved to Australia in 1998. Since his migration to Australia he has worked in the Commonwealth Public Service at what is now known as the Department of Immigration and Border Protection.
Shortly after arriving in Canberra he lived in Page for a couple of years and then moved to Scullin and Florey before settling in Macgregor in 2005.
Not long after arriving in Australia he purchased a second-hand bicycle at a garage sale. During the summer months he would ride to work. He initially did that once or twice a week, but later increased to three or four times per week. In winter he drove his car because it was too cold to ride. When he moved to Macgregor in 2005 he continued riding, but not as frequently because there were more hills on his way to and from work which put him off riding to work. In 2011 he was riding to work at least once a week. He rode in his work clothes and stored his bicycle at work during the day. Because of the exertion involved in riding to work he found it necessary to take a shower prior to commencing work. He did not find this convenient.
Towards the end of 2011 the plaintiff purchased a bicycle from a friend at the mosque where he prayed regularly. He paid $20 for the bicycle. The bicycle was a mountain bicycle that was in better condition than the one which he already owned. He purchased it with the intention of putting an electric motor on it. He looked for an electric motor in various places: “allclassifieds [a website] and certain bicycle shops as well”. The bicycle shops where he looked were in the city and Fyshwick and sold bicycles with electric motors.
In response to an advertisement on the “allclassifieds” website he attended a residence in a block of flats in Woden and purchased an electric bicycle kit. When he met the vendor the kit was fitted to a bicycle. The plaintiff rode this bicycle and was satisfied with how the motor performed. He purchased the kit for $180. For that price he obtained the wheel with the electric motor and other accessories. The kit included a shiny aluminium box containing some controls, batteries stored in a bag and wiring including the accelerator. Over the next few days the plaintiff attempted to assemble the kit on his recently purchased bicycle. He had been given some instructions on how to do so by the vendor of the kit. Instead of keeping the batteries in the bag in which they had come, he put them and the aluminium box in a plastic tackle box fixed to the rack on the back of the bicycle. He did not alter the circuitry that was contained within the aluminium box.
When attaching the kit to the bicycle the plaintiff broke the wires which attached the motor to the accelerator. On 1 November 2011 he took the bicycle to a business known as Switched on Cycles in order to get the accelerator fixed and so that someone could look over the bicycle. He left the bicycle overnight and obtained a new accelerator. He was charged $40 and advised to keep the batteries on charge as often as possible. The accelerator was a twist grip that was spring-loaded so that when turned towards the rider the motor would accelerate and when released it would return to the neutral position.
After collecting the bicycle from Switched on Cycles he rode it to work a few days per week up until Christmas 2011. He had holidays of around 10 days over the Christmas ‑ New Year period and returned to work early in the new year. Because it was school holidays he was able to ride to work three or four days per week. He followed the same route with his electric bicycle as he had followed with his unpowered bicycle. When he was going up hills on the electric bicycle he was able to go faster than he had on his unpowered bicycle. He would pedal as well as relying upon the electric motor. When he rode to work he still stored the bicycle at work but, because he was required to exert himself less, he did not need to have a shower after he arrived at work.
The regulation of electric bicycles
As at the date of the accident, s 18 of the Road Transport (Vehicle Registration) Act 1999 (ACT) (Republication 14) (Vehicle Registration Act) provided:
18 Prohibition on using unregistered registrable vehicles or vehicles with suspended registration
(1)A person must not use an unregistered registrable vehicle, or a vehicle with suspended registration, on a road or road related area.
Maximum penalty: 20 penalty units.
(2)Subsection (1) does not apply to the use of an unregistered registrable vehicle on a road or road related area if—
(a) the vehicle is of a kind prescribed by a regulation mentioned in section 17 (Regulations may exclude vehicles and people from Act) as a vehicle exempt from this Act; or
...
A registrable vehicle is defined in the Dictionary of the Vehicle Registration Act as:
registrable vehicle means—
(a) any motor vehicle; or
(b) any trailer; or
(c) any other vehicle prescribed under the regulations for this definition.
“Motor vehicle” is not defined in the Vehicle Registration Act. However, s 8 of the Road Transport (General) Act 1999 (ACT) (General Act) provides that terms defined in “the road transport legislation”, of which the Vehicle Registration Act forms part, apply to other parts of that legislation. As a consequence the definition of “motor vehicle” in the General Act applies to the Vehicle Registration Act. In the General Act (Republication 34), "motor vehicle" is defined as “a vehicle built to be propelled by a motor that forms part of the vehicle.” Vehicle is defined in a manner that includes “any description of vehicle on wheels, other than a vehicle used on railways or tramways”.
Because of these expansive definitions, the exemption in s 18(2) of the Vehicle Registration Act is of significance in avoiding the requirement to register bicycles under that Act. For the purposes of s 18(2) the relevant regulation was the Road Transport (Vehicle Registration) Regulation 2000 (ACT). Section 8 of the Regulation provided:
8 Application of Act, s 18 to pt 2.2 vehicles
For the Act, section 18(2)(b), the use of an unregistered vehicle mentioned in part 2.2 (Vehicles not subject to registration provisions) on a road or road related area is permitted under this regulation.
Within Pt 2.2, of the Regulation is s 20 which addresses bicycles with auxiliary motors:
20 Bicycles with auxiliary motors
The registration provisions do not apply to a registrable vehicle that is a bicycle.
NoteA bicycle does not include any vehicle with an auxiliary motor capable of generating a power output over 200W (see Road Transport (General) Act 1999, dictionary and the Australian Road Rules).
The note in s 20 makes clear that the exception in s 18(2) of the Vehicle Registration Act does not exempt a bicycle with an auxiliary motor capable of generating a power output over 200W. While a note is not a part of the regulation (see Legislation Act 2001 (ACT) s 127(1)), the note accurately reflects the effect of the road transport legislation. That is because the term bicycle is defined in the Dictionary of the General Act by reference to the definition of that term in the Australian Road Rules.
As at 20 January 2012, the Dictionary in the Australian Road Rules defined the word “bicycle” so as to exclude “any vehicle with an auxiliary motor capable of generating a power output over 200 watts”.
It is uncontroversial that the plaintiff’s bicycle was fitted with a motor capable of power output over 200W. Therefore the exception to s 18 of the Vehicle Registration Act provided to a “bicycle” by operation of s 20 of the Road Transport (Vehicle Registration) Regulation 2000 did not apply to the plaintiff’s bicycle. As a consequence he was subject to the prohibition in s 18 of Vehicle Registration Act. Because of the expansive definition of “road related area” in the General Act (discussed at [126] – [129] below), the plaintiff was prohibited from riding his bicycle on the path on Milford Street.
Further, under the terms of the Australian Road Rules themselves, the plaintiff’s bicycle was precluded from travelling on a shared path, bicycle path or footpath: r 288.
The plaintiff’s knowledge of the capacity and lawfulness of his electric bicycle
Prior to the accident the plaintiff was unaware of the capacity of the bicycle kit which he had purchased. He was unaware that in order to be lawfully ridden in the Australian Capital Territory the capacity of the electric motor had to be no greater than 200W. He had not attempted to see how fast the bicycle would go at maximum speed. He had seen other people riding bicycles with electrically driven wheels on cycle paths. He had observed that the motors on the postal bicycles appeared the same as his. After collecting his bicycle from Switched on Cycles he continued to believe that the bicycle could be legally used. He was unaware that the capacity of his bicycle was greater than that which could lawfully be used or was likely to be greater than other electric bicycles that he had seen in use.
In reaching these conclusions as to the plaintiff’s knowledge I have rejected the defendants’ submission that the plaintiff’s evidence in relation to his state of knowledge of the capacity and legality of the electric motor should not be accepted. In my view the plaintiff’s evidence, generally, and with respect to his state of knowledge of the qualities and legality of the electric motor in particular, was honestly given. His lack of knowledge of the legal regulation of electric bicycles was not inherently implausible, even if falling short of what a reasonable person would have known or discovered in the circumstances (see [166] below).
The defendants placed particular reliance upon the fact that the wheel that the plaintiff purchased was marked as a 500W motor wheel. The defendants are correct in pointing out that the numbers and letters “36V 500WSX11068805” do appear on the hub of the plaintiff’s electrically powered wheel. However, the close-up photograph of those numbers that is in evidence (Exhibit 1 at 409) indicates that the letters and numbers are small and quite faint. They do not appear to be obvious in the photos of the wheel which are not specifically directed to showing them (see e.g. Exhibit 1 at 128). It would be easy for a lay person not to notice them. I accept the plaintiff’s evidence that he did not see them. Having regard to the combination of letters and numbers it would be easy for a lay person not to recognise the significance of the “500W” within the aggregation.
Milford Street and its shared path
When the plaintiff was riding to work he followed the same route each time. Part of that included the path along Milford Street. The path along Milford Street is identified in an ACT government publication “The Canberra & Queanbeyan Cycling & Walking Map” as being a “shared path”. I will refer to it as such. Shared paths are paths which are designated for use by cyclists and pedestrians and not by other vehicles. The network of shared paths permitted the plaintiff to cycle from his home to his work in Belconnen almost exclusively on such paths with only very short distances on roads.
The concept of a “shared path” is one which is reflected in the Australian Road Rules. It is defined in r 242 and that definition is picked up in a variety of other rules.
The route which the plaintiff followed travelled through Florey and Latham. At the boundary between Florey and Latham runs Kingsford Smith Drive. The shared path passes underneath that road via an underpass. Travelling in the plaintiff’s homeward direction he would travel on the shared path around the side of a school down and through the underpass before climbing back up to street level where the shared path was, in effect, the footpath on Milford Street in Latham. Milford Street along with nearby Chambers Street form two “U–shaped” streets coming off O’Loghlen Street. The shared path passes along the footpath on the southern side of the base of these two U-shaped streets. Between those two streets the shared path passes along a strip of public land between the houses of the suburb. The layout of these streets is shown in the satellite image at Exhibit 1 p 6. The shared path discharges onto O’Loghlen Street near Latham Primary School and cyclists travelling in a north-westerly direction are required to ride for a short distance along a road, Onslow Street, before picking up the continuation of the shared path which travels to the valley of Ginninderra Creek and suburbs which include the plaintiff’s home suburb of Macgregor.
