O'Meara v Turner; Thompson v Turner
[2021] VCC 1574
•20 October 2021
| IN THE COUNTY COURT OF VICTORIA AT Ballarat COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| General List |
Case No. CI-20-03786
CI-20-03803
| STEWART WILLIAM O’MEARA | Plaintiff |
| v | |
| MAREE MICHELE TURNER | Defendant |
-and-
| SARI-ELLEN THOMPSON | Plaintiff |
| v | |
| MAREE MICHELE TURNER | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 30, 31 August, 1, 2, 3 and 4 September (via Zoom) | |
DATE OF JUDGMENT: | 20 October 2021 | |
CASE MAY BE CITED AS: | O’Meara v Turner; Thompson v Turner | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1574 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT – NEGLIGENCE
CatchwordsTransport accident – injured pedestrians
Legislation Cited: Transport Accident Act 1986
Cases Cited: Ilievski v Zhou [2015] VSC 158; Simmonds-Thatcher v Kamari [2021] VSCA 133
Judgment: Proceedings dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Mr A C Dimsey | Fortitude Legal |
| For the Defendant | Mr P A Scanlon QC with Mr S D Martin | Solicitor to the Transport Accident Commission |
HER HONOUR:
Introduction
1On 6 April 2018 (“the said date”) at about 9.00pm, the plaintiffs, Sari-Ellen Thompson and Stewart O’Meara, crossed Doveton Street North in Ballarat in the face of oncoming traffic. Both plaintiffs were injured when struck by a vehicle driven by Michele Turner, the defendant. Neither plaintiff had any recollection of what happened to them after they left the kerb south of Little Clyde Street.
2Ms Turner simply recalls travelling north along Doveton Street North, approaching Little Clyde Street, when she saw a flash. She braked, heard a bang and her car came to a halt. She got out and saw the two pedestrians on the roadway.
3An independent witness, Heidi Gurman, was standing out the front of her house at 305 Doveton Street North when she saw the plaintiffs approaching from her left. They then went out of sight in front of a parked car. She heard a bang and a scream, and then saw the plaintiffs on the roadway.
4For the reasons that follow, I have found that the plaintiffs have not established that Ms Turner drove her car negligently and that their proceedings must be dismissed.
The trial
5The parties agreed that the likely scenario was that there would be the same outcome for each plaintiff in terms of liability.[1]
[1]Transcript (“T”) 5
6On the question of liability, both Mr O’Meara and Ms Thompson gave evidence in support of their case. They also called accident reconstruction expert, Dr Shane Richardson.
7Ms Turner gave evidence. She called an independent witness, Ms Gurman, who lived near the accident scene. She also called Associate Professor (“A/P”) Wells, an expert, who gave evidence as to Mr O’Meara’s likely blood alcohol reading at the time of the accident and the effects thereof on his behaviour.
8The Victoria Police Incident Report, including statements, photographs and sketches was also tendered.
9Quantum was agreed at a judicial mediation of this matter before the commencement of evidence.
The Accident
The scene of the accident
10It was not in dispute that the accident occurred south of the Little Clyde Street Lane, which runs to the left of Doveton Street North, Soldiers Hill.
11Doveton Street North runs north-south and is divided by a broken white line. There are dedicated parking lanes and bike lanes in either direction. There is street lighting overhead along Doveton Street North and a light at its intersection with Little Clyde Street.
12The railway lines are about 120 to 130 metres south of the accident scene.
13Appended to this Judgment are photographs taken by the police and a diagram of the positions at which the defendant’s vehicle and the plaintiffs were situated after impact. The dimensions and locations were not in issue, save that both parking lanes in the sketch were 2.1 metres wide:
· Figure 11: Photograph of collision location[2]
· Figure 12: Daytime image of the collision scene[3]
· Figure 19: Aerial image of the collision[4]
· Figure 15: Police sketch of the positions of the plaintiffs, and the defendant’s vehicle, at rest.[5]
[2] Appendix 1
[3] Appendix 2
[4] Appendix 3
[5] Appendix 4
Credibility of the witnesses
Mr O’Meara
14Mr O’Meara was an unreliable witness which, to some extent, may be explained by the head injury he suffered in this accident. It is impossible to accept his evidence that he looked to his right before crossing the road and did not see the defendant’s vehicle approaching in circumstances where I accept the headlights were operating and the vehicle would have been clearly visible.
15Further, I accept that Mr O’Meara’s belief that he was “okay“ to drive that night was a clear example of his judgment being severely impaired, when one considers A/P Wells’ evidence about Mr O’Meara’s level of alcohol consumption and likely reading at the time of the accident.[6]
[6]T319
Ms Thompson
16Ms Thompson was a credible witness. She freely conceded she had no recollection whatsoever of the accident and that she did not look before crossing the road. Further, she was candid as to her level of alcohol consumption before the accident and, in my view, did her best to tell the truth.
Ms Turner
17I found Ms Turner to be a candid, honest witness, whose evidence as to her limited recollection of the accident circumstances was untouched. As counsel for the defendant submitted, there was “not a skerrick of evidence that she was doing anything other than concentrating”.[7]
[7] T318
Ms Gurman
18Ms Gurman was truthful witness and gave evidence to the best of her recollection, although some minor details were inaccurate.
The Plaintiffs’ evidence
Ms Thompson’s background and lead-up to the accident
19Ms Thompson lives at Doveton Street North on Soldiers Hill with her mother, having lived there for the last twenty-four years. It is up over the hill towards Macarthur Street from Little Clyde Street – a walking distance of about 260 metres – a minute or so from Little Clyde Street.[8]
[8]T78
20She is presently aged fifty-one, having been forty-eight at the time of the accident. She is her mother’s carer.
21She has been in a relationship with Mr O’Meara since 2016. They had had a commitment ceremony a while ago, as they thought her mother was dying.[9]
[9]T63
22The period before the accident is relevant as to Ms Thompson’s alcohol consumption during that time.
23That day, she started working in the garden at about 9.00am. She had dinner cooking in the slow cooker, and she checked on her mother while gardening.[10] She came in from the garden at about quarter to four and put all the tools away. She organised her mother’s dinner and began relaxing.
[10]T41
24She had her first glass of red wine at about 3.00pm from a cask – a cheap one from Aldi’s. She was drinking from a 150‑millilitre glass.
25Mr O’Meara, “Stewart”, arrived at about quarter to six. They ate at about half past six/quarter to seven. She had one pork bun, and he had two.[11]
[11]T42
26They just sat around the back, discussing their day, and she suggested they go to Irish Murphy’s for a little while and see how her mother went, as she had not been left in the house for three weeks, having had an accident in the bath. Her mother was happy for them to go, as they needed some time by themselves.
27It would have been a quarter to, or ten to nine, when Ms Thompson asked her mother if it was all right if they go, and her mother told them to “bugger off” because her show was on – probably ‘Midsomer Murders’.[12]
[12]T44
28Between pouring her first glass at three, and heading off at about quarter to nine, she would have had roughly six to seven glasses of wine, spread out equally over that time. Stewart had two scotches from a bottle he brought with him. That was “his drink”, which he drinks on ice.[13]
[13]T45
Ms Thompson’s account of the accident
29They headed down Doveton Street towards the railway line, on the same side as her house. It was a nice night. Stewart was on her right-hand side at the fence line, and she was closer to the nature strip as they headed down the hill.[14]
[14]T46
30They talked about her mother, hoping she was going to be okay, and discussed the dinner. She remembered looking at Dory’s house and thinking she should still be in hospital because her lounge room light was not on.
