Moukahal v Zeait

[2012] NSWDC 33

District Court

New South Wales

Medium Neutral Citation:

Moukahal v Zeait [2012] NSWDC 33

Hearing dates:

28 and 29 March 2012

Decision date:

05 April 2012

Jurisdiction:

Civil

Before:

Levy SC DCJ

Decision:

1.Pursuant to UCPR r 28.2, the liability issues are to be tried separately from the damages issues;

2.Verdict and judgment for the plaintiff against the defendant on the issue of the negligence of the defendant;

3.The plaintiff's contributory negligence is assessed at 20 per cent;

4.The proceedings are stood over for a directions hearing for 10.00am on Friday 13 April 2012 in order to fix a date for the continuation of the trial on the remaining damages issues;

5.Liberty to either party to apply on 7 days notice if further orders are required.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

TORTS - negligence - collision between two motor vehicles travelling in same direction on one way street - collision occurred during lane changing manoeuvre - whether defendant negligent - whether contributory negligence on part of plaintiff - apportionment; PRACTICE AND PROCEDURE - trial of liability as a separate question

Legislation Cited:

Civil Liability Act 2002, s 5E
Motor Accidents Compensation Act 1999
Australian Road Rules 2008, reg 32 & reg 148

Cases Cited:

Angel v Hawkesbury Council [2008] NSWCA 130
Blacktown City Council v Hocking [2008] NSWCA 144
Manley v Alexander [2005] HCA 79; (2005) ALR 228

Category:

Principal judgment

Parties:

Bassema Moukahal (Plaintiff)
Margaret Zeait (Defendant)

Representation:

Dr S Thornton (Plaintiff)
Mr J Ryan (Defendant)
Paramount Lawyers (Plaintiff)
Dibbs Barker (Defendant)

File Number(s):

2011/106731

Judgment

Table of Contents

Nature of the case	[1]
Procedural order	[2]
Liability issues	[3]
Facts not in dispute	[4] - [16]
Reliability of testimony	[17] - [23]
Issue 1 - Alleged negligence	[24] - [32]
Issue 2 - Alleged contributory negligence	[33] - [41]
Disposition	[42]
Costs	[43]
Orders	[44]

Nature of the case

1. The plaintiff, Mrs Bassema Moukahal, claims damages against the defendant, Mrs Margaret Zeait, in respect of injuries the plaintiff received in a motor vehicle accident that occurred on 16 January 2010. The provisions of the Motor Accidents Act 1999 apply to these proceedings.

Procedural order

1. The proceedings were originally listed for a 3-day hearing to commence on 28 March 2012. Owing to an unforeseen complication arising from the report of a medical witness, and which is not necessary to here describe, and as a consequence of the temporary overseas absence of that witness, for pragmatic reasons, the parties agreed that the issue of liability should be determined first, pursuant to UCPR r 28.2. I therefore made an order to that effect, with the intention that a damages hearing would take place at a future time convenient to the parties and to the expert medical witness who was overseas.

Liability issues

1. The liability issues to be determined in the proceedings were clearly identified. The plaintiff carried the burden of proving negligence on the part of the defendant, and the defendant carried the burden of proving alleged contributory negligence on the part of the plaintiff. In each instance, the liability evidence was within a rather narrow compass. The dispute concerned the sequence of events that occurred during a lane-changing manoeuvre undertaken by the plaintiff just before the collision occurred.

Facts not in dispute

1. At about 1.30pm on Saturday 16 January 2010, the plaintiff was driving her Ford Festiva motor vehicle in a general northerly direction along Pitt St, Parramatta, NSW. At the same time the defendant was driving a Porsche Cayenne SUV 4 wheel drive vehicle also in a general northerly direction along the same stretch of roadway.

1. At the accident scene, Pitt St runs in a general northerly direction. It comprises 4 lanes, 3 of which are northbound. For northbound traffic there are two vehicular lanes in the centre of those 4 lanes. The 2 remaining lanes comprise bus lanes to the side of each of those two northbound lanes. One such bus lane is for northbound buses and the other is for southbound buses. Exhibit "B" comprises an aerial photograph depicting the general road configuration and topography of the accident scene.

1. For convenience, the northbound lanes can be described by reference to lanes 1, 2, 3 and 4, with lane 1 being the northbound bus lane to the left of the exhibit, lanes 2 and 3 being the two northbound lanes for vehicular traffic, and lane 4 being the southbound bus lane.