A cyclist travelling to the north-west along the shared path will, after passing through the underpass under Kingsford Smith Drive, travel up a slope to get back to street level. About halfway up that slope another concrete path crosses the shared path. This appears to be a pathway which travels generally parallel to Kingsford Smith Drive. At the point where this path branches off there is a signpost with an arrow indicating that the shared path continues toward that portion of Milford Street which forms the base of the “U”. This sign is shown at Exhibit 1 pp 10, 11, 12, 13 and 15. At the base of the U of Milford Street, houses at numbers 19, 21, 23, 25, 27 and 29 front onto Milford Street. The shared path runs along the front boundaries of these properties and hence is between them and the roadway of Milford Street. The driveways of these properties need to cross the shared path in order to access Milford Street.
The first house passed by the shared path is number 19. Near where the shared path passes the corner of block 19 closest to the underpass, a footpath branches off the shared path and travels north to discharge onto Milford Street. The angle of that path is such that it would serve persons heading north-easterly along the eastern arm of the “U” of Milford Street away from the scene of the accident. The shared path itself continues to the north-west along the front boundary of number 19.
Where the path comes close to the bend on Milford Street, which forms the base of the “U” on the south-eastern side, there is a double driveway which travels from numbers 19 and 21 Milford Street across the shared path and onto Milford Street. A similar situation exists at the other end of the base of the “U” namely that at the south-western side where numbers 27 and 29 share a double driveway which crosses the shared path and goes to Milford Street. Between these two pairs of houses are houses at numbers 23 and 25 Milford Street, each of which has a driveway which crosses the shared path so as to permit access to and from those properties to Milford Street.
The shared path appears to immediately abut the property boundaries of numbers 19, 21, 23, 25, 27 and 29 Milford Street. Thus, the nature strip is on the road side of the shared path. There are street trees planted along the nature strip in front of numbers 19, 21, 23 and 25 Milford Street.
None of the houses have front fences. The amount and type of vegetation at the property boundary immediately adjacent to the shared path varies from house to house.
As at the date of the accident, for a rider travelling in a north-westerly direction along the shared path, the vegetation on the properties at numbers 19, 21, 23 and 25 obscured a rider’s view of the houses and, more importantly, the driveways from which vehicles might exit those properties. Most relevantly, at the boundary between number 21 and number 23 was a miscellaneous collection of bushes providing a visual barrier between the two properties and consequentially obscuring the view of a cyclist travelling north-west of any vehicle exiting number 23 via its driveway.
The section of the shared path which passed along Milford Street was made of concrete slabs. Those slabs had, over time, suffered some cracking and uplift and where this had occurred the slabs had been ground down so as to make the surface more regular. This is illustrated at Exhibit 1 pp 58-60. The nature of this cracked, uplifted and the ground down surface was a minor factor producing an incremental deterioration in the quality of the riding surface. The reduction in the quality of the surface had little impact on a mountain bike, but would have been noticeable for a bicycle with narrower, higher pressure, tyres.
The first defendant’s property
The first defendant’s property was at 23 Milford Street. He had lived there since 2005. Although the block is angled to the north-east, for the purposes of description I will assume that it faces east onto Milford Street and hence the boundary with number 25 is the northern boundary and the boundary with number 21 is the southern boundary.
As noted, it had bushes along its boundary with number 21. The driveway constructed along the boundary with number 21 comprised two parallel strips of concrete and appears to be the driveway that was constructed at the time of subdivision of the block and construction of the dwelling. I will refer to this as the southern driveway.
In addition to the southern driveway there was also a semicircular path across which a vehicle could drive, leading from the southern side of the block to the northern side of the block in front of the house. At the northern side of the block was another driveway crossing the nature strip. I will refer to this as the northern driveway. While this crossing was edged with bricks it was not made of concrete, but rather of some form of gravel merging into the underlying dirt. It appears to have been something developed after the original construction of the house. The entrance to the house is at the northern side of the property where the northern driveway is located. At the time of the accident it was possible to park a vehicle on the paved area outside the front door of the house in line with the northern driveway. The construction of the additional northern driveway appears to have been facilitated by the fact that the kerbs on the street were layback kerbs rather than right angle curbs so that a reasonably functional driveway could be constructed without having to remove and remake a portion of the kerb.
Along the northern boundary of the property, while there was some vegetation between number 23 and number 25, it was not such as to obscure the vision of a driver to the north-west. The vegetation between the northern and southern driveways was such that it would not obscure the vision to the north-west of a driver using the southern driveway to exit the property or the vision of a driver to the south-east of a driver using the northern driveway to exit the property.
Consistently with it being the original and properly constructed driveway, the southern driveway continued past the building line to a carport. Access to the carport was protected by a gate.
A driver entering the property via the southern driveway would be able to proceed directly onto the semicircular path in front of the house so as to exit in a forward facing direction via the northern driveway. A driver who had parked on the southern driveway would be required to reverse a short distance before turning onto the semicircular path in order to get access to the northern driveway.
A driver who had entered in the forward direction by the northern driveway would be able to exit in reverse by that driveway. It would also be possible for a driver who had entered the northern driveway in a forward direction to exit in a forward direction. That would involve the driver turning on the semicircular path, reversing onto the paved area in front of the house and then exiting in a forward direction.
The first defendant currently parks his car at the northern side of the block on the paved area outside his front door facing towards Milford Street. This is shown at Exhibit 1 p 25. The evidence was not clear as to how he manoeuvres his vehicle to get into this position. While parking his car in this manner takes some extra time, it permits him to exit in a forward direction and, because of the absence of obscuring vegetation near the boundary of the block, avoids the problems created by the vegetation between number 21 and number 23. The layout of the house, driveway and vegetation at the time of the accident is illustrated at Exhibit 1 pp 77-78 and the situation shortly before the hearing is shown at Exhibit 1 pp 23-26.
As is apparent from the photographs that were in evidence, and from the view that was undertaken, there has been little change in the overall physical environment of Milford Street since the date of the accident.
The accident
On the day of the accident the plaintiff rode his bicycle to work by his usual route. At the end of his working day he left to travel home as usual.
There was some contention over the precise time at which he left work. The plaintiff’s evidence was that he normally finished work “at five or around 4.30”. Although he agreed with the erroneous suggestion put to him in cross-examination that he had said that he had left work at about 4.30pm, and that gave rise to some questions as to why he only arrived at Milford Street at 5.45pm, I do not consider that the time at which he left work was reliably fixed or is of significance for the determination of this case.
The trip homewards was uneventful until, after the plaintiff had travelled through the underpass under Kingsford Smith Drive and was attempting to climb up from the underpass, he lost electrical power to his bicycle. He moved his bicycle off the path near the sign that was next to the intersecting path about halfway up the rise from the underpass to Milford Street. He opened the tackle box and found that there was a loose wire which needed to be fixed. He was able to do this by tightening a screw. He described doing so with a spanner which he had in his backpack. While the mechanical exercise was not described in any detail, he was successful in fixing the loose wire in a few minutes and was then able to recommence his journey home. He got back on his bicycle and rode up the balance of the incline using electric power rather than peddling. When he got to the top of the incline that ran from the underpass to where the path met Milford Street he eased off on the accelerator so that he was travelling at the same speed that he would normally ride his unpowered bicycle or his electric bicycle. He continued to rely upon the electric motor and did not pedal.
The plaintiff travelled in a north-westerly direction along the footpath that ran along the base of the “U” formed by Milford Street. There were no other cyclists or pedestrians on the path at the time. As the plaintiff proceeded along the path, the first defendant’s vehicle reversed out into his path and he collided with the side of the vehicle. The plaintiff did not brake or swerve before colliding with the vehicle. He cried out immediately before the collision. His helmet struck the passenger side window. The accident resulted in some small dents in the passenger door of the first defendant’s vehicle.
The defendant had come home from work at about 5:00 pm to get something to eat before returning to work to do some overtime. When he reversed out of the driveway he had the windows of the car up, a Bob Dylan CD playing and the air-conditioning on. When reversing he was turned around to his left with his left arm holding on to the passenger seat, looking behind the vehicle and in the direction from which the plaintiff approached. When he saw the plaintiff be immediately applied the brakes.
The plaintiff was treated at the scene by ambulance officers. Police who attended at the time took photos of the scene. In those photographs the plaintiff is shown lying injured on the ground while being attended to by ambulance officers. He is wearing smart casual work clothes. The fingerless gloves he was wearing while riding can be seen as can the condition of his bicycle, the battery and other equipment associated with the electric motor. The police took photographs of the first defendant’s vehicle and measurements were also taken of skid marks on the concrete driveway. The police took photographs looking in a north-westerly direction towards the first defendant’s vehicle which show the shared path and the vegetation as at the date of the accident: Exhibit 1 photographs 58-66. The police also took photographs from inside the first defendant’s vehicle looking to the south-east showing the view that would have been available to the driver at the point where the collision occurred: Exhibit 1 photographs 69-72.
A suggestion was put to the plaintiff in cross-examination that he was rushing home because he knew that it was just about to rain and it was his daughter’s birthday. I have not accepted that submission. It was denied by the plaintiff. The factual basis for the suggestion that it was just about to rain was not made out. The first rain that evening recorded at Canberra Airport occurred between 8:00 pm and 8:20 pm and radar images showing rain over Canberra were not consistent with any rainfall in Latham before 7:00 pm. No witness gave evidence of any rain or the apparent imminence of rain before or in the immediate aftermath of the accident.
The expert evidence
The plaintiff served written reports from the following experts:
(a)Mr Alan Joy, a civil engineer and crash reconstruction expert;
(b)Mr Grant Johnston, a civil engineer and crash reconstruction expert;
(c)Dr Peter Hart, a consulting mechanical engineer.
The defendants served written reports from the following experts:
(a)Mr William Keramidas, a crash reconstruction expert;
(b)Dr Robert Casey, a consulting mechanical engineer.
The experts were all well qualified and appeared to me to be honestly attempting to assist the Court with the benefit of their expertise.