31She told Stewart that when they got into Doveton Crescent, to be really careful as there are a lot of acorns.[15] She had raked up acorns during the afternoon. She could not remember later telling the police about acorns.[16]
[15]T46
[16]T65
32They were walking at just a normal walking pace, heading to Irish Murphy’s, wanting to get in there before they had to pay a cover charge to listen to the band. From about quarter past nine/half past nine, there would be a cover charge, depending on who was on the door. She knew the bouncers, having gone to high school with one of them, so sometimes she got leeway if she was late.[17]
[17]T46
33“Going into town”, to Irish Murphy’s, she would take the same way she would have taken that night, going down Doveton Street, across the road into Doveton Crescent which veers left, into Armstrong Street, over the bridge. She would cross Doveton Street North where she crossed that night, which was the usual place.
34She was wearing brand-new black jeans, slip-on black shoes, a dark-blue shirt with white spots on it, a black leather jacket, and was carrying a black handbag.[18]
[18] Photographs at Plaintiff, Thompson, Court Book (“PCB1”) 450-453
35She could not recall whether the streetlight at the corner of Doveton and Little Clyde Street was working that night. She walked past two little houses, and walked across Little Clyde Street, “not to the other side of the footpath, but where the nature strip part is on the road part, where the gutter is”.[19] She crossed onto “just the tiny bit on the corner part of the nature strip”. She crossed just as the gutter part starts. Before she started crossing the road, she had pebbles under her feet. It had been grass but it was down to pebbles.[20]
[19]T48
[20]T49 – Photograph at PCB1 301; Figure 13
36She did not recall anything from there, when asked about the presence of parked cars. She only recalled “getting into the intersection part there. After that, everything was blank.”[21]
[21]T49
37She would always go the same way, and cross Doveton Street North at that position, to head to a driveway south of the green roof and the silvery roof.[22] She walked this way because she did not like walking on people’s nature strips, “and you never know what’s been on there, like animal-wise”. She did not like walking, especially in winter, and that too.[23]
[22] PCB1 309; Photograph – Figure 19
[23]T50
38She remembered standing on the kerb, and then she remembered she opened her eyes, and there was a lady looking at her who said, “Don’t move, I’ve rung an ambulance”. She did not know who the woman was.[24] She did not remember anyone identifying themselves as being the driver.[25]
[24]T50
[25]T52
39Before she stepped off the footpath, she did not recall seeing anything. She only remembered the spot that she was going to cross at. She was going to cross there because she thought it was safe. She had been crossing there from when she was about ten. She used to live in Lydiard Street, and her grandparents lived in Little Clyde, and years later they lived in Little Clyde at No 7, so she would always go across the intersection, because if she went down further there is no footpath, “like it goes to dirt and then you’ve got to try and cross the road”.[26]
[26]T52
40She could not actually remember starting to cross there that night. She did not remember stepping out onto the road “or anything”. She just remembered getting to that point.[27]
[27]T52
41She thought she spoke to an ambulance driver when she opened her eyes, but she could not figure out where she was, and she thought she had had a blackout again,[28] and it dawned on her, “Oh hang on, Stewart was with me, and I said ‘Where’s Stewart’ and they said, ‘We’ve already taken him to hospital’,” and that is all that she could remember.[29]
[28]She had had blackouts since she was ten and that was why she did not have a drivers licence and drove a moped
[29]T52
Cross-examination
42She accepted the accuracy of the police diagram. She had no recollection of where she was on the roadway or indeed, where she was at all. She had no idea that she was on the road or how she got there,[30] or that she had been hit by a car.[31]
[30]T53
[31]T54
43She had a memory of walking down the road towards the railway line, and a recall of being at the gutter, on gravelly stones/nature strip. She was not on the bitumen surface of Little Clyde. She had walked over Little Clyde Street.[32]
[32]T54
44She agreed from Number 305 Doveton Street down towards the railway line, there was a bitumen/pathed walkway from the gate of the houses to the edge of Doveton Street.[33] There was a very large bitumen area that allowed access across from the third house down the driveway to the bitumen on Doveton Street.[34]
[33]T55-6, shown at PCB1 291
[34]T56
45She agreed there were many opportunities to cross Doveton Street to get on the other side of the road and then proceed to Doveton Crescent, “but it was longer”. When it was suggested it was not at all longer, she said she had always just walked that way from when she was young. She walks that way instead of walking down a footpath.[35]
[35]T57
46She remembered getting out of bed that morning, preparing the food, talking to Daryl, the crossing man, but after the accident she “did not remember, or bits and pieces”.[36]
[36]T60
47She could not say now what she was feeling at the time Ms Turner spoke to her. She did not remember saying to her - but did not deny saying – “I’m sorry for walking in front of you”.[37]
[37]T60
48She did not recall Ms Turner saying to her while she was on the ground, “I’m the lady who hit you,” as the police recorded it. She agreed this conversation would have been likely to have come from her, but she was on medication, so she did not remember.[38] The typed version of her statement to the police dated 21 April was accurate.[39]
[38]T63
[39] T62
49She agreed a standard bottle would be about 750 millilitres, and that she therefore, having had six or seven, had had a bottle of red plus two more drinks in the course of the afternoon. From there, they were going to walk to the hotel, where she would probably have had one or two more drinks.[40] She would only have had a couple of drinks as she was there to listen to the music and she would not pay the price of the alcohol there. She may have been a little affected by alcohol.[41]
[40]T67
[41]T68
50Her drinking was over quite a few hours. She did not think she was drunk. She would not have been on her moped if she had been drinking because her capacity to control it would be affected. That was why she was walking. She would not have been on the moped even after one glass. It would be too dangerous riding it after a number of glasses.[42]
[42]T69
51In her Answer to Interrogatory 9, she said in the hours before the accident, she had consumed about six glasses, or a bottle of red. She was positive she was drinking from a cask.[43]
[43]T81
52She remembered everything until she woke up on the road. She agreed that she had said to a number of doctors that she had no recollection of the event, and she literally woke up on the ground. She remembered walking from her house down the street. She has no memory of stepping from the kerb onto the road and being struck by a car. She did not know the car was driven by Michele Turner until she was told by the police.[44]
[44]T70
53She must have got herself from the footpath and onto the driving surface of the roadway. She agreed once she left the footpath and put herself on the roadway, she was exposing herself to extreme danger when there are cars using that roadway. It was right that when you make the decision, whether affected by alcohol or not, to leave the walking area of the footpath and go onto the area that is used by cars, then you place yourself at greater risk if you do not look.[45]
[45]T70
54She did not remember seeing a stationary car. She assumed that if there had been one there, it would be necessary to walk in front of it and across the parking lane to get to the bicycle lane. If she was walking in front of that car, she would have to step out into the bike lane probably to look down before crossing.[46]
[46]T71
55If there had been a parked car and her vision was obscured, she normally would perhaps walk out and look and then walk across the road. Her vision of a car coming would not have been impaired if she was past the parked car. It would have been while she was walking past it.[47]
[47]T72
56She agreed when you leave a footpath or kerbing or a nature strip and cross onto the road, you have to be very aware of the presence of cars, and particularly if you have consumed up to a bottle and a half of wine.[48]
[48]T73
57It was her feeling that the car did not have its headlights on: “I don’t see myself walking out in front of a car with headlights.” It is still her belief now. When told there was a photograph after the accident of the defendant’s car with its headlights on, she did not recall seeing anything. She could not really answer that.[49]
[49]T74
58She agreed that if there was a parked car in the position near the ‘No Standing’ sign, it would impede her view to the railway line if she stepped over where the line is where you park. Before crossing over the parking lane, and before getting to the bike lane, her vision would be impaired because of the parked car, but she would not know if the driver’s vision was.[50]
[50]T75
59She agreed she would get good vision to the railway line once she got to the bike lane, and would see a car with headlights on if she was looking, and would have stopped, and probably would have stepped back a bit, but she did not recall anything from where she was standing.[51]
[51]T76
60She agreed she was keen to avoid the cover charge so she thought she might have left home about ten to nine so she would have plenty of time.[52]
[52]T77
61She did not remember the time of the accident when told the triple-zero call was recorded at almost 9.12pm and it was suggested to her the accident clearly happened about 9.08 – 9.09pm. She agreed it would take just a minute or so to walk down from her place – 260 metres – and it could be that they left her place after 9.00pm. She thought they left about 8.45 or 8.50pm[53] – “A lot of things have been affected by memory now from the accident. It is getting harder and harder to remember a lot of things.” However, she did remember most of the day.[54]
[53] T79
[54]T82
62She agreed it was about 1.2 kilometres roughly from the accident scene to Irish Murphy’s. She supposed it would take 10 to 15 minutes to walk there. They would have got there by 9.15pm – when the cover charge started. She probably would have been irate if she had to pay to get in, and she was trying to avoid that. She was walking at her normal pace. She then said she probably would not have made it in time, but she wanted to. She agreed the way to make it on time was to walk quicker.[55]
[55]T80
Mr O’Meara’s background and lead up to the accident
63Mr O’Meara lives at Park Street, West Delacombe. He works as a vehicle restorer. He is fifty-one, and at the time of the accident was forty-seven.