1. The plaintiff stated that she was driving in lane 2 at a stated speed of about 40-50kph. She formed the intention to change lanes from lane 2 into lane 3 to her right. As I understand the evidence of the plaintiff, she said that before doing so, she operated her right turn indicator, looked in the rear view mirror and then the driver's side door mirror, and then turned in the direction of her right shoulder, and in doing so, she saw no other cars in the vicinity of her vehicle.

1. The plaintiff also said that as she had driven along that stretch of roadway she had not seen any other vehicles either behind her or ahead of her.

1. The plaintiff stated that after she had looked to her rear and to her right, she then started to make a gradual lane change manoeuvre to her right. She said that in doing so, she saw no other vehicles in the vicinity. She said that in the course of these events, her vehicle came into collision with another car, which was the vehicle the defendant was driving along Pitt St.

1. The plaintiff stated that her vehicle then spun around, and when it stopped, she felt shocked. She exchanged details with the other driver and then went home, presumably driving her own vehicle in order to do so.

1. The resultant damage to the plaintiff's vehicle from the collision was well demonstrated in Exhibit "C", as is shown in the copied photograph that appears below:

1. The defendant gave evidence that she had been driving north in Pitt St after having earlier first turned left onto Pitt St from the Great Western Highway or Parramatta Rd. She stated that she had "picked up" to "about 40" kph in Pitt St. I understood from that evidence that the defendant had accelerated to that speed once she had turned onto Pitt St. Her evidence as to her speed was imprecise.

1. The defendant stated that after she had turned onto Pitt St and had proceeded some distance to the north, she could not recall whether there was any other traffic around her, either in her lane or in lane 2. Just before the accident she had been looking ahead to traffic at the end of Pitt St, which was some distance away.

1. The defendant described her journey as driving along Pitt St in the northbound lane 3 until the point of the collision as follows:

"Q. As you were coming along Pitt Street towards Campbell Street, did something happen to you?

A. Yeah. A car turned directly in front of me.

Q. Where was the car? Which side of you?

A. It was coming from my left.

Q. Where was it when you first noticed it turning?

A. I first noticed - I remember noticing it in front of me in my lane, turned sideways.

Q. How far away from you was that car when you noticed it turn sideways?

A. I don't remember exactly how far. But it was close.

Q. Are you able to be more specific in terms of metres?

A. Metres. I can't give a

Q. It was close. What did you see, if anything, when the car turned in front of you?

A. When it turned in front of me, I just saw it sideways. I could see the driver through her window. I could see her through her window and I remember just hitting the brakes.

Q. Then what happened?

A. Then I hit her car towards the back.

Q. On which side?

A. Her side of the car.

Q. When you say, when you said earlier that the car was turned, was it that side that was facing you when it was turned initially?

A. The driver's side?

Q. Yes.

A. Yes.

Q. Where in relation to Campbell Street did this impact occur?

A. In front of Campbell Street."

1. There was no evidence of the distance the defendant had driven from Parramatta Rd along Pitt St to the point of the collision. The defendant indicated that her stated speed of 40kph had been "roughly" estimated by her.

1. The defendant stated that she could not remember seeing the plaintiff's vehicle, although she stated that she may have noticed it at the time of the accident. In this regard, the defendant stated that at the time of the accident, she may have noticed the plaintiff's vehicle when it turned in front of her, but 2 years on from that time, she could not now remember these events. The defendant's memory of events had not been maintained since the accident.

Reliability of testimony

1. I am satisfied that both the plaintiff and the defendant each gave their evidence sincerely and to the best of their ability to recount the circumstances of the accident as best they could according to their recollections of the events. I am satisfied that they gave their evidence truthfully, each in accordance with their own belief as to what occurred in the events surrounding the accident.

1. Nevertheless, both of the respective accounts cannot stand to be found to be correct. In these circumstances my task is to determine which of the two versions of the events is to be preferred as being more likely to be correct on the balance of probabilities.

1. In my view the key to the required analysis is to recognise that according to the terms of the evidence of the defendant, at the time of the hearing, some 2 years after the events in question, her recollection of some of the critical events surrounding the collision is incomplete, and is no longer available to be drawn upon. This must be a factor that detracts from the reliability of her testimony on critical matters.

1. That said, this should not be seen as a criticism of the defendant as a witness. It is simply recognition that she could not recall some important events, such as whether there was other traffic in front, behind or beside her vehicle.

1. In contrast, the plaintiff could recall the events in their sequence when asked to recount them. It was not suggested that she had tailored or recently invented her evidence to suit a favourable outcome of her case. That said, I gave consideration to the possibility that this could have been so in a sub-conscious sense. I discounted that possibility because I considered that the plaintiff gave her evidence carefully and she did not give me the impression that this factor was a relevant consideration that required that her evidence be discounted in any material way.