I will refer to Mr Johnston, Mr Joy and Mr Keramidas collectively as the traffic engineers. I will refer to Dr Casey and Dr Hart as the mechanical engineers.
These experts prepared a large number of reports. The date and author of the reports were (in chronological order) as follows:
(a)28 August 2012: Dr Casey;
(b)19 December 2014: Mr Johnston;
(c)16 February 2015: Mr Keramidas;
(d)May 2015: Mr Joy;
(e)22 May 2015: Dr Casey;
(f)30 June 2015: Mr Johnston;
(g)27 July 2015: Mr Keramidas;
(h)24 August 2015: a joint report by the traffic engineers and Dr Casey;
(i)27 August 2015: Mr Johnston;
(j)28 August 2015: Mr Keramidas;
(k)28 August 2015: Dr Casey;
(l)7 September 2015: Dr Hart;
(m)3 September 2015: Dr Casey;
(n)3 September 2015: Mr Keramidas;
(o)8 September 2015: joint report by traffic engineers and mechanical engineers;
(p)9 September 2015: joint report by traffic engineers;
(q)28 September 2015: Dr Hart;
(r)16 October 2015: Dr Casey;
(s)13 November 2015: joint report by traffic engineers.
The traffic engineers gave oral evidence concurrently. Ultimately, the mechanical engineers were not required to give oral evidence.
In summary, the evidence of the mechanical engineers was to provide a description of, and an assessment of the capacity of, the electric motor kit that was fitted to the plaintiff’s bicycle. This was significant because the information so obtained fed into the opinions of the traffic engineers. The traffic engineers endeavoured to reconstruct the circumstances of the accident as best they could based on the information that was available.
The process of expert investigation of the circumstances of the accident and the nature of the plaintiff’s electrical bicycle had the effect of refining and confining the issues in dispute between the experts. As will be apparent from the number of expert reports produced, the process of that investigation and the availability of new evidence and information lead to the evolution of the expert opinion during the course of the preparation for the hearing and during the hearing itself.
The most significant additional factors that influenced the course of expert opinion were:
(a)The availability in August 2015 of measurement data collected at the scene of the accident by officers of the Australian Federal Police (AFP) relating to the position of the first defendant’s vehicle immediately after the accident, including data relating to the length of skid marks caused by the rear wheels of the first defendant’s vehicle. This new information permitted the traffic engineers to make a better estimate of the speed at which the first defendant was travelling immediately prior to seeing the plaintiff and applying the brakes.
(b)Information made available in September 2015 following the examination and testing of the controller from the plaintiff’s electric bicycle so as to permit a comparison between the power output and acceleration generated by that controller when compared to exemplar controllers used by the experts for the purposes of estimating the plaintiff’s speed when travelling on Milford Street.
(c)The sightline analysis conducted in October 2015 by the traffic engineers at the scene of the accident. In combination with the data from the AFP, this permitted the traffic engineers to estimate the point at which the plaintiff was first seen by the first defendant, estimate the plaintiff’s speed and make an assessment of whether or not the accident was inevitable having regard to the plaintiff’s likely reaction times and likely braking distance.
Ultimately there were only a small number of matters in contention between the experts. The issues on which there was disagreement between one or more of them were:
(a)The speed at which the first defendant’s vehicle was travelling immediately prior to the first defendant applying the brakes. This was dependent upon the length of the skid marks of the first defendant’s vehicle and what coefficient of friction it was appropriate to apply to the skidding process.
(b)Whether or not, for the purposes of calculating the reaction time of the plaintiff or a reasonable person in the position of the plaintiff riding along the shared path on Milford Street, the person was or should have been “cued” or “uncued”. This was significant in determining whether or not the plaintiff should have been able to apply the brakes or swerve prior to colliding with the first defendant’s vehicle.
(c)The speed at which the plaintiff’s bicycle was travelling between the point at which he should have been able to see the first defendant’s vehicle and the point of the impact. This was significant because it both fed into the overall analysis of whether or not the accident was inevitable as well as being significant for the defendants’ allegation that the plaintiff was contributorily negligent because he was travelling too fast in the circumstances.
Technical aspects of the plaintiff’s electric bicycle
It is not necessary to make detailed findings in relation to the electric bicycle because ultimately there were only a few features of it of significance for the expert opinion.
The electric motor was contained within the hub of the front wheel of the plaintiff’s bicycle. It was connected to a controller, an accelerator and a series of three 12 volt batteries.
The nominal power of the motor was 500W. The traffic engineers initially conducted road tests involving 200W and 500W motors in order to be able to estimate the acceleration characteristics and likely maximum speed reached by the plaintiff’s bicycle.
The actual performance characteristics of a 500W motor will be determined by the design of the controller. While Dr Casey initially expressed the opinion that the controller on the plaintiff’s bicycle would generate "about twice" the amount of power than the controller which had been used by the traffic engineers in their previous testing of a 500W motor, both Dr Hart and Dr Casey were ultimately able to operate the controller and found that this was not correct. Dr Hart was also able to demonstrate that the maximum speed that would be produced by the controller was approximately 23 km/h. Dr Casey found it was 24 km/h. Ultimately the mechanical engineers largely agreed about the operation of the controller. The plaintiff’s controller was able to be tested in a demonstration undertaken jointly by the traffic engineers, although it tended to cut out in a manner which indicated that it was not functioning in the same manner as it had when attached to the plaintiff’s bicycle. The conclusion that they reached was that for the purposes of this case, subject to the limitations on its maximum speed, it should be treated as having equivalent characteristics to the controller which had been used by the experts for the purposes of their previous testing.
The end result of the mechanical engineers and traffic engineers’ deliberations was that the performance characteristics of the plaintiff’s electric bicycle were able to be estimated by comparison to the equivalent bicycle and motor arrangement tested by the traffic engineers. Although the performance characteristics demonstrated by the plaintiff’s controller had some differences from the controller used in the traffic engineers’ original testing, neither party made a submission that the performance of the plaintiff’s kit should be found to be relevantly different from the performance of the 500W motor with the other items used in the traffic engineers’ original testing.
The methodology of the traffic experts
By the conclusion of the evidence, subject to discrete disagreements on particular issues, the methodology adopted by the traffic engineers was to use their estimate of the first defendant’s speed, the available sight lines and estimates of the first defendant’s and the plaintiff’s reaction times in order to estimate the plaintiff’s speed and the inevitability or avoidability of the accident.
The methodology adopted is described at figure 6.1 in the joint expert report dated 13 November 2015. The assessment made by the experts was in order to determine whether the plaintiff, acting in accordance with the assumptions built into the calculations, could have avoided the accident. If on their calculations there was time for the plaintiff to have applied his brakes (or swerved) then the fact that he did not might indicate that he was not paying the attention that he should have been and hence did not have the whole of the theoretically available time to react to the first defendant’s vehicle. On the other hand, if on the calculations there was not sufficient time for the plaintiff to have applied his brakes and avoid the accident, this would indicate that the accident was an inevitable consequence of the first defendant reversing out of his drive into the plaintiff’s path. However, it might also be taken as indicating that the plaintiff was riding too fast in the circumstances, therefore reducing the time available for him to react to the hazard presented.
The basic methodology adopted by the traffic engineers in order to determine the avoidability of the accident was as follows. I have described the steps in a manner corresponding to the rows of the table described in Exhibit 1 at 505A. I will refer to the driver of the vehicle as being “the driver” and the rider of the electric bicycle as being “the rider”.
Step A. The traffic engineers started with the skid length data provided by the AFP. Notwithstanding these data there was a disagreement between the experts both as to the appropriate measurement of the length of the skid marks and the appropriate coefficient of friction. They did agree that the length and coefficient of friction issues could be addressed by an adjustment to the coefficient of friction, but disagreed as to whether such an adjustment should be made. Using an assumed coefficient of friction (about which the experts disagreed) and applying that to the length of the skid marks it was possible to derive the speed at which the vehicle was travelling immediately prior to the brakes being applied. Because of the difference of opinion as to the appropriate coefficient of friction this resulted in a speed of 12.1 km/h (Mr Johnston and Mr Joy) or 8.8 km/h (Mr Keramidas). Because this speed influenced the remaining estimates, the difference of opinion reflected in the differing coefficients of friction flowed through the balance of the exercise. It can be noted at this stage that, prior to the availability of the AFP data, the traffic engineers had estimated the speed of the driver’s vehicle at 8 to 9 km/h.
Based upon the derived speed of the driver’s vehicle it was also possible to make an estimate of the time taken to bring the vehicle to a stop from the point at which the brakes were applied – the jeep stopping time. As I understand it, the methodology for doing so was agreed between the experts but, because of their different estimates of speed, the times were different.
Step B. Next, the likely perception/response time of the driver was used to calculate the distance that the first defendant travelled between perceiving the presence of the plaintiff and applying the brakes. The perception/response time is the time that a person will take between perceiving a hazard and physically responding to it by an act such as applying the brakes. It will vary depending on the circumstances of the person and the nature of the hazard. Because the experts agreed that the first defendant would have been alert to the possible necessity to rapidly apply the brakes, they agreed that a response time of 0.6 to 0.8 seconds was appropriate. The distance travelled during this period prior to the brakes being applied could then be estimated. Mr Joy and Mr Johnston estimated this at 2.0 to 2.7 m and Mr Keramidas identified it as 1.5 to 2.0 m
Step C. The total time from perception to stop was then estimated by adding the driver’s perception/response time to the jeep stopping time. So too could the total distance travelled between perception to stop be estimated by adding the times derived at step A to the time estimated in step B.
Step D. Based upon the known final resting place of the vehicle it was then possible to measure the total distance back up the first defendant’s driveway and identify the point where the driver was located when he first perceived the plaintiff. This distance differed as between the experts because of the original difference as to the driver’s speed. The position identified by Mr Joy and Mr Johnston’s calculations was 1.3 to 2.0 m up the driveway from the block boundary. The position identified by Mr Keramidas was 0.6 to 1.1 m up the driveway.