64On the said date, he finished work and then went to Ms Thompson’s (“Sari’s”) house. He normally gets there by six, and he remembered she was doing pulled pork, and they had a drink. He thought he had two buns, and that she did not have one, because she “cracked it” because she had burnt them. He brought a bottle of scotch with him, which he bought on the way. Her mother was eating in her room.
65He left Sari’s house after 8.30pm, because her mum had told them to “bugger off” as her show was starting.[56]
[56]T88
66After six, and until 8.30pm, when they left, he had two or three maybe, two from what he could remember, scotches on ice. They were probably a double and he would have finished his last as they left, and probably hung onto it for a little, but he would not be sure, probably fifteen or twenty minutes.[57]
[57]T89
67He confirmed he was wearing a black jacket, stonewash jeans, t-shirt and runners that appeared in the photographs.[58]
[58] Plaintiff, O’Meara, Court Book (“PCB2”) 432-434
Mr O’Meara’s account of the accident
68They were heading towards Sturt Street, downhill towards the railway line on the same side of the road as Sari’s house. It was a nice night and really clear. He was walking on the right-hand side, with Ms Thompson to the left. He was closer to the fences and she was closer to the nature strip.[59]
[59]T90
69He remembered quite clearly, as they walked out, she had tapped on the bull bar of his van and made a joke about “Aren’t we going to drive?” And he said “No, I’m going to have a couple of drinks, a good time”.[60]
[60]T90
70When they walked down, they talked about the burnt buns and how good the pulled pork was. Sari said something about their friend Dora being in hospital. He then remembered her saying to be careful of the acorns in Doveton Crescent.[61] They then walked across Little Clyde Street, on the edge of the gutter, he remembered looking down and there were two acorns in the gutter.[62]
[61]T91
[62]T91
71He was not really affected by alcohol at all. Sari seemed fine too. He was not sure whether he had seen her drinking, she probably had only one or two while he was at her place, drinking red wine from a cask.[63]
[63]T91
72They were heading at walking pace towards Irish Murphy’s to see a live band, which normally started at 9.30pm. They probably discussed the cover charge, he couldn’t remember, but it was common knowledge, “if you get there earlier you don’t pay”.[64]
[64]T92
73They walked from probably diagonally across to the edge of the gutter, and that is where they crossed from, having gone over Little Clyde Street.[65] He was towards Sari’s house direction of the street sign.[66] He was standing to cross right on the edge of the bitumen and dirt. They would not have walked across the grass, and he can remember stepping over a lump in the gutter.[67]
[65]T92
[66]T93
[67]T94
74He did not think there were any parked cars.[68]
[68]T95
75He had walked that route many times before with Sari and they would normally cross Doveton Street exactly in the same place and they would head to the other driveway – the one to the south of the house with the silver roof:[69]
“All I can remember is stepping out - like, I remember looking in the street and there was no traffic at all, like, not a headlight to be seen, which is the usual thing for that on a Friday night anyway. I remember stepping over the gutter edge with the two acorns in it. I remember looking to the right and then I can remember seeing meself (sic) step over the white line. I’m not sure whether it was the first one or the second one.”[70]
[69]T96
[70]T97
76The first white line marks out the parking lane and the second one, the bike lane. Then he would have looked the other way and “then that’s it”:
“Yeah, well like I say, I remember obviously stepping over the white line. I remember looking down the road … To the south … Towards the railway line … and … that’s pretty much it then. I don’t remember … I remember being in the hospital, they wheeled Sari over to my left side and I held her hand.” [71]
[71]T98
77The next thing he could remember was waking up in the ambulance on the way to The Alfred. When he was awake, he remembered them saying “going by road or something but very vaguely, a short moment in the ambulance trip”.[72]
[72]T98
Cross-examination
78He has no recollection of being hit by a car.[73] He could remember walking from the kerb to the white line. He had a recall of at least three paces, getting past the parking lane. He agreed, in that time, he had time to look to his south towards Sturt Street. There was a car parked in the parking spot, further down past the ‘No Standing’ pole, probably 5 or 6 metres away – “I guess”. He agreed he had a clear vision of all of this. He had a clear vision of that and a clear recall of the area.[74]
[73]T98
[74]T99
79He agreed that the bicycle lane would be a pace-and-a-half wide and that was further out than the parked car. He would have had a perfectly clear vision to the right down the railway line and he looked to the right from there, and there was no car there – certainly no vehicle with headlights. He did not know where the car came from, he did not see it.[75] He did not know where it possibly could have come from.[76]
[75]T100
[76]T101
80He agreed he would have glanced down when he saw the white line on the road, where he was putting his feet. He was briefly looking on the road when he stepped on the white line. He did not think it was the bike lane.[77] He did not need, with his second step, to look where his feet were going because he had already looked. He was making sure there were no more acorns.[78] When he stepped into the bike lane or driver’s lane, he would have looked to the right. He glanced and saw the white line.[79]
[77]T102
[78]T103
[79]T104
81He agreed he did not drive because he was going to have some more to drink. He would be perfectly capable of driving, but he would not. In himself, he was fine, he could have comfortably driven.[80]
[80]T104
82He had been led to believe his BAC reading at hospital was .121. He could not question the reading, but did not reckon he was severely affected by alcohol when the accident happened. He would have thought to be .12, he would have had to drink more. He had not had a lot more to drink and therefore did not accept the reading. It takes more than three drinks to get to that reading, so it must be wrong. He had always been saying exactly the same thing, he thought he had two glasses.[81] He did not recall telling the police that he had had three drinks.[82]
[81]T109 – his Answers to Interrogatories
[82]T121
83He thought he was unaffected by alcohol and could make his own decisions and own judgements when walking down the street. His level that night did not impact his ability to walk, or see, or make decisions, or make judgements of distance. He agreed he was in a good position to assess what was happening on the road that night.[83]
[83] T112
84He confirmed, when he looked to the right, there was no car there. He did not see a car when he looked, he agreed, with the perfect opportunity to see.[84]
[84]T112
85He guessed there was a very high risk of injury and danger for a pedestrian moving from a footpath, although he has never been injured before. He did not have regard to the fact a car might be coming because the road was clear. He looked, there was no traffic and there were no lights.[85]
[85] T113
86There was no possibility his assessment of what happened that night may have been affected by alcohol. He agreed he was travelling swimmingly well prior to the accident in terms of walking, talking, running, looking, seeing and assessing. He was travelling beautifully and there was nothing that he thought that he failed to do that in any way was a cause of the accident.[86]
[86] T113
87He agreed he had had the opportunity to think about it now, and had many times – “I was there and I obviously didn’t see the car.”[87] He agreed that was a decent part of the puzzle. He disagreed he would not have had much of a look. Not having its headlights on “was the only sensible conclusion in [his] head”.[88]
[87]T113
[88]T114
88All the responsibility was with Ms Turner because she was driver, but he then agreed roads were for cars and she did not drive on the footpath. He agreed he went from the footpath, where he was entitled to be, to the road, where she was entitled to be. He agreed that because he was crossing the road, he should have given way to her and he failed to do that clearly.[89]
[89]T114
89He ultimately agreed it might have been 8.40pm or 8.50pm when they left Sari’s house.[90] They were not walking arm in arm, but they were side by side and she was right next to him, going at the same speed.[91] When they got to the road, they were still walking at a relaxed pace.[92]
[90]T119
[91]T124
[92]T125
90He was unsure in which direction he remembered last looking.[93] He then said, “you do normally … walk out to the road, you look to the right because that’s the oncoming lane, and then as you go out on to the road you look to the left to make sure there’s nothing coming the other way”.[94]
[93]T126
[94]T127
91He did look “definitely” – “It’s like a bad dream”. He could see an empty street all the way down to the railway line and the roundabout and she was not there. There were no cars there.[95]
[95]T131
92He did not disagree with the policeman’s measurements as to the width of the parking lane and the bike lane.[96]
[96]T129
Re-examination
93He confirmed he thought he was capable of driving, but he would not, because it is not legal. He has his own breathalyser at home and that was why he had never had an offence.[97]
[97]T131
The Defendant’s evidence
Ms Turner’s background and lead-up to the accident
94At the time of the accident, she was sixty-one, having been born in October 1956. She has been a licensed driver for about twenty-one years. She was driving her current car, a Nissan Murano, registration UWB 448.
