Peak v Dunleavy

[2008] NSWDC 232

CITATION:	Peak v Dunleavy [2008] NSWDC 232
HEARING DATE(S):	18, 19, 25, 26, 27, 28 and 29 August 2008
JUDGMENT DATE:	10 October 2008
JURISDICTION:	District Court Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. I find the Defendant was negligent and I consequently enter a verdict for the Plaintiff in the agreed sum of $5,000,000. 2. I find contributory negligence on the Plaintiff’s part assessed at 35 per cent. 3. After apportionment for the Plaintiff’s contributory negligence I enter an interim Judgment for the Plaintiff in the sum of $3,250,000 pending an assessment of the amount to be allowed for funds management charges prior to the entry of final judgment. 4. I order the Defendant to pay the Plaintiff’s costs.
CATCHWORDS:	Negligence – motor vehicle collision – Plaintiff unable to give evidence – police investigation did not reveal point of impact in the collision – analysis of relevant events from limited data to determine the liability issues. - Contributory negligence – finding and apportionment dependent on evaluation of facts and circumstances. - Damages – agreed sum of $5,000,000 before apportionment – funds management charges to be assessed.
LEGISLATION CITED:	Motor Accidents Compensation Act (NSW) 1999: s 138
CASES CITED:	Adelaide Stevedoring Co Ltd v Forst [1940] 64 CLR 538 Bonnington Castings Ltd v Wardlaw (1956) AC 613 Bradshaw v McEwan Pty Ltd (HCA, 1952, unreported) Chappel v Hart [1998] 195 CLR 232 Clark v Ryan (1960) 103 CLR 486 Davies v Swan Motor Co. Ltd [1949] 2 KB 291 Duyvelshaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125 at 138 Evans v Lindsay [2006] NSWCA 354 Fox v Percy [2003] 214 CLR 118 Jones v Dunkel [1958-1959] 101 CLR 298 Luxton v Vines (