Step E. Based upon the sightline analysis undertaken by the experts on 20 October 2015 (the results of which are summarised in tables 5.1 and 5.2 of the joint expert report dated 13 November 2015) it was then possible to assess the position of the rider when he was first seen by the driver. That is, how far away from the intersection with the driveway was the rider when the driver was first able to see him past the bushes. Mr Joy and Mr Johnston identified the rider at 3.5 to 6.7 m from the intersection. Mr Keramidas identified the rider at 7.9 to 10 m from the intersection.
Step F. At this point the position of the rider when first seen by the driver was known as was his position at the point of impact. The total duration between perception and the impact was known (from the steps A and B above). Therefore it was possible to calculate the average speed of the bicycle between its perception by the driver and the impact, assuming that the impact occurred at exactly the same time as the vehicle came to a complete stop. Mr Johnston and Mr Joy arrived at an estimate of 10 to 22 km/h and Mr Keramidas arrived at an estimate of 20 to 30 km/h. The differences remain the product of the initial difference of opinion as to the appropriate coefficient of friction to be adopted. Mr Keramidas, however, noted that based on other evidence available (namely, the maximum speed imposed by the controller) the maximum speed of the bicycle was 24 km/h and hence the average speed must be between 20 and 24 km/h rather than 20 and 30 km/h.
Step G. From this information it was then possible to assess whether, having regard to expected perception/reaction times, it was possible for the rider to react to the hazard that had appeared in front of him and, if so, whether he would have had sufficient time to bring his bicycle to a stop. This was done by estimating the time between the rider first being able to see the driver’s vehicle and the impact. That was done by starting with the time that it took the driver to stop the vehicle (at step C above) and then adding to that the additional time that the rear of the driver's vehicle would have been visible to the rider before the driver was in a position to see the rider. This latter time is arrived at by working out how long, at the assessed speed, it would have taken the vehicle to travel a distance equivalent to the distance between the driver and the rear of his vehicle. For reasons which are not clear, Mr Joy and Mr Johnston adopted a distance of 1.7 m whereas Mr Keramidas adopted a distance of 1.9 m. This may depend upon whether the spare tyre at the back of the vehicle was included in the measurement. However, the estimates for the time taken for this additional distance to be covered were very close: 0.6 seconds for Mr Johnston and Mr Joy and 0.8 seconds for Mr Keramidas. Adding the time identified at item C, the estimates of the time during which the rider could see the vehicle prior to the impact were 1.7 to 1.9 seconds for Mr Johnston and Mr Joy and 2.0 to 2.2 seconds for Mr Keramidas.
Step H. It is at this point that a further area of disagreement between the experts becomes relevant. That is as to whether the rider should be considered to be “cued” or “uncued”. If a rider is treated as cued then the expected time between perception of the hazard created by the driver’s reversing vehicle and response is likely to be lower than if the rider is uncued. The term “cued” is used in the sense of being alert to the possible need to avoid an impending hazard. I will return to the subtleties of the concept in more detail below. Mr Johnston and Mr Joy considered that the rider should be treated as “uncued” whereas Mr Keramidas thought that he should be “cued”. The effect of characterising the rider as being uncued is to give him a longer perception/response time and hence make it more likely that, even doing the best he could, he would be unable to respond to the hazard by applying the brakes and stopping the bicycle prior to impact. On the other hand, a shorter perception/response time would mean that, doing his best, he would be more likely to have been able to apply the brakes and reduce the speed of his bicycle before the impact with the driver’s vehicle. Mr Johnston and Mr Joy adopted an uncued response time of 1.75 seconds. This was arrived at by taking a figure between of the 50th percentile figure for perception/response time (1.2 seconds) and the 85th percentile figure (2.1 seconds). Mr Keramidas on the other hand adopted what he described as an “alerted response time” of 0.9 to 1.3 seconds.
The time available in which the rider might be expected to apply his brakes or swerve was then assessed by deducting the perception/response time from the total time during which the rider could see the vehicle (derived at step G). That exercise indicated to Mr Johnston and Mr Joy that “the rider could respond at about the time of impact which may be consistent with the evidence that he yelled and ducked just before impact”. That was because the longest period during which the rider could see the vehicle was 1.9 seconds, which after deducting the 1.75 seconds of perception/response time would leave only 0.15 seconds to react. If the lower estimate of the period during which the rider could see the vehicle was adopted, 1.7 seconds, then the impact occurred before the rider would have been able to physically react to the hazard. On the other hand, adopting Mr Keramidas’ figures there was between 0.7 and 1.3 seconds during which the rider might have been able to physically respond to the hazard.
Step I. Mr Johnston and Mr Joy set out the total distance that would be travelled during the uncued perception/response time. Mr Keramidas on the other hand set out the distance that would be travelled at either 20 or 24 km/h over the period available for the rider to make a physical response after the expiry of the “alerted response time”. Those distances were 3.9 and 8.7 m respectively. They are the distances which would be available to the rider to respond if travelling at the speeds worked out in accordance with the preceding steps.
Step J. The experts then identified the required stopping distance based on a deceleration force of -0.4g. These figures were simply a product of the starting speed and the respective speeds and stopping distances in ascending order are: 10 km/h: 1 m, 20 km/h: 3.9 m, 22 km/h: 4.8 m, 24 km/h: 5.7 m. Because at 20 km/h the stopping distance is 3.9 m it would have been possible to bring the bicycle to a halt within the distance available. At 24 km/h the stopping distance is 5.7 m, and because 8.7 m were available to the rider, it would have been possible to bring the bicycle to a halt well within the available distance. On the other hand, as indicated at step H, so far as Mr Johnston and Mr Joy were concerned the impact would have occurred either before or at about the time when braking would commence.
General observations about the differences between the traffic engineers
It must be observed that the calculations undertaken by the traffic engineers all involve small distances and very short periods of time. The longest estimate of the time between the rider first seeing the vehicle and the impact is Mr Keramidas’ estimate of 2.2 seconds. It will be apparent that in those circumstances minor differences in the inputs or assumptions made by the experts may have significant consequences for the conclusions that are reached. Because of this, care must be taken in assessing the evidence to ensure that the vulnerability of the inputs to minor inaccuracies in the assumptions is taken into account.
Most significantly, all of the experts assumed that the plaintiff’s impact with the first defendant’s vehicle occurred at the same time as that vehicle came to a halt. While there was no specific lay evidence that confirmed that this was the case, having regard to the fractions of seconds that might have been involved, it was a reasonable assumption for the traffic engineers to make for the purposes of confining the variables within their calculations. However, so far as the issues for the Court are concerned, if, for example, the vehicle had stopped for 0.2 seconds prior to impact then that would have substantially altered the calculations. Using Mr Keramidas’ calculations it would mean that instead of using the total vehicle stopping time (1.2 to 1.4 seconds) in order to calculate the average speed of the vehicle, it would be necessary to adopt instead 1.4 to 1.6 seconds because of the 0.2 seconds which it took, after the vehicle was stopped, for the bicycle to hit the vehicle. That would reduce the lower estimate of the plaintiff’s speed from 20 km/h to 17.8 km/h. It would also increase the time available for the plaintiff to have stopped prior to impact.
The plaintiff’s submissions were that, having regard to the lay evidence, a finding should be made that the collision occurred “at about the time the Jeep halted”. The defendants, on the other hand, submitted that the precision with which the witnesses provided their estimates of time did not allow for such a finding to be made and that, even accepting the lay evidence, it was consistent with the driver having been stopped for some short period of time which would, in turn, affect the calculations of time and distance available for the rider to respond.
The submissions of the parties are, in fact, not necessarily inconsistent with each other. A finding that the impact occurred “at about the time” the Jeep halted is imprecise enough to be consistent with the defendants’ position. I agree that the level of precision in the lay evidence is not such as to permit a finding that, to the degree of precision that would exclude uncertainty from the experts’ calculations, the impact occurred at the time the vehicle halted. Having regard to the brevity of the events in question, it is unlikely that the witnesses would recall a difference of up to 0.5 of a second between the stopping of the vehicle and the impact. It is almost certain that they would not perceive a difference of 0.2 seconds having regard to the movement of the vehicle as it skidded to a halt and the impact itself. Yet, as illustrated above, even such a difference may have a significant effect upon matters in contest in this case. As a consequence, while it is possible to find that the impact occurred at about the time of the vehicle coming to a halt, the accuracy of the very precise assumptions and estimates made by the experts are vulnerable to the imprecision built into such a finding and it is necessary to take into account that imprecision in assessing the evidence relating to, most significantly, the speed at which the plaintiff was travelling along the shared path.
Evidence of the plaintiff’s speed
The plaintiff’s description of his riding up to the point of impact was that he accelerated to the crest of the incline under electric power and without pedalling and then, having passed the crest, he “eased down” on the accelerator to proceed at his normal speed.
The plaintiff ultimately estimated his speed at 15 km/h. He had previously estimated it at 10 km/h. However, having experienced his wheelchair travelling at 10 km/h he considered that this estimate was a bit slow. He did not agree with the proposition that he was travelling at more than 15 km/h.
The first defendant’s evidence was that the plaintiff was travelling at about 20 to 25 km/h. He had not provided that estimate to his solicitor or to the police. He described the impact as being “pretty significant”. His evidence was that he said to the plaintiff immediately after the accident “You were flying mate”.
Based upon their assessment of the damage caused to the bicycle and the motor vehicle, the evidence of the traffic engineers in their joint expert report dated 24 August 2015 was as follows:
(a)Based on damage alone:
(i)Minimum impact speed: 10 km/h (Messrs Joy and Johnston), 15 km/h (Mr Keramidas);
(ii)Maximum impact speed: 25 km/h;
(b)Taking into account other information:
(iii)Minimum speed: 15 km/h (Messrs Johnston and Keramidas);
(iv)Probable speed: “around 20km/h” (Messrs Johnston and Keramidas), “around 15 km/h” (Mr Joy).
Their view of the probable impact speed was refined in oral evidence so that it was:
(c)15 to 20 km/h (Mr Johnston);
(d)15 to 20 km/h with a preference to the upper end of that range (Mr Keramidas);
(e)15 km/h (Mr Joy).