95She lives in Invermay and works at the UFS Medical Centre (“UFS”) at 202 Doveton Street. It takes about six or seven minutes to get from her house to UFS, where she still works as the practice manager.[98] Her mobile telephone number is the same as it was on the said date.[99]
[98] T232
[99] T232-3
96She is reminded of when her car has to be serviced by the sticker on her window. It had been serviced maybe three or four months before the accident. She agreed it “was in good nick” on the day of the accident.[100]
[100] T233
97She had worked at UFS that day and usually left work about 6.30pm. She got a call from a new doctor who needed help getting her car out of the carpark, where it had been locked in. She went back to UFS, met the doctor out the front, showed her how to get down to the car and shut the gate after her car, and went back to her own car.
Ms Turner’s account of the accident
98She thought she left UFS at about 8.50pm to 9.00pm.[101] She did a U‑turn in Doveton Street, heading back in a northerly direction, and went over the railway line. The accident happened about 100 metres or so after the railway line.
[101] T234
99She always brakes at the railway line, so from there, she may be doing 30 to 35 kilometres per hour, but she estimated her speed at the time of the accident would have been 50 to 55 kilometres:
“I saw no-one but I got a sort of a flash in the corner of my eye and I slammed on the brakes. I heard a bang, then my windscreen smashed. I had no idea what had happened. Got straight out of the car, my lights were on, engine on. I got out before I realised what, and when and then I saw the pedestrians, yes.”[102]
[102] T235
100There were parked cars on the left-hand side of Doveton Street North. The cars were parked, there was a break, which was Little Clyde Street, and it was right at that road of Little Clyde Street on Doveton Street that the accident happened.[103]
[103] T235
101She certainly did hop out of her car after the accident:
“I didn’t even realise – I left the lights on, the door open and my engine running. I got out of the car and then I realised what had happened. There was a pedestrian in the incoming lane on the other side of the road in the middle, and then there was a pedestrian who was about a third in the road on my northbound traffic lane … .”[104]
[104] T235-236
102She certainly braked; she slammed on the brakes:
“I did – actually, I did say that I slammed on the brakes but I don’t necessarily recall swerving but yeah, I – it was just an instinctive thing that I slammed on the brakes so obviously I did swerve slightly to the right, yes.
…
Because my car was over the intersection, the half line of the intersection into the other lane.”[105]
[105] T236
103She did speak to one of the pedestrians. There was no traffic in front of her or traffic coming on the incoming lane. Fortunately, a car did stop. Someone did say it was a nurse, which was great, and that person was standing in front of the pedestrian that was lying in the centre of the road.[106]
[106] T236
104She went over to the pedestrian and told her she was the driver of the vehicle. The person lying in the centre of the road apologised for walking in front of her vehicle, and Ms Turner said something to her to the effect of, “‘As long as you’re okay, that’s the main thing’”.[107]
[107] T236
105The woman who was the nurse did not identify themselves to her as a nurse. There was a lady who must have been in one of the couple of houses on Doveton Street, and she asked Ms Turner for her mobile phone, which she told her was in a bag in her car and she got it out.[108]
[108]T237
106Ms Turner confirmed the number that had called triple zero at 21:11:59 was her mobile number.[109] She told the lady who was near her car where the phone was. It was in her bag in the car:
“So, it was pretty much immediately after the accident when I got out and went over to the pedestrian because I turned around and she was going into my car to get my phone.”[110]
[109] T237
[110] T238
107Her bag was either on the floor of the car or on the seat; she was not sure where she had put it.[111]
[111] T238
Cross-examination
108She confirmed she saw the flash out of the corner of her left eye, and she saw no one. She agreed it could have been a dog, a pony, a kid on a skateboard – she had no idea what it was.[112] She agreed then she just piled on her brakes. She heard a bang and then her windscreen smashed, and her car came to a rest.[113]
[112] T238
[113] T239
109She would not have a clue about calculations, about her car stopping, or colliding with the pedestrians. She definitely does not have a perception of careering on for a long distance. She came to a stop very clearly because she agreed she had applied her brakes with considerable force. She could not say anything about the lighting.[114]
[114] T239
110She comes and goes every day up Doveton Street, hundreds of times over ten years. She was then based at UFS and she frequently travels that road in the dark.[115]
[115] T240
111She did not know if the yellow lines on the road in the police photograph accorded with her recollection of where pedestrians came to rest. She knew the gentleman was on the road a bit and the lady was in the middle of the road, so that could be correct. She could not say whether the light pole was functioning that night.[116]
[116] T240
112She definitely had her headlights on, and they were functioning properly. She maintains her car as required and there were no problems with the functioning of her headlights, or anything like that. She “did not have a clue” about ABS braking.[117]
[117] T242
113Until the flash and the brake, she had no opportunity, and there was no time for her to sound the horn and flash the lights. There was a flash of something and then she slammed on the brakes – “that was exactly right”. She agreed it was all in less than a second.[118]
[118] T242
114She agreed the damage to her vehicle shown in the photographs was not there before the accident.[119]
[119] Photograph at PCB2 448
115She agreed that she assumed her vehicle moved forward some distance after the impact.[120] She was unable to comment on the proposition that if she was travelling 50 to 55 kilometres and slammed on the brakes, at the time she hit the plaintiffs she would have been going between 29 and 33 kilometres, and then went another five and a half metres before her car comes to a complete stop.[121]
[120] T244
[121] T244
116She could not comment on the street lighting because she could not recall it. There was definitely a car parked there before Little Clyde Street. It was dry.[122]
[122] T245
117There was not a lot of traffic because there was no traffic in front of her or coming the other way. She would agree “visibility good, dark”, if that what was reported.[123]
[123] T246
118She agreed the likelihood was that the parked car that was parked was the little silver car on the left in the photograph, the little Toyota Echo, just in front of the stop sign, and beyond that was Little Clyde Street. It would be likely the Emergency Vehicle was parked in front of the house south of the lane.[124]
[124] T248
119She had no idea where the pedestrians came from, did not even know they were pedestrians. She spoke to the female pedestrian, but did not tell her not to move or that she had called an ambulance. She did not speak to the gentleman because he had someone kneeling over him.[125]
[125] T248
120Her phone was used to call triple zero. Somebody else did it for her. The lady asked her where her mobile phone was. She told her it was in her bag. She did not know the lady made the call, that was as far as the conversation went. She later got the phone back after the call.[126]
[126] T249
121She was shown by counsel where it was said the plaintiffs had come from onto the road, and the nature strip with a bit of gravel on it on the corner of the south of Clyde Street, and that they then headed to the driveway on the other side of the road.