1. In weighing the respective testimonies, I have also considered the factor that the plaintiff had a relevant self-interest in maintaining a recollection of the events, whereas the defendant did not have such an interest in recalling the events. Even after making allowances for that factor, for it must apply in the case of almost every plaintiff giving evidence in their own cause seeking damages, I was nevertheless persuaded that the plaintiff gave her evidence truthfully and accurately.

1. Accordingly, I have therefore concluded that I prefer the plaintiff's more detailed recollection of the events as being more probably than not correct compared to the defendant's incomplete recall of those events.

Issue 1 - Alleged negligence of the defendant

1. Essentially, the plaintiff's allegations of negligence against the defendant centred around a series of alleged failures on the part of the defendant to keep a proper lookout; a failure to give way to the plaintiff when changing lanes, and failure to steer a proper course and manage her vehicle so as to avoid a collision.

1. On behalf of the defendant it was submitted that the plaintiff has not established a proper basis for a finding of negligence against the defendant, including on account of s 5E of the Civil Liability Act 2002.

1. In my view, the defendant's arguments should be rejected for the reasons that follow.

1. First, there was no evidence of rapidly changing traffic conditions surrounding either of the two vehicles as they proceeded north, and which may have caused a driver to be distracted. It is therefore surprising that the defendant had not seen the plaintiff's vehicle until just before the impact and during the plaintiff's lane changing manoeuvre. In my view it was surprising that this was so because the obligation of the defendant was to keep a lookout for the appearance of obstacles, such as pedestrians or other vehicles, on the road and the surrounding area, and to be prepared to take evasive action aimed at avoiding a collision: Manley v Alexander [2005] HCA 79; (2005) ALR 228. Instead, the defendant did not notice the plaintiff's motor vehicle until immediately before the impact between the two vehicles. In my view this is in keeping with the defendant's evidence that she was looking at the roadway some distance ahead. Instead, she should also have been looking in her more immediate vicinity: Manley v Alexander. Had she done so, she would have seen the plaintiff's vehicle and its course of travel in changing lanes, and taken appropriate evasive actions such as braking and steering away from a collision course.

1. Secondly, it would appear that the defendant's vehicle was travelling faster than the plaintiff's vehicle. I infer this to have been the case because I accept that before the plaintiff started her lane changing manoeuvre she had taken all reasonable steps to look for contra-indications for changing lanes. Those actions included looking for the approach or presence of other vehicles behind or beside her vehicle. She had displayed her indicator signal, she looked in both her rear vision mirror and her driver's side door mirror, and had looked over her shoulder. I accept the evidence of the plaintiff that in the course of these events she saw no other vehicles in the vicinity. This leads me to conclude that the defendant's vehicle had approached the plaintiff's vehicle from some uncertain position from behind, and in the course of that approach, the defendant had failed to observe the plaintiff's indicator signal, and had failed to appreciate that it was the plaintiff's intention to change lanes, and as such, the defendant had therefore failed to keep a proper lookout for traffic ahead, including traffic that was changing lanes.

1. Thirdly, whilst no expert evidence was called, and no evidence was introduced concerning relevant distances, or for that matter, more accurate estimates of the speed of either vehicle, some basic conclusions are nevertheless reasonably open to be drawn from the photograph comprising Exhibit "C". That said, caution must be exercised in drawing factual conclusions from photographs: Angel v Hawkesbury Council [2008] NSWCA 130; Blacktown City Council v Hocking [2008] NSWCA 144. Bearing that caution in mind, it is nevertheless apparent from that photograph that there was a collision between the vehicles at the rear driver's side door and surrounds, and to the driver's door of the plaintiff's vehicle, and there was no damage to the rear corner of the plaintiff's vehicle. In my view, this would suggest that the defendant's vehicle was some distance away from the plaintiff's vehicle before the plaintiff started to turn to change lanes. Were it otherwise, that is, if the plaintiff had instead simply turned right and in front of the defendant's vehicle without the opportunity for the defendant to brake sufficiently to avoid an accident, it would appear that damage would also have been evident to that rear corner panel.