The evidence in relation to the capacity of the bicycle under electric power was that it had a maximum speed of approximately 23 km/h in the laboratory testing undertaken by Dr Hart, 24 km/h in testing by Dr Casey and 22 to 24 km/h as determined by the field testing undertaken by the traffic engineers and reported in their joint report of 13 November 2015.
Depending upon the coefficient of friction adopted in relation to the first defendant’s skid marks, the calculations undertaken by the traffic engineers indicated the plaintiff’s speed was either 10 to 22 km/h or 20 to 30 km/h, with the latter range being modified to 20 to 24 km/h in the light of the empirical evidence about the operation of the controller.
The defendants submitted that the impact speed assessed by the experts based upon their examination of the impact damage should not be considered stronger evidence than the calculations set out in their 13 November 2015 report. To the extent that this submission suggested that the evidence based on impact damage should not be considered or given little weight, I do not accept the submission. Even once the areas of contention between the traffic engineers have been resolved, because of the range in perception/response times, the estimates of speed generated by their calculations will also involve a range. Similarly, as pointed out above, their estimates necessarily incorporate some imprecision because of the assumption that the impact occurred at the same time that the vehicle stopped. In my view it is appropriate to take into account the other evidence in relation to the speed of the plaintiff in order to reach a finding as to the plaintiff’s speed based on the whole of the evidence.
I have assessed the evidence outlined above as follows.
In relation to the plaintiff’s estimate, there was some basis for his estimate in the comparison between his riding speed and the speed of his current electric wheelchair. However, apart from speed relative to that of his electric wheelchair the plaintiff has no particular expertise or experience relevant to estimating speed and the circumstances of the accident mean that any specific recollection of a matter such as speed is unlikely to be more than a matter of general impression relative to his normal riding behaviour. It might have been different if there was evidence, for example, that prior to the accident he routinely used a bicycle computer to identify his speed and hence a basis for finding that his estimate of his speed on the day of the accident was an informed one.
In relation to the evidence of the first defendant, once again I treat his estimate of the plaintiff’s speed with caution given that he only saw him for approximately two seconds in circumstances which were otherwise traumatic and made no estimate of the plaintiff’s speed to either the police or his solicitor closer to the time. Further, although he had been a cyclist in the past he was not demonstrated to have any particular experience or expertise which would enhance the reliability of his estimate. Insofar as the estimate of speed might be influenced by the statement that the first defendant made at the time “You were flying”, I place little weight on that for present purposes. Having regard to the uncontroversial fact that the plaintiff failed to apply the handbrakes and crashed headlong into the side of the first defendant’s vehicle, it is unsurprising that he described him as “flying” because the more usual situation would be one where the colliding vehicle at least made some attempt to swerve or brake in advance of the crash and hence reduce the speed at which the impact occurred.
The speed estimates based on impact damage do involve matters of impression on the part of the experts. However, each of them puts the speed within the range 15 to 20 km/h, although Mr Joy’s estimate is of 15 km/h and Mr Keramidas expresses a preference for the upper end of that range.
It is necessary to note two other sources of evidence indirectly relevant to the assessment of the plaintiff’s speed:
(a)Mr Christopher Bray, who lived at number 19 Milford Street, gave some evidence about the time between the plaintiff passing his house and when he heard the collision. However, I do not consider that his evidence provides a reliable means of estimating the plaintiff’s speed.
(b)There was evidence that the first defendant had estimated the period between seeing the plaintiff and the impact at either 1 to 1.5 or 1 to 2 seconds. While any precision involved in the estimate needs to be treated with caution, this evidence must be taken into account when reaching conclusions as to the plaintiff’s speed.
The speed of the first defendant’s vehicle
As described above, the traffic engineers derived the speed of the first defendant’s vehicle using the length of the skid marks measured by the AFP and an assumed coefficient of friction applicable to the vehicle’s tyres on the concrete driveway. The differences of opinion related both to whether the length of the skid marks as measured by the AFP should be adjusted and the appropriate coefficient of friction to be applied. They agreed that both areas of disagreement could be accommodated by an adjustment to the coefficient of friction for the purposes of the calculations.
The coefficient of friction is assessed by Mr Johnston as being - 0.75 g. This is explained in his report dated 19 December 2014 (Exhibit 1 at 176) as being “typical friction rates for a vehicle tyre on a concrete surface”. Adopting this coefficient of friction assumed that no adjustment was required to the length of the skid marks as measured by the AFP.
In his report dated 16 February 2015, Mr Keramidas said that the skid resistance was not likely to be higher than 0.75 g and was more likely to be closer to 0.6 g.
The joint expert report of 24 August 2015 appeared to resolve the issue of the speed of the first defendant’s vehicle, settling upon a speed of 8 to 9 km/h. However, the basis for that conclusion and the assumed coefficient of friction was not identified in that report.
Following the completion of the joint expert report in August 2015, the AFP site investigation data were made available to the experts and Mr Johnston, in his report dated 27 August 2015, reverted to his estimate of 12 km/h. In his report of the 28 August 2015, Mr Keramidas explained his reasons for not accepting the length measurement identified in the AFP data. He pointed to some discrepancies in the measurement and the need to take into account the contact patch of the tyre.
The experts appeared to maintain their respective positions in the joint expert report dated 13 November 2015. The comments in that report (Exhibit 1 at 506) leave it unclear as to precisely how the issues around skid resistance and the length of the skid marks were resolved.
The issue was returned to in the oral evidence of the traffic engineers. Mr Keramidas and Mr Johnston explained that rather than adjust both the skid length and the coefficient of friction, it was possible to make a reduction to the coefficient of friction that would accommodate changes to both parameters. However, the experts agreed to disagree as to whether the adjustment should be made. They did agree that if the change was made the effect would be to alter the coefficient of friction from -0.75 g to -0.4 g. Thus the approach taken has not required the experts to finally articulate their reasons for differing as to skid length and coefficient of friction.
In final submissions the plaintiff, without making any concession, put forward calculations based upon an assumed speed of the first defendant’s vehicle of 8.8 km/h, that is, consistent with the calculations proposed by Mr Keramidas. That was consistent with the assessment made by the traffic engineers in the absence of the AFP data in the joint expert report of 24 August 2015. The points made by Mr Keramidas in his report of 28 August 2015 in relation to the reliability of the measurements taken by the AFP were not answered in the evidence given by Mr Johnston or Mr Joy and they appear to me to be reasonable points made about the reliability of the data. The other point made in that report was in relation to the presence of material on the concrete surface which might have reduced the level of friction. Nothing in the evidence would point to there being any obvious reduction in the coefficient of friction having regard to the existence of loose material on the concrete surface. There is not enough evidence concerning the estimation of the coefficient of friction of concrete to permit an assessment of the likelihood that the coefficient of friction of this concrete would be less than that which forms the basis for commonly used estimates of the coefficient of friction between rubber and concrete.
Because of the fact that the issues with the reliability of the measurement of the skid marks raised by Mr Keramidas were not answered by Mr Johnston or Mr Joy and because of the original agreed estimate of the speed of the first defendant’s vehicle being between 8 and 9 km/h, I find that the speed at which the defendant was travelling was approximately that assessed by Mr Keramidas, namely 8.8 km/h.
Cued v Uncued
The issue of perception/response time was articulated in the joint expert report dated 24 August 2015. The experts all relied upon perception/response time values for both rider and driver based on a computer program developed by Dr Geoffrey Muttart, referred to in evidence as the I.DRR computer program. They agreed upon the appropriate response time for the first defendant being 0.6 to 0.8 seconds because he was actively looking for potential conflicts and hence in a “highly alerted state”.
There was, however, a disagreement in relation to the circumstances of the plaintiff. Mr Keramidas had explained his approach to the I.DRR program in his report dated the 16 February 2015. In the joint expert report dated 24 August 2015, Mr Keramidas contended that the plaintiff should be considered as “cued” because he was aware of the potential for vehicles to intrude into his path and, for that reason, should be considered to be in a higher state of alertness than if he was travelling on a “straight road” with no such expectation. He pointed to the fact that the plaintiff had previously used this section of the shared path and would have been aware of the existence of a number of driveways crossing the shared path and the fact that they were obscured from view due to vegetation.
Mr Johnston dealt with this in his report dated 19 December 2014. He contended that the state of alertness was not justified as there were very limited vehicular or pedestrian movements into and out of the properties and therefore the expectation of a conflict was reduced. He also relied upon the description of this field from the narrative to the I.DRR computer program provided by Dr Muttart which stated “if a driver is approaching a side street that is unpaved and has a traffic volume of less than five vehicles per day, a driver will not likely respond as they have at intersections” and “if a vehicle is driving out of a driveway with a width of more than 8.5 m and there are steady streams of traffic emerging from that driveway, drivers are likely going to react as if it is an intersection location”.
By the time the experts gave oral evidence they were able to do so in the light of the evidence that had been given by the plaintiff during the hearing. Mr Keramidas relied upon the plaintiff’s understanding that there was potential for danger from his left and specifically looking for the emergence of a hazard. Mr Johnston maintained his disagreement with Mr Keramidas’ approach. That was because Dr Muttart’s approach was to define parameters in his computer program based upon reaction time studies and state those parameters. He defined the circumstances in which an uncued scenario could become cued, for example if the rider heard a horn or had a near miss the day before. He contended that Dr Muttart’s definition should be applied and upon that basis it was an uncued situation. Mr Joy agreed with Mr Johnston on the basis that if the plaintiff was regarded as being in a cued condition he would have had to have been expecting a vehicle to come out of the driveway.
While the figures provided by Dr Muttart are simply empirical figures about how people in fact behave, there are both empirical and normative aspects to the question of perception/response times in this case. That is because, if the plaintiff is found to have in fact been uncued then the defendants contend that the lack of alertness involved a failure to keep a proper lookout.
As articulated, the arguments put forward by the experts in support of either contention are reasonable. It is very difficult to assess which approach should be preferred in the absence of additional information about the Muttart research and the method by which perception/response time values could be estimated in the absence of that research.