122When it was suggested to her that they would have been visible to her for about four seconds, she said she did not see them at all, so that is not the case. She could not say anything because she just did not see them. “I saw a flash in the eye, slammed on the brakes and that was it.”[127]
[127] T250
123She denied she did not see them before the crash and the bang because she was not keeping a proper lookout. “I was concentrating on the road, so yeah.”[128] When it was suggested they did not spring out of the ground, she said “I don’t know. I didn’t see them, I saw the flash and I slammed on my brakes. Perhaps the flash was the lady going across my car, I don’t know. I have no idea. I didn’t see them, I can’t tell you anything more than that.”[129]
[128] T250
[129] T251
124She agreed her evidence she had her headlights on was based on what she normally does, turning her headlights on at night. “Definitely not” was it a possibility she might not have turned them on. The lights are on in the photograph of her car because the policeman turned them off, and her ignition.[130]
[130] T252
125She did not rely on the photographs to say the headlights were on; she knew they were on.[131] They were definitely on, because she remembered turning around and looking at the lady going to her car for her phone when she asked her for it.[132]
[131] T253 – Photograph at PCB1 443 – at the scene after the accident
[132] T254
Evidence of the independent witness
126Ms Gurman lives at 301 Doveton Street North, Soldiers Hill, Ballarat.
127At the time of the accident, she was employed by StarTrack as a courier driver. She is currently employed in disability.[133] She has held a drivers licence for forty years.
[133]T284
128She witnessed the collision between a car and some pedestrians outside her house on the said date.
129Immediately prior to the collision, she was waiting on the nature strip close to the road in front of her house to give her son a key. She had come out her gate, directly in front of her house. She was on the grass, right on the edge of the road. There was a stationary car to her left.[134]
[134]T287
130Immediately before the collision, she was looking to the north side. She got out of the front yard and turned to the left and looked up the road to look out for her son to give him the key.[135]
[135]T287
131While standing there, waiting for him to arrive, she was looking in a northerly direction. It was probably getting dark, about 8.30pm, 20 to 9 or something. She could hear people talking, “100 per cent”.[136] She saw them coming down the alley way, and she thought he was first and she was behind. He was on her right. When she first saw them, they were directly coming out of the laneway and heading for the road – Little Clyde Street. They were side by side, and talking to each other, and quite close. The male was closer to Ms Gurman. The pedestrians were heading straight ahead, leading to the road, coming from the mouth of Little Clyde Street (easterly).[137]
[136]T287
[137]T288
132They were maybe four steps in front of the parked car (2-3 metres) when they walked out of Little Clyde Street. Next:
“They then went in front of the car and I instantly heard a big kathump and then I knew what had happened but I didn’t see them get hit because they were in front of the car. So it was like they just walked out – to me it didn’t seem like they stopped, they just kept talking to each other and I feel like they were looking at each other talking and just walked out on to the road because the car was blocking the view and I didn’t see them get hit, I just heard it get hit.”[138]
[138]T290
133She could not remember seeing the car before the noise, but probably she did, because she was waiting on the footpath. She probably would have heard it, and then it went past her, and then it hit, “but like honest, I can’t say I looked at the car, no, because I was looking at the wrong direction.”[139]
[139]T291
134After she heard the noise, she ran to the front of the lady’s car and saw the gentleman and lady on the ground. She thought she just spoke to the lady. She got out quite quickly from her car. They noticed that the man was not making much noise, and the lady was making a bit of noise. She thought the lady driver went to the guy, and she went around and had a look at the lady. By then, another car came past, who Ms Gurman thought was some sort of nurse or something, and then she took over and did what she had to do. Her son then arrived.[140]
[140]T291
135She did not have any conversation with either of the pedestrians. She thought the police asked a few questions; not many though. She did not think she spoke to the ambulance. She could not recall any other car other than the parked car.[141]
[141]T292
Cross-examination
136When she first saw the pedestrians, they were maybe four steps before the road, having come out of Little Clyde Street. She saw them just past the fence, so it seemed to her that they did not come down Doveton and get on the road and just come out. They were just past the fence-line of the house with the red roof.[142] She still thought they had come out of Little Clyde. She did not believe they would come down Doveton, cross there and cross exactly where they were in front of that car. If you were coming down Doveton and went onto the road, you would go before the car, but they got behind the car.[143]
[142]T293
[143]T294
137She confirmed the plaintiffs were ambling along and chatting. There were no signs of hurrying or anything like that at all. She thought the streetlights were operating, and there was not much traffic around. She did not see the bang, as her view was obstructed by the car.[144]
[144]T294
138She was standing on the edge of the front lawn, right in the gutter. She agreed there was a little concrete path that went through the nature strip directly to the kerb at her house, and that was where she walked on, waiting for her son.[145]
[145]T295
139There is a ‘No Standing’ area in front of her house. She thought the parked car was closer to the street sign pole. She felt it was in the ‘No Standing’ zone.[146]
[146]T296
140She stayed out the front for maybe 25 minutes. The car in the ‘No Standing’ zone did not drive away.[147]
[147]T297
141She was taken to her statement to the RACV investigator on 6 July 2018, three months after the accident. She agreed her memory would have been better then. She confirmed the plaintiffs were talking close to each other, and she felt they were not concentrating, and she did not see the car hit them. She only heard them. She could not remember signing a statement for the police.[148]
[148]T298
142She agreed that in the RACV statement, the parked car was not in the ‘No Standing’ area at the front of her house, in front of 303. That was likely to be more accurate closer to the event.[149]
[149]T300
143She agreed with the policeman’s observation that “there were no real obstructions, street lighting but poor quality, road was dry, traffic light, nil interference, visibility good”.[150]
[150]T301
144She was shown the photograph of the parked car, which she thought was red, but it could have been silver. That was the car obscuring her view.[151] She did remember the driver of the car handing her phone, and she made a phone call.[152]
[151]T302
[152]T303
145There was no re‑examination.
146Ms Gurman completed an RACV insurance questionnaire on 6 July 2018 as follows - She saw the accident. She thought the pedestrians were responsible because they were talking close to each other, and she felt they were not concentrating. She did not see the car hit them, and only heard it.
147She walked out onto the footpath and saw the two pedestrians at the corner walking towards it. She then heard a loud thump, thump, and then she ran in front of the car parked on the left side of the road. That car did obstruct – construct – vision of the two people.
148The car responsible she felt was only travelling maybe 50 kilometres per hour. She then went to aid the injured, and she called triple zero.
149On her diagram, she placed the parked car in front of the house to her left.
Expert evidence
Expert witnesses – the Plaintiffs
Dr Shane Richardson
150Dr Richardson, principal of Delta‑V Experts, gave viva voce evidence. He holds a Bachelor of Mechanical Engineering, a Master of Science, and has done a PhD at Monash University. He is a fellow of various engineers’ societies. He has been involved in conducting and supervising and witnessing multiple crashes. He has been attached to the Victoria Police Accident Investigation Section, has run crash investigation courses, and was requested by the plaintiffs’ solicitors to prepare a report as to the circumstances of the accident.