1. Fourthly, there is no evidence that would reasonably justify the conclusion that there was a blind spot on the plaintiff's vehicle as argued by the defendant. It was argued that there was a blind spot that would have prevented the plaintiff from seeing the defendant's vehicle when the plaintiff made her visual checks for other vehicles. This necessarily required that such a blind spot would operate at all 3 stages of the plaintiff's actions in looking in her rear vision mirror, her side mirror and then over her shoulder. In my view, it would be unlikely that a vehicle travelling behind and in the vicinity of the plaintiff's vehicle would be in a blind spot during all 3 of those attempts by the plaintiff to check for traffic behind her. Instead, it seems to me that this analysis supports the conclusion that the defendant's vehicle was travelling faster than the speed, which she "roughly" recalled in her evidence, and that it was travelling at an excessive speed for the circumstances given the plaintiff's signalled lane changing manoeuvre.

1. Fifthly, the evidence of the defendant suggests that she took no evasive action until she saw the plaintiff through the window of her car, which was around the time the defendant commenced to brake. I consider that the defendant had in these circumstances failed to keep a proper lookout and had failed to recognise that as she approached the plaintiff's vehicle from behind, in whatever lane she may have been travelling in, she nevertheless failed to observe the plaintiff's signalled intention to change lanes. This factor in combination with the failure to see the plaintiff's vehicle until just before the collision, and since she was looking ahead towards a build-up of vehicles at the end of Pitt St where that street curved to the right at some distance ahead, indicates a relevant failure to keep a proper lookout.

1. I therefore find that the defendant was negligent in the circumstances of the collision and that as a result, that negligence was the cause of the plaintiff's injuries.

Issue 2 - Alleged contributory negligence

1. On behalf of the defendant it was submitted that in the event of a finding of negligence on the part of the defendant, there should also be a finding of contributory negligence on the part of the defendant.

1. The defendant alleged that there was contributory negligence on the part of the plaintiff in the following respects:

(a)   Failing to change lanes with safety;

(b)   Failure to warn the defendant of her intention to change lanes;

(c)   Turning right in front of the defendant's path;

(d) Changing lanes in contravention of the Australian Road Rules, 2008. In this regard, the filed particulars of contributory negligence referred to reg 32, but the defendant's submissions referred to reg 148.

(e)   Failing to keep a proper lookout and failing to take care for her own safety.

1. In argument on behalf of the defendant, Mr Ryan submitted that the plaintiff had shown a complete want of care on her part, and that her culpability for the occurrence of the accident should be apportioned at 50 per cent.

1. In contrast, on behalf of the plaintiff, Dr Thornton submitted there should be no finding of contributory negligence in this case.

1. In my view, for the reasons that follow, the defendant has in fact discharged the burden of establishing contributory negligence on the part of the plaintiff in this case.

1. I accept that when changing lanes, the driver of the vehicle changing lanes must give way to the vehicle travelling in the lane into which the lane changing vehicle is moving: Australian Road Rules, reg 148.

1. In this case, although the plaintiff had appropriately looked before changing lanes, and had then started to change lanes, I consider that she should have at least looked into her rear vision mirror again before completing the manoeuvre so that if, as it happened, the defendant's vehicle was approaching her from behind without apparently reducing speed, she could have taken evasive action by discontinuing her lane changing manoeuvre in the face of the defendant's continued approach. It would have been prudent for the plaintiff to have made such a momentary check before she continued her lane change to completion as there were no other vehicles around or in front of her at that time which required her continued attention to the roadway ahead. She failed to do so, and as a result I find there was contributory negligence on her part.

1. It therefore remains to find a just and equitable apportionment of the respective culpabilities for the accident.

1. In my view the appropriate apportionment should be in the percentage ratio of 20 per cent to represent the responsibility of the plaintiff, and 80 per cent to represent the responsibility of the defendant as the defendant should bear the greater responsibility for the accident as she was not keeping a proper lookout in the immediate vicinity of her vehicle.

Disposition

1. For the reasons I have stated, the plaintiff is entitled to a verdict in her favour but with a discount for an apportionment for contributory negligence assessed at 20 per cent on her part.

Costs

1. Whilst the plaintiff is entitled to an order for costs in her favour following her success on the liability issues, given the circumstances of the splitting of the liability issues, I consider that I should defer the question of costs until the damages component of the proceedings are concluded.

Orders

1. I make the following orders:

(a) Pursuant to UCPR, r 28.2 the liability issues are to be tried separately from the damages issues;

(b)   Verdict and judgment for the plaintiff against the defendant on the issue of the negligence of the defendant;

(c)   The plaintiff's contributory negligence is assessed at 20 per cent;

(d)   The costs of the split trial are reserved;

(e)   I appoint a directions hearing for 10.00am on Friday 13 April 2012, in order to fix a timetable for the resumption of the hearing on the remaining issues;

(f)   Liberty to either party to apply on 7 days notice if further orders are required;

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Decision last updated: 05 April 2012