Much depends upon whether one is assessing what was or what ought to be, that is the empirical rather than normative question. If one asks what was the situation, then, although the plaintiff’s evidence was that he was conscious of the possibility of drivers emerging, having regard to his previous experience of having never seen a driver emerge from these driveways, he may well have been proceeding on the basis that the section of path was equivalent to straight road. However, if one asks what should have been the case, that is, the normative question, then given the circumstances, namely a section of path with the risk of hazards appearing suddenly from behind vegetation, it is more clear that the plaintiff should have been alert in the same way that he would have been at an intersection and hence treated as being cued.
At this point it is sufficient to answer the normative question, namely whether or not the plaintiff should have been “cued” in the sense of being alert to the fact that each of the driveways of which there was poor visibility on approach might present an otherwise unexpected hazard by reason of a vehicle suddenly emerging and crossing the shared path. Notwithstanding that the plaintiff had not previously experienced such a hazard, having regard to the layout of the path, such a hazard was one which ought to have been obvious to a cyclist who had ridden on that path previously. As a consequence, a cyclist approaching each such driveway ought to have been “cued” in the same way that the driver of a vehicle approaching an intersection would be cued.
In making that finding I accept that this involves a departure from the strict parameters identified in the I.DRR computer program. The reason I have accepted a methodology that departs from the notations about the parameters referred to by Mr Johnston is that I consider it would be inappropriate, in the absence of detailed evidence about the I.DRR computer program and the estimation of perception/response times, to rigidly apply such parameters to specific circumstances outside those to which it is routinely applied. It appears to me to be necessary in asking the normative question to give some weight to the obvious hazard presented by obscured driveways.
Even in answering the empirical question, assessment of the extent to which the circumstances of the plaintiff should be treated as equivalent to the circumstances contemplated in the I.DRR computer program needs to be considered. On that issue, notwithstanding the plaintiff’s evidence, I accept that his experience in relation to the driveways crossing the shared path was that the potential hazard had never appeared and that, as a result, he was likely to have proceeded in a manner equivalent to the uncued state contemplated by Dr Muttart’s program.
Finally I note that there was a disagreement between the traffic engineers as to which percentile figure should be used in assessing likely response times. Mr Joy contended that rather than using the 50th percentile or 85th percentile, the figure for the 99th percentile should be adopted. This was an issue which, although identified in the evidence, was not the subject of detailed debate between the experts or submissions of the parties.
For the purposes of assessing the avoidability of the accident, the adoption of the 85th percentile as the longest perception/response time means that the time taken by the slowest 15% of people would be excluded from the range taken into consideration. That is, 15% of people doing the best that they could would be outside the range considered by the calculations. A person who has naturally slower response times cannot be said to be behaving unreasonably just because their response times are longer than the fastest 85% of people. The situation might be different where the person has or ought to have knowledge that their response times were slower than most people because in those circumstances a reasonable person might adjust other aspects of their behaviour so as to accommodate their slower than usual response times. However, in the present case there was no evidence about the plaintiff or first defendant’s perception of their own response times and hence no basis for a contention that their behaviour should have been modified because of what they knew.
Therefore, the prima facie position appears to be that the full range of possible response times should have been identified so as to expose the full degree of uncertainty in the experts’ calculations. However, this position may be affected by the nature of the study cohorts which form the basis for the I.DRR computer program and the distribution of response times within those cohorts about which there was no evidence. In the light of the limited evidence and submissions on this point, the best that I can do is recognise that caution must be adopted when considering calculations based upon perception/response time ranges for the additional reason that there is uncertainty as to whether or not the ranges adopted appropriately reflect the response times of people at the naturally slower end of the spectrum.
Conclusion as to the plaintiff’s speed
I have concluded above (at [103]) that it is appropriate to adopt Mr Keramidas' assessment of the speed of the first defendant’s vehicle. Following the methodology outlined at step F above (see [72]), that would result in an estimate of the plaintiff’s speed of 20 to 30 km/h. Mr Keramidas recognised that that estimate must be modified so as to be consistent with the accepted maximum speed of the bicycle under electric power of 24 km/h. However, as pointed out above, I consider that this evidence must be considered along with the other evidence relevant to the plaintiff’s speed, namely the assessments by the traffic engineers of his speed at impact based on damage alone and their overall assessment of his likely speed when the first defendant reversed out.
Further, as pointed out at [78] above, I consider that the assessment of the plaintiff’s speed made by the experts based upon speed and sight line analysis must be considered in the light of the very fine tolerances in the analysis arising from the short distances and times involved, as well as the susceptibility of the analysis to be altered if the assumption as to the impact occurring at precisely the moment at which the first defendant’s vehicle stopped is not accurate to 0.1 of a second.
Lastly, as discussed at [114]-[116] above, in a case in which such short times and distances are involved, there is the potential that adopting ranges based upon the 85th percentile in relation to reaction times of the plaintiff and first defendant may inaccurately confine the scope of the analysis and give it a precision which is not accurate. That is because there is no information available as to the actual reaction times of the plaintiff and first defendant when compared with the cohorts that formed the basis of Dr Muttart’s program and, in so far as the response time of the plaintiff is concerned there is no reason for finding that a person acts reasonably only if they happen to have reaction times in the fastest 85 % the population.
Taking into account the whole of the evidence, I find that the plaintiff was riding at a speed of between 15 and 20 km/h and that the best estimate of his speed is approximately 18 km/h. That conclusion is higher than the plaintiff’s assessment of his own speed although, as I have pointed out above, it is not possible to place significant weight on his assessment. Similarly it is lower than the first defendant’s estimate of his speed, but significant weight cannot be placed on that estimate having regard to the matters referred to at [92]. It is consistent with the overall conclusions of the traffic engineers, being slightly higher than Mr Joy’s opinion but consistent with that of Mr Johnston and Mr Keramidas. Although slightly lower than the bottom end of Mr Keramidas’ range derived from his speed and sight line analysis, it is not inconsistent with it when proper regard is had to the uncertainties built into that analysis described above. As illustrated at [79] above, the speed of 18 km/h is consistent with the step K analysis if there was a 0.2 second difference between the stopping time of the first defendant’s vehicle and the plaintiff’s impact.
(I recognise that if, at the bottom end of the range of 15 to 20 km/h, the sightline analysis alone is adopted, then the defendants are correct that it is impossible to maintain the assumption that the impact occurred at the same time as the first defendant’s vehicle came to a stop. Adopting the methodology outlined above, if at step F the average speed of the bicycle is fixed at 15 km/h then assuming that the site line from the position of the first defendant’s vehicle was at the lower end of the range, namely 7.9 m rather than 10 m, it would have taken 1.9 seconds for the plaintiff to reach the point of impact as opposed to the 1.2 to 1.4 seconds adopted in the calculations. That could be accommodated if the impact occurred 0.5 seconds after the first defendant’s vehicle came to a stop. As pointed out above, that is a possibility as the evidence does not preclude it because it is unlikely that either of the witnesses would, in the circumstances, have detected that delay. Of course if the plaintiff's speed was 15 km/h, then there was a greater opportunity for the plaintiff to have avoided the accident and hence a stronger case that he was failing to pay proper attention.)
Conclusion on the avoidability of the collision
If the plaintiff’s speed was approximately 18km/h and the first defendant’s reversing speed was approximately 8.8 km/h then the relevant parameters based on the methodology adopted by the traffic engineers are as follows:
(a)Jeep braking (step A): 8.8 km/h and 0.62 seconds;
(b)Driver perception/response time and distance (step B): 0.6 to 0.8 seconds and 1.5 to 2.0 m.
(c)Total jeep stopping distance (step C): 2.2 to 2.7 m, 1.2 to 1.4 seconds;
(d)Driver’s sight line from point of perception (step E): 7.9 to 10 m.
(e)Average speed of bicycle (substituted for step F): 18 km/h;
(f)Time from perception by driver to the impact: 7.9 to 10 m covered at 5 m/s equals 1.6 to 2.0 seconds (up from Mr Keramidas’ 1.2 to 1.4 seconds, but remaining consistent with the first defendant’s estimate of 1 to 2 seconds referred to at [94]).
(g)Rider’s pre-impact vision of vehicle (modification of step G): 1.6 to 2.0 (time taken at 18 km/h to cover 7.9 to 10 m) plus 0.8 seconds from step G equals 2.4 to 2.8 seconds.
(h)Alerted response time of cyclist (step H): 0.9 to 1.3 seconds, therefore 1.1 to 1.9 seconds of response available.
(i)Response distance available (step I) 5.5 to 9.5 m.
(j)Pedal cycle stopping distance (estimated from step J) 2 to 3.9 m.
These calculations are consistent with the proposition that had the plaintiff been as alert as the cued response time adopted required, then he would have had sufficient time to react to the hazard that presented itself. Because it is clear that he did not in fact apply the brakes, the impact must have occurred within his reaction time. This indicates that his reaction time was outside the 50th to 85th percentile of the cued reaction time. That is consistent with the plaintiff having failed to be alert (in the sense required to be equivalent to a person who was “cued”) to the potential hazard arising from a vehicle reversing from a driveway the entrance to which was obscured by vegetation.
Rule 74 of the Australian Road Rules
The plaintiff relied upon r 74 of the Australian Road Rules as in force at the date of the accident. That rule provided:
74 Giving way when entering a road from a road-related area or adjacent land
(1) A driver entering a road from a road-related area, or adjacent land, without traffic lights or a stop sign, stop line, give way sign or give way line must give way to:
(a) any vehicle travelling on the road or turning into the road (except a vehicle turning right into the road from a road-related area or adjacent land); and
(b) any pedestrian on the road; and
(c) any vehicle or pedestrian on any road-related area that the driver crosses to enter the road; and
(d) for a driver entering the road from a road-related area:
(i) any pedestrian on the road-related area; and
(ii) any other vehicle ahead of the driver’s vehicle or approaching from the left or right.
Offence provision.
Therefore I conclude that this was the least burdensome precaution that a reasonable person in the position of the first defendant would have taken.