151While Dr Richardson’s report was initially objected to on a number of grounds,[153] counsel for the defendant ultimately relied on Dr Richardson’s conclusion, based on all of the relevant facts.
[153] T28
152Although providing assistance to the Court on a range of matters, including an explanation of perception/reaction times, vehicle and pedestrian speeds, Dr Richardson was somewhat of an advocate for the plaintiffs and was reluctant to make concessions when asked to adjust his findings to take into account the correct point to which the plaintiffs were heading in Doveton Street.
153Dr Richardson did not interview the plaintiffs. He was provided with the police report, photographs and sketch, the ambulance report and statements from Ms Turner and the independent witness, Ms Gurman.
154He attended the accident scene on 4 June 2020, where he took a series of photographs of the accident scene stitched together to create a 3D cloud, which was not part of the evidence.[154] He put various indicia into that a program.[155] He also videoed the accident scene on the night of 15 June 2020.
[154] T325
[155]T146
155Dr Richardson described the type of impact in this accident as a “wrap” – where the body wraps around the bonnet or the vehicle. This was used to estimate the throw distance – to work out the likely point of impact and the speed at the time of impact.[156]
[156] T160
156He based his calculations on the plaintiffs having travelled from the southern edge of the laneway and heading in a southerly direction.[157] He initially estimated that they had walked 9.2 metres diagonally across Doveton Street North from the moment they were completely unobscured by any parked vehicles along the northbound traffic lane to the point of impact.[158]
[157] Figure 35
[158] Figure 34
1579.2 metres was based on an assumption the plaintiffs had started walking in Little Clyde Street, they have headed to the average of the point of impact based on those ranges of where the point of impact could be. He had picked the middle of possible ranges of point of impact, gone south from Little Clyde Street and the plaintiffs would be beyond the bike lane or in the bike lane to the point of impact for 9.2 metres.[159]
[159]T162
1589.2 metres is from the western line of the bike lane to the estimated middle of the road, which was the best information Dr Richardson had at this time about where the point of impact was.[160]
[160]T163
159If the plaintiffs had walked directly in front of the car parked just south of the ‘No Standing’ sign, they would have walked 1.1 metres across the bike lane and halfway into the northbound lane – they would have walked about 3 metres, not 9.2 metres onto the roadway.[161]
[161]T163
160Dr Richardson was then taken to his supplementary report, having been told that the plaintiffs were crossing to the northern edge of the driveway of 308 Doveton Street. If they were crossing to that point, they would be on the road a shorter distance, and would be on the road for less time, and would be visible, potentially, for less time. It shortened the throw distances with respect to each plaintiff.[162]
[162]T164
161He thought the defendant’s car travelled 5.5 metres after impact and came to a complete stop, and the plaintiffs were thrown further on. He thought the impact speed would have been between 29 and 33 kilometres an hour.[163]
[163]T170, T173
162He gave a range of perception to impact timeframes from the 15 per cent to 85 per cent probability, because that took into account a whole range of factors. The average of drivers that are out there could react as fast as 1.1 seconds or as slow as 2.4 seconds. The defendant would likely have had a perception response time in that range. Together with the time taken for her braking to impact of between .059 to 1.23 seconds, the time from her first perception of the plaintiffs to impact would be 1.69 seconds to 3.63 seconds.[164]
[164] T175
163“Assuming” the plaintiffs were visible for 4 seconds, and the defendant took the maximum time to react of 3.63 seconds, the defendant reacts quicker and stops much sooner. She would not have hit the plaintiffs.[165]
[165] T180
164Just on the diagrams and the estimated point of impact, they do not hit, or they hit, or the collision does not occur, because the defendant’s vehicle travels 5.5 metres post impact – “You bring it back 6 metres, because they have been able to be brought back 6 metres, and the crash does not happen.”[166]
[166]T178
165At maximum perception and reaction, there would not have been an accident.[167] The defendant should have had reaction braking times between 3.63 and 1.69 seconds, either of which would have meant the defendant would not have hit the plaintiffs.[168]
[167]T179
[168]T179
Cross-examination
166The correct crossing point – to Number 308 Doveton Street – was addressed by counsel for the defendant. Instead of 9.2 metres which the plaintiffs were visible outside or from the bike lane to the point of impact – it was 3.9 metres.[169]
[169]T195
167Substituting 3.9 metres for 9.2 metres – the reaction time was 2.4 seconds – not 4 or more. If the plaintiffs travelled 3.9 metres and they were walking at 1.6 metres per second, they would be visible to the driver for 2.4 seconds.[170] 3.9 metres would be the distance from which they were visible outside or from the bike lane.[171]
[170]T194, T207
[171]T194
168Travelling the 3.9 metres to the point of impact from the western part of the bike lane at 1.6 metres per second (5.5 kilometres per hour), there would be 2.4 seconds where they could be visible to the defendant’s vehicle that was travelling in a northerly direction along Doveton Street North at 50 to 55 kilometres per hour.[172]
[172] T198
169It takes pedestrians travelling at 2 metres per second to travel 3.9 metres – distance divided by velocity 1.95 seconds. If that was the case, he agreed that the defendant had no hope of missing them. He accepted, just on reaction time, in fact, she braked and swerved. She must have braked before impact based on where he positioned her.[173]
[173]T199
170Dr Richardson agreed that it was still possible to strike the pedestrians if the defendant reacted in the permissible range.[174]
[174]T200
1712.4 seconds is at the 85th percentile.[175] When counsel suggested the defendant had reacted within an acceptable time based on the studies, Dr Richardson agreed the defendant had reacted in that window. He “really did not want to quantify what it is because [I] don’t think that’s my job”. He also agreed the defendant had managed to get her foot to the brake and slow the vehicle and travel a distance before impact, so her reaction time must have been under 2.4 seconds.[176]
[175]T208
[176]T209
172Even if the defendant had not reacted in the time she should have reacted, and she hit the plaintiffs, she would still be in a reasonable range of a person reacting. Hitting them at a lower speed means she has had to brake and swerve, which shows that her reaction is a reasonable one in the circumstances.[177]
[177] T209
173If the plaintiffs had walked straight across the road, they would have travelled the 1.1 metres of the bike lane, plus half of the northbound lane, meaning they had travelled 1.76 metres.[178]
[178]T189
174In re‑examination, Dr Richardson was reminded he had also given evidence that he accepted there was no vehicle parked in the area between the street sign and the ‘No Standing’ sign, and the Toyota Echo was parked nearby. He was asked the width of the parking lane, which he confirmed was 2.1 metres, and was asked how much extra time it took the plaintiffs to cross over that lane and to factor into that what the total distance was the plaintiffs were on the road and the time visible prior to the point of collision.
175As Dr Richardson had not given that evidence in the hearing, I did not permit re-examination about this issue. There was no need therefore for counsel for the defendant to raise this issue with him in cross-examination. Dr Richardson’s opinion was based on the distance/time the plaintiffs were visible on the roadway from the bicycle lane.[179]
[179]T213
Evidence of Associate Professor David Wells – Defendant’s expert
176A/P Wells is a legally qualified medical practitioner and a Fellow of the Royal Australian College of General Practitioners and Foundation Fellow of the Royal Australian College of Pathologists. He has been Head of Clinical Forensic Medicine for twenty years and Associate Professor at the Department of Forensic Medicine at Monash.
177He has extensive experience in the assessment of alcohol and its effect on individuals, and has been giving evidence in relation to this topic over many years.[180] At the request of the defendant’s solicitor, he prepared a report dated 10 August 2021.