Conclusion as to negligence of the first defendant
My finding above is that the first defendant reversed at a speed of approximately 8.8 km/h. While this figure clearly appears to be low having regard to the kinds of speeds at which motor vehicles usually travel, 8.8 km/h is twice ordinary walking pace and equivalent to a jogging or running pace. This is significant because it means that in the very short period from commencing movement to the point where brakes were applied, the vehicle had accelerated from a standing start to a jogging or running speed before braking and skidding for the short distance disclosed by the measurements taken by the police. While there would be nothing unusual or inappropriate about reversing at such a speed if there was a clear vision of the surroundings and no pedestrian or cyclist for whom the reversing vehicle would be a hazard was in the vicinity, in my view, it is clear that it was not reasonable for the defendant to have reversed out at this speed in circumstances where his visibility was extremely limited, he was crossing a path which he knew to be used by cyclists on a regular basis and there were reasonably safe alternatives available to him at minimal cost. That conclusion is strongly supported by the fact that the obligation of the first defendant under the Australian Road Rules was to give way to any pedestrian or vehicle on the shared path.
As a consequence I am satisfied that the defendant was negligent in driving as he did.
Was the plaintiff guilty of contributory negligence?
Section 102 of the CLW Act applies where a person suffers damage partly because of that person’s failure to take reasonable care and partly because of someone else’s wrong: s 102(1). It requires that the damages recoverable for a wrong (other than a breach of statutory duty) be reduced to the extent that the court “considers just and equitable having regard to the claimant’s share in the responsibility for the damage”: ss 102(1)(b), 102(2).
Because the provision uses the phrase “partly because of the claimant’s failure to take reasonable care” it is necessary to establish that the plaintiff’s failure to take reasonable care is causally linked to the suffering of damage. The defendant bears the onus of establishing that causal connection: Hannan v MacLean (1989) 9 MVR 219 at 226; Aitkenhead v Kaufline (No 3) (2014) 66 MVR 479 at [25]-[30].
The statement of the test for contributory negligence is in substance the same test that existed at common law. That involves a comparison of both culpability (in the sense of the degree of departure from the standard of care of a reasonable person) and the relative importance of the act of the parties in causing damage: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494. In that case the judgment of the Court provides:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage ... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.
The test is objective and independent of the subjective attitudes of the plaintiff: Joslyn v Berryman (2003) 214 CLR 552 at [16], [32] and [70].
There is no equivalent in the ACT to s 5R of the Civil Liability Act 2002 (NSW) and hence the issue considered by the Court of Appeal in Steen v Senton (2015) 73 MVR 336 at [36]-[39] does not arise in this case.
The particulars of contributory negligence alleged by the defendants were:
12.1Contrary to section 18 of the Road Transport (Vehicle Registration) Act 1999 operating a registrable, but unregistered, bicycle powered by a 500 W electric motor on the shared path in Milford Street, Latham.
12.2Riding a motorised bicycle in a place and in a manner which was wholly unsafe and contrary to the proper use of a shared path.
12.3Failing to limit the speed of the bicycle to account for vehicles reversing across the shared path as it passed along Milford Street.
12.4Riding the motorised bicycle too fast in the circumstances including the presence of foliage which obscured the driveway to 23 Milford Street.
12.5Failing to keep a proper lookout.
12.6 Failing to take any steps to warn the defendant of his approach.
500W electric bicycle
The submissions of the defendants in relation to contributory negligence were put as an amalgam of factors rather than discreetly addressing each particularised matter. In relation to the illegality of the plaintiff’s electric bicycle the submissions made were:
(a)the plaintiff’s culpability was heightened by the fact that the bicycle was illegal and should not have been used on the shared path;
(b)such illegality was “causative in the sense that the plaintiff’s ability to avoid the accident [was] necessarily affected by the increased braking time associated with a 500 watt electric bike travelling at a speed of 15 to 20 km/h when compared to a normal pedal cycle or even a 200 watt electric cycle”.
These issues are clearly within the scope of paragraph 12.1 of the particulars.
It is clear having regard to the nominal power of the electric motor that it exceeded that permitted to “bicycles” under the Australian Road Rules. However, illegality per se is not relevant. It could not reasonably be argued, for example, that an injured plaintiff who had been driving a vehicle whose registration had expired and was thus committing an offence under s 18 of the Vehicle Registration Act was by reason of that illegality guilty of contributory negligence. The question is, instead, whether the plaintiff’s conduct giving rise to the illegality involved a failure to take reasonable care for his own safety and whether there was any causal link between the facts giving rise to the illegality and the damage suffered by the plaintiff.
In my view, the plaintiff’s conduct did involve a failure to take reasonable care for his own safety. The capacity of an electric motor providing auxiliary power to a bicycle has the potential to affect the safety of the bicycle by affecting its speed, the characteristics of its acceleration and the distance over which it is able to stop. Notwithstanding that the plaintiff was not in fact aware of the size of his electric motor or that it exceeded the permissible capacity for a bicycle under the Vehicle Registration Act and Australian Road Rules, I consider that a reasonable person would, prior to acquiring or riding a bicycle with an auxiliary electric motor, have identified what motors were permissible and would have made enquiries as to the capacity of the motor on the bicycle. The plaintiff did not do this. Electric bicycles are not yet so common and so regulated that a reasonable person may assume that because it has been used or sold that it will comply with the regulatory requirements in relation to its power output. As a consequence I consider that the plaintiff failed to take reasonable care for his own safety.
This leaves open a finding of contributory negligence if the defendants have proved a causal link between the increased capacity of the motor and the damage suffered by the plaintiff. The question then becomes: did the fact that the bicycle had an electric motor capable of producing 500W as opposed to 200W make any difference? I am not satisfied that the defendants have proved that it did.
So far as speed is concerned the plaintiff was travelling at a speed which was consistent with the speed travelled by riders of non-electric bicycles on the shared path. However, the speed at which he was travelling was greater than the speed which could have been achieved by a bicycle that had a 200W electric motor if, from the crest of the incline after the Kingsford Smith Drive underpass, only electric power was relied upon. If that was the case then the expert report of 24 August 2015 shows that the speed that would have been reached by the point of the accident would be between 14 and 16 km/h depending upon the speed at the crest. That is lower than the speed I have found that the plaintiff was likely to have been travelling at. However, in the hypothetical situation that the plaintiff was riding a 200W bicycle there is no evidence as to whether or not he would have been peddling after the crest in order to be able to travel at an increased speed than that which would be possible by relying upon electric power alone. In order for the defendants to establish a causal link between the unlawfulness of the plaintiff’s bicycle and the suffering of damage, the defendants would need to establish that it was more likely than not that with the 200W motor the plaintiff would have been travelling more slowly than the speed that I have found he was most likely to have been travelling at. I am not satisfied that the defendants have done so. Having regard to the plaintiff’s previous history of riding an unpowered bicycle to work and the fact that on a 200W bicycle he would have been required to pedal in order to get up to the crest after the underpass he is just as likely to have continued peddling as he was to cease peddling. The obvious fact that it took less effort not to pedal is not sufficient to indicate that in the hypothetical situation of a lower powered bike he would not have pedalled so as to reach a speed greater than he could using electrical power alone. For that reason I consider that notwithstanding that it was possible that the different size of the electric motor might have had a causal effect upon the damage to the plaintiff, the defendants have not established that in this case.
Insofar as the defendants have raised the different braking characteristics of 500W electric bicycle as opposed to a 200W electric bicycle with an otherwise similar electric kit, that has not been shown to be of any causal consequence in the present case. The evidence disclosed that a 200W electric bicycle might have required one less battery and hence have been approximately 3 kg lighter than the plaintiff’s bicycle. It also disclosed that in a general sense the increased weight of the bicycle would have increased the distance that it required to stop. However, the evidence does not disclose the extent of any difference in stopping distance that would result. In any event, the plaintiff did not attempt to brake at all prior to impact. Because of this, the different stopping characteristics of a 500W as opposed to 200W electric bicycle have not been shown to have any causal consequence.
For these reasons I do not accept the submission that the illegality of the plaintiff’s electric bicycle provides a basis for a reduction of the plaintiff’s damages.
Travelling at excessive speed
The particulars in each of paragraphs 12.2, 12.3 and 12.4 raise the issue of the plaintiff’s speed. The defendants’ contention was that the speed was too great having regard to the potential for vehicles to reverse across the shared path and the fact that foliage obscured the driveway to 23 Milford Street.
I have found above that the plaintiff was travelling at a speed between 15 and 20 km/h, the most likely speed being approximately 18 km/h.
The evidence as to the speed that other cyclists ride at along the path was provided by three lay witnesses as well as a survey undertaken by Mr Johnston.
Mr Mark Harriet, a resident of Latham, gave evidence that he would ride along Milford Street at 15 to 20 km/h because it was bumpy and there were hedges all the way up to the actual path. He would, however, average 24 to 29 or 30 km/h over his whole trip.
Mr Peter Podnar, a resident of one of the houses fronting the shared path on Milford Street, gave evidence that when riding on Milford Street in front of the houses he normally rode at around 15 km/h and in the range of 13 to 18 km/h. His estimate of speed was informed by the use of a bicycle computer.
Mr Bray who lived at another house fronting the shared path on Milford Street observed that the path was frequently used in the evening peak hour and by a lot of cyclists, some travelling at speeds of 25 to 30 km/h.
The survey evidence was that contained in Mr Johnston’s second report dated 30 June 2015 (Exhibit 1 at 272-276). It involved a traffic count in March 2015 during the evening peak hour. The speed of bicycles was measured using electronic light gates across the path. Those light gates were obscured from the view of oncoming cyclists. During a 1.5 hour period, 13 bicycles were detected travelling in the northbound direction although the speeds of two of those bicycles were not recorded. (I note that the table at Exhibit 1 p 274 wrongly refers to it being southbound cyclists, when in fact it should refer to northbound cyclists.) The results of that survey indicated a range of speeds from 14 to 26 km/h. The mean was 18.7 km/h, the median was 19.9 km/h. The mean plus or minus one standard deviation gave a range from 15 to 22 km/h.
In the light of this evidence I find the plaintiff was travelling at a speed consistent with other users of the cycle path. That evidence is also consistent with a finding that speeds within the range of 15 to 20 km/h were considered by other users to reasonably take account of the hazards presented by driveway crossings obscured by foliage, even though greater speeds might reasonably be adopted elsewhere on the shared path.