[180]T258
178He gave objective, helpful evidence, which I accept.
179His opinions were based on the following:
· the blood alcohol analysis undertaken on 6 April 2018 of Mr O’Meara
· ambulance sheets of 7 April 2018
· medical report of Dr Linda Danvers
· Police Incident Report
· a series of statements in a circumstance report
· Court documents, including Answers to Interrogatories.
180He assumed Mr O’Meara was a pedestrian who was struck between 9.00 and 9.15pm on the said date, and that he had consumed two or three drinks of whisky which he had described as being approximately doubles. Drinking commenced at 6.00pm, and there was no record of when drinking ceased. A sample of blood taken at 10.20pm on the said date returned an analysis of blood-alcohol concentration at 0.121. Further, the plaintiff is 177 centimetres’ tall and weighed 69 kilograms.[181]
[181]T259
181He was asked to assume the plaintiff ceased drinking between 8.30 and 8.45pm.[182] He was asked to address was what was the likely blood-alcohol concentration at the time of the accident. He described the physiology and metabolism of alcohol, and the fact that the rate of absorption varied between individuals and could be affected by matters such as food.
[182]T260
182The peak blood-alcohol concentration usually occurs around 30 minutes, and up to possibly 120 minutes, after drinking, after which the alcohol is eliminated by metabolism in the liver at a rate of between 0.01 and 0.02 per cent per hour. This rate of metabolism varies between individuals, and may be higher in what could be called “seasoned drinkers”.
183For the vast majority of people, the elimination rate is around 0.01 to 0.02 per cent, but in people who have a history of heavy consumption of alcohol, it might be as high as 0.025 per cent per hour. For the purpose of his report, he assumed that by the time of the blood test at 10.20pm, all of the ingested alcohol had been absorbed.
184He explained a read-back calculation using the metabolic rate of 0.01 to 0.02 per hour. In the one-and-a-quarter hours between the collision and the sample, Mr O’Meara would have eliminated blood alcohol equivalent to a fall in blood-alcohol concentration of between 0.01 and 0.025 per cent. This is then added to the measured figure, which gives a total amount of alcohol in the body, both absorbed and unabsorbed, at the time of the collision, equivalent to a blood-alcohol concentration of 0.132 up to 0.145. The actual blood-alcohol concentration at the time of the accident may have been lower than this, if there was still an amount of alcohol unabsorbed in the stomach which had not yet contributed to the blood-alcohol concentration. If most of the alcohol was consumed in the minutes before the accident, then the blood-alcohol concentration at the time thereof would be lower than the range calculated above.[183]
[183]T261
185The read-back calculation was affected by the time it was said Mr O’Meara ceased drinking.
186If it was determined there had been steady drinking throughout, then there might be a slightly lower blood-alcohol concentration at the time of the accident, as there was still some unabsorbed alcohol sitting in the stomach that gets absorbed after the collision. If there has been very light drinking in the first hour, then heavy drinking, much larger consumption just towards the end of it, then that could produce a much lower blood-alcohol concentration, because most of it is sitting unabsorbed still in the stomach.[184]
[184]T262
187The standard number of drinks of alcohol to get ultimately to a reading of 0.121 after 10.00pm on this night, allowing for the absorption rate, was somewhere between five and ten standard doubles over that period. That is when you take the figure of 0.121 and then apply an absorption rate of 0.01 to 0.02 per hour.
188The impact of twenty standard drinks as opposed to ten is quite a dramatic difference in terms of its effect on reaction time, tracking, attention, et cetera. Secondly, there are individual variations, so if a person is a very rare consumer of alcohol, it is likely to have a greater impact on their general bodily responses than on someone who is a regular drinker.
189While at 0.1 the untrained observer may not see manifest signs of impairment, for example slurred speech or staggering, to some degree more or less there will be a significant adverse effect on things like attention, divided attention, doing two things at once, not complex things, reaction time and ability to track moving objects, visual function and a range of other activities.[185]
[185]T264
190He explained the variables under the heading “Effects of alcohol” in his report, including reaction times, tracking, sustained attention, divided attention, psychomotor coordination, and vision. He confirmed the visual effects are most marked for moving objects. There are a whole lot of interactions now occurring at these higher levels of function.[186]
[186]T269
191In terms of perception, the studies would suggest that the impacts do not occur until higher levels, and there may be a fair degree of tolerance to this in experienced drinkers. He then agreed that the additional information about the last drink altered the 0.132 to 0.145 result.[187] That level adversely impacts upon the range of cognitive and motor skills.[188]
[187]T269
[188]T270
Cross-examination
192If Mr O’Meara had his last double scotch between 8.25 and 8.45, A/P Wells thought it certainly raised the possibility that some of that last drink may have been sitting unabsorbed in his stomach at the time of the accident.[189]
[189]T272
193“Hypothesising a little bit, but to be absolutely fair”, he thought one could possibly say that Mr O’Meara’s blood-alcohol concentration at the time of the accident was around 0.1. It was hard to see it being significantly less than that on any of the suggested scenarios.[190]
[190]T273
194He confirmed that the plaintiff had had between five and ten doubles.[191]
[191]T275
195He agreed that a significant number of countries feel 0.08 is appropriate.[192]
[192]T277
196He confirmed that a number of variables are relevant in a pedestrian collision, and he could not say that about the contribution of alcohol in this case. It was fair to say on one hand, zero blood alcohol might be associated with someone walking onto a road without taking due care. On the other hand, an alcohol level in the range of 0.01‑plus is inevitably associated with a range of impaired skills that one does require to safely negotiate obstacles or roadways.[193]
[193]T279
Documentary evidence – Interrogatories
197The defendant, in answer to the plaintiffs’ Interrogatories, described the weather at the time of the accident as fine and dry. At the time of the accident, she was travelling at approximately 50 to 55 kilometres per hour.
198She described the accident as follows:
“My vehicle had been parked at my place of employment at 202 Doveton Street North, on the southbound side of the road. I completed a U‑turn to commence driving my vehicle. I was driving my vehicle in a northerly direction along the road in the only northbound lane. I slowed my vehicle as it approached the railway line before continuing along the road. There were vehicles parked on the left hand side of the road. I saw a flash of something to my left in the corner of my eye and I immediately slammed on the brakes of my vehicle, but had no opportunity to avoid the transport accident. There was a noise at the front of my vehicle and my front windscreen then shattered.
...
Save that I saw a flash of something to my left in the corner of my eye and immediately slammed on the brakes of my vehicle, I otherwise did not observe the plaintiff.”
199Immediately before the accident, she did not steer her vehicle in any direction. She had immediately slammed on the brakes, and it had come to a halt without changing direction.
200In the 10 seconds prior to the accident, she was looking at the road ahead of her vehicle, and did not observe any persons standing on or near the roadway.
201Ms Thompson was asked about her alcohol consumption prior to the accident. In the period from 3.00pm until 8.30pm, she consumed approximately six glasses or a bottle of red wine.[194]
[194] Answer to Interrogatory Number 9
Tripe Zero
202A chronology report from ESTA 000 on Friday, 6 April 2018 at 21:11:59 at 301 Doveton Street North, Soldiers Hill, set out a call was made by Michele Turner listing her address. It was noted the event type was a “traffic accident: high mechanism vehicle v pedestrian”.
Victoria Police Incident Report
203Leading Senior Constable David Morton attended the accident scene and completed a written report, of which there was a typed transcript and also diagrams.
204The first page of his handwritten notes set out as follows:
“-Ambo said ped’s [pedestrians] affected by alcohol
- Ambo job time 2112
- Ambo case no. 11134.”
205The next page read:
“T20180006568
6/4/2018
2117
Michelle Turner,
[Address]
[Date of birth]
[Defendant’s car number plates]
Nissan SUV
[Defendant’s licence number]
Ph: [#### ### ###]
- Left medical centre to help a doctor with alarm
- TN [travel north]
- Came from L side in front of me
- Tried to swerve but the lady made a mad dash to get across
- I wasn’t speeding I only just came over the railway line I might have been doing 50
- In my lane
- [cross-out] vaguely I saw them but they were in dark clothing
Ped Stewart O’M[e]ara
[Date of birth]
[Address]
Broken knee cap, pelvis, skull
Spoke to by phone 19/4
Both peds in black
- I saw them like at the last minute
- Asked where they were she thinks at C/way [carriageway] side of bicycle lane female
was in front of him
Ped Sari-Ellen Thompson
[Date of birth]
[Address]
Broken ankle, cracked pelvis, bruising.”
206Page 3 page read:
“Little Clyde Street
No standing zone
1 x legally parked vehicle
No real obstructions
Street lighting but poor quality
R/D T/L NI V/GD [road dry, traffic light, nil interference, visibility good dark].”
207Page 4 read:
“Front of car stopped at start of Little Clyde St
Little Clyde
3.2 [first body] 5.6 [second body]
0.9 [front of car]
0.3 [back of car]
3.1, 1.1, 3.3, 3.2, 1.9, 21 [measurements at bottom re lanes].”
208Page 5 read:
“[nb: redacted in O’Meara’s version]
- Explained PIN [penalty infringement notice]
- S/S [she said] I don’t understand how I’m supposed to get across the road
- I/S [I said] when a car isn’t coming
- S/S I don’t think it was
- I/S Unfortunately the reality is that the car was there
- S/S But I don’t think the lights were on
- I/S You said you don’t remember the code 12 [collision]
- S/S I’ve been walking all my life I wouldn’t walk in front of a car.”
209Page 6 read:
“[nb: redacted in Thompson’s version]
21/4
Stewart
- Remember clearly up to x [crossing] the road
- Sari’s place earlier
- Going to Irish Murphy’s about 8:45
- Walked down Doveton from Sari’s place near the school
- To the laneway on the right side little Dodds or what is there, then crossed to go to the other side because then we normally go to Doveton Crescent, remember stepping over a couple of acorns then don’t remember anything til waking up in hospital
- I don’t think I saw the car at all
- I had 3 scotches since 6 o’clock til that point
Attended Park St I/V [interview] of same.”
210Page 7 read:
“[nb: redacted in O’Meara’s version]
21/4
Sari
- Bruising to legs bad
- Fractured left ankle, fractured pelvis, cuts to head
- Don’t remember code 12 [collision] don’t remember seeing a car or headlights
- Woke up lady looking over her saying don’t move I’ve rung for an ambo. I’m the lady who hit her.
- I made tea for mum and Stewart
- Going to Irish Murphy’s
- Told Stewart to be careful of the acorns as I had raked them up that’s all I remember.”
Analysis of the evidence
211I am satisfied of the following matters which I think were non-contentious:
(a) the accident occurred in Doveton Street North, just south of Little Clyde Street lane;
(b) the accident occurred while the plaintiffs were in the process of crossing the road from near the gutter at the front of the red-roofed house nearest the lane, diagonally to the driveway at 308 Doveton Street;
(c) they had passed the bike lane and had not yet reached the centre line when the accident occurred;
(d) the defendant was travelling in a northly direction at about 50 to 55 kilometres per hour;
(e) there was a parked car near the ‘No Standing’ sign south of Little Clyde Street;
(f) the impact resulted in the plaintiffs being thrown in the vicinity of the area marked in yellow on the police diagram/or somewhat south thereof;
(g) the defendant braked and attempted to swerve before coming to a stop;
(h) clearly the plaintiffs were not looking and should have been. It was inescapable that they were not sufficiently careful.[195]
[195]T336
212In relation to the disputed issues, I am satisfied of the following:
(a) the accident occurred soon after 9.00pm based on the time of the triple zero call;
(b) the plaintiffs walked onto Doveton Street in the presence of oncoming traffic;
(c) the plaintiffs were first visible to the defendant when they entered the bike lane;
(d) the plaintiffs had travelled 3.9 metres onto the roadway at the time of the collision;
(e) the headlights were operating on the defendant’s vehicle;
(f) the defendant would have had 2.4 seconds to react to their presence;
(g) there was no warning whatsoever that the plaintiffs intended to cross the road;
(h) the defendant had no opportunity to avoid the collision or the level of impact.
Failing to keep a proper lookout
213The only allegation of negligence made against Ms Turner as advanced by counsel in closing submissions was that she failed to keep a proper lookout.
214Counsel for the plaintiffs submitted the failure to see the plaintiffs was only explicable by failing to keep a proper lookout, as the defendant had no excuse in this case.[196]
[196]T323
215It was submitted the scenario relied on by the defendant of a perception time of 2.4 seconds was flawed, because it did not allow for the visibility of the plaintiffs for a period of time while they were moving across the parking lane – a width of 2.1 metres, which would make them visible for a longer time.
216However, Dr Richardson’s analysis was always based on the distance the plaintiffs walked diagonally across Doveton Street North from the moment they were completely unobscured by any parked vehicle to the point of impact. Accordingly, there was no basis for adding to the 3.9 metres the additional 2.1 metres the plaintiffs walked to cross the parking lane.[197]
[197]T329
217I therefore do not have to consider any argument that the accident would have been avoided if the defendant had seen the plaintiffs and begun braking within 4 seconds.[198]
[198]T333; Simmonds-Thatcher v Kamari [2021] VSCA 133
218Counsel for the defendant submitted there is no suggestion of anything that would have alerted the defendant to the possibility of pedestrians emerging from the laneway, and in those circumstances, there could be no breach of duty.[199]
[199]T307
219On the basis of Dr Richardson’s evidence, it was submitted that the defendant’s driving was nothing other than perfectly appropriate.[200] The perception time became 2.4 seconds with the 3.9 metres from the bike lane, and it was “a mighty effort for the defendant to stop, let alone swerve, particularly where the plaintiffs were wearing dark clothing.”[201]
[200]T308
[201]T311
220Heading straight out from the footpath, consistent with Ms Gurman’s version, the plaintiffs’ time on the road would have been even less.[202]
[202]T314
Conclusion as to liability
221The substantive question therefore is whether a prudent, not overly cautious driver[203] travelling in a northerly direction in her line of traffic within the speed limit, would reduce speed to allow for the sudden presence of the plaintiffs who crossed without looking, without warning, at night, wearing dark clothing in an area which the police described as having lighting but of poor quality.
[203]Ilievski v Zhou [2015] VSC 158
222In my opinion, neither plaintiff has made out a case of negligence on the part of Ms Turner.
223I accept that her vehicle was reasonably travelling at 50 to 55 kilometres per hour in the northern lane, and that when she first became aware of the presence of the plaintiffs on the road – saw a flash – she braked and took all steps available to her. There was no breach of duty on her part.
224Dr Richardson’s ultimate opinion gives further support for my finding.
225Although it is not necessary to make this finding, I accept, as counsel for the defendant submitted, this was a clear case of negligence on the part of the plaintiffs and none on the defendant’s part.[204]
[204] T306
226It follows that the plaintiffs’ claims must be dismissed.
APPENDIX 1
Figure 11: Photograph of the collision location
APPENDIX 2
Figure 12: Daytime image of the collision scene
APPENDIX 3
Figure 19: Aerial image of the collision
APPENDIX 4
Figure 15: Police sketch of the positions of the Plaintiffs,
and the Defendant’s Vehicle, at rest
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