The defendants contended that little weight should be given to the fact that the speed travelled by the plaintiff was consistent with the speed adopted by other users because the fact that everyone travels at that speed does not prove that it is not an excessive speed in the circumstances. In other words the defendants invited the Court to find on the basis of other evidence that the speed demonstrated by the evidence to be travelled by users of the shared path was excessive. It is thus necessary to examine what other evidence there is that would support such a conclusion.
The only expert evidence that the defendants pointed to was a comment in Mr Keramidas’ first report (Exhibit 5 at 89) made in the context of speed estimates of between 22 to 31 km/h or 24 to 36 km/h. There he said that “the plaintiff’s suggestion of 10 km/h would probably reflect the type of speed expected of a cyclist at this location [with obvious site restrictions and multiple driveways].” This opinion was not developed later or the subject of any additional evidence. I place little weight on it having regard to its tentative nature, its imprecision and the lack of an articulated basis for identification of a particular speed in the light of the hazards referred to.
There was no expert evidence identifying the speeds routinely travelled by cyclists on the shared path to be excessive by reference to any particular standard or unreasonable by reference to the nature of the hazards that might be presented at those speeds.
The defendants also relied upon the evidence of the plaintiff in cross-examination that travelling at 20 km/h or even 18 km/h would be too fast for the conditions. The question and answer regarding the speed of 18 km/h, given in the course of a series of questions about speed, was:
So if you were doing 18 km an hour that’s too fast isn’t it?---I assume so, yes.
As pointed out above I did not give significant weight to the plaintiff’s estimate of his own speed, because it was not demonstrated that, except by reference to the speed of his electric wheelchair, he had had any particular experience with accurately estimating the speed of his bicycle. In any event, when assessing the objective reasonableness of the speed undertaken I do not consider that the plaintiff’s answer given in cross-examination is a matter of significant weight.
Ultimately the defendants’ contention must be assessed by reference to the existence of objective hazards along the path. While clearly the existence of driveways crossing the path was a matter which generated risks, and the presence of obscuring foliage increased the magnitude of those risks, the defendants have not established that a cyclist travelling at 18 km/h and paying proper attention to the potential for a vehicle to emerge from an obscured driveway was failing to take reasonable care for his or her own safety. In other words, I am not prepared to find that the speeds travelled by the users of the shared path are necessarily unreasonable by reason of the hazards that existed. That, of course, presumes that the cyclists are paying proper attention to the existence of those hazards and therefore keeping a proper lookout. This is the issue to which I will turn next.
Failure to keep a proper lookout
The defendants contended that the plaintiff failed to keep a proper lookout. This is pleaded at paragraph 12.5 of the particulars. Clearly enough, travelling at 18 km/h or 5 m/s in the circumstances of a northbound cyclist on the shared path on Milford Street involved a risk that hazards would suddenly appear. There was clearly the risk that a driver exiting in a forward or rearward direction would fail to give way to users of the shared path and emerge suddenly from behind vegetation which obscured a rider’s view of the driveway.
The assessment of the speed and sight line data based on an average speed of 18 km/h which is set out at [122] above illustrates that had the plaintiff been sufficiently alert to the potential hazard that might emerge from the obscured driveway of number 23 to have a “cued” reaction time, then it is more likely than not that he would have been able to apply the brakes, bring the cycle to a halt and avoid the accident entirely. However, it is also clear that he did not apply the brakes. Having regard to the obvious desirability of a rider of a bicycle applying the brakes as an alternative to colliding with the side of a four-wheel-drive, in my view it is more likely than not that the reason that the plaintiff did not apply the brakes was that he was failing to pay sufficient attention to the potential hazards ahead of him and, as a consequence, only recognised the presence of the first defendant’s vehicle at a distance at which the collision would occur within his perception/reaction time. That meant that after perception of the hazard there was insufficient time for him to physically react to that hazard by applying the brakes.
The plaintiff’s oral evidence was that he only realised that the first defendant’s vehicle was in front of him when he was 1.1 to 1.2 m from the collision. I consider his estimate of the distance to be unreliable. His recollection must be assessed in the context of events which took less than 3 seconds overall, the dramatic injury that he suffered immediately upon impact and the passage of time since the accident. At the speed which I have found that he was most likely travelling, the point at which he noticed the vehicle would only be 0.2 to 0.3 seconds prior to the impact. That appears to be a time which is too short for him to have cried out as the defendant gave evidence that he did. It must be assessed in the light of the evidence which I have accepted, that there were approximately 2.4 to 2.8 seconds during which the first defendant’s vehicle was visible prior to the impact. While I do not accept the specific distance of which the plaintiff gave evidence, I consider that his evidence of there only having been a brief period during which he was aware of the hazard before the impact occurred is consistent with him being unable to apply the brakes or take any other measures because the impact occurred within his perception/response time.
The fact that there was approximately 2.4 to 2.8 seconds during which the first defendant’s vehicle was visible and yet the plaintiff only perceived presence of the vehicle within his perception/response time of impact makes it likely that he was paying inadequate attention to the potential hazards on the shared path. As a consequence, he failed to perceive the hazard early enough and failed to perceive it as early as he should have if he had been appropriately alert to those potential hazards. It is not necessary to determine the reason why the plaintiff was not sufficiently alert. He may have been lulled into complacency by the fact that he had not previously seen vehicles crossing the pathway. However, notwithstanding that empirical fact, in my view the potential hazards were such that a cyclist travelling at a speed as high as 18 km/h would only be acting reasonably so long as they remained actively searching for the emergence of potential hazards.
Failure to have horn installed
In their written submissions, the defendants contended that the plaintiff should have had a horn installed on his bicycle so as to be able to warn persons of his approach. Although in paragraph 12.6 of the particulars the defendants particularise the plaintiff’s failure to give the first defendant any warning of his approach, there was no particular asserting that a failure to have a horn fitted to the bicycle involved a failure to take reasonable care for his own safety. It is clearly not possible to use a horn on a bicycle if one is not fitted. Clearly enough, had the failure to have a horn fitted been a particular of contributory negligence the plaintiff may have wished to lead evidence on this point. Having not particularised the failure to fit a horn to the bicycle it was not open to the defendants to put this submission.
The submission was based upon an answer given in cross-examination where the plaintiff agreed with the proposition that he should have a horn on his bicycle. This answer was given immediately after the plaintiff was asked to make an assumption (not supported by the evidence) that the electric motor on his bicycle would permit his bicycle to do speeds of 30 km/h. I do not place any weight upon the answer given by the plaintiff as an admission.
There was no evidence led in relation to what type of horn might be available for the bicycle, its properties, whether it might have been deployed effectively in the circumstances and what the likely response of the first defendant would have been.
For these reasons, even if the defendants had been entitled to make the submission, I would not have accepted the submission that the failure to have a horn fitted to his bicycle provided a basis for reducing the damages otherwise available to the plaintiff.
Deviation on to Milford Street
In their written submissions the defendants contended that the plaintiff should have deviated from the shared path onto the double driveway servicing numbers 19 and 21 Milford Street and onto Milford Street itself before reversing the exercise by returning to the shared path via the double driveway servicing numbers 27 and 29 Milford Street. This is a contention not covered by the particulars but was the subject of cross-examination without objection and I treat the plaintiff to have acquiesced in this issue being raised. While diverting onto Milford Street would have avoided the risk of collision with cars exiting the properties along Milford Street at the point where they crossed the shared path, such a course would have increased the distance required to be travelled, required four turns to be undertaken and required the plaintiff to travel on the road in circumstances where the whole point of the shared path was to minimise the extent to which that was necessary. While such an exercise was possible, in my view the plaintiff did not fail to take reasonable care for his own safety by failing to adopt it. Although there was a risk associated with travelling along the shared path arising from the possibility that vehicles might exit properties on the riders left, fail to give way and cross the shared path, a reasonable person was not obliged to divert from the shared path in order to avoid that risk in circumstances where the risk could be appropriately addressed by proceeding along the shared path and paying attention to the potential hazards posed by the driveways.
To what extent should damages be reduced by reason of contributory negligence?
The first defendant had a choice as to the manner in which he exited his property. He had a variety of reasonably available options which would have avoided the creation of the dangerous situation which arose and which would have meant that it did not matter whether the plaintiff was paying the level of attention to the risks posed by emerging vehicles that the speed at which he was travelling justified. It was the first defendant’s decision to exit in reverse at the speed that he did that brought about the potentially dangerous situation. As a result, I regard the causal potency of the first defendant’s negligence was greater than that of the plaintiff.
In relation to culpability in the sense of the degree of departure from the relevant standard of care, I also find that this issue weighs more heavily against the first defendant than the plaintiff. The first defendant ought reasonably to have been aware that he was required to give way to vehicles on the shared path. He was well aware that the shared path was used by cyclists travelling at speed and was aware that it was used as a commuter route. He was aware that he had a “massive blindspot” when reversing out of the driveway and yet proceeded at the speed that he did in circumstances where he was entirely dependent upon oncoming vehicles to detect the hazard that he created in order to avoid an accident. This conduct must be compared to the conduct of the plaintiff which involved a momentary failure to maintain the level of concentration required in order to guard against the possibility that a driver might not meet his obligation to give way to vehicles on the shared path.
Taking these matters into account I apportion liability 75% against the defendant and 25% against the plaintiff. In other words I consider that it is just and equitable having regard to the plaintiff’s share in the responsibility for the damage that his damages be reduced by 25%.
Conclusion
As a result of my conclusion that the defendant was negligent and that the plaintiff’s damages should be reduced by 25%, having regard to the fact that overall damages were agreed at $12 million, the plaintiff is entitled to judgment in the sum of $9 million. Pursuant to s 151(4) of the Road Transport (Third Party Insurance) Act 1999 that judgment must be entered against the second defendant rather than the first defendant.
Orders
The orders of the Court are:
1. Judgment be entered in favour of the plaintiff against the second defendant in the sum of $9 million.
2. The second defendant is to pay the plaintiff’s costs of the proceedings.
3. Order 2 does not take effect for 14 days and, if any party notifies my associate within that period that the party wishes to be further heard in relation to costs, does not take effect until further order.
| I certify that the preceding one hundred and ninety-eight [198] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 8 July 2016 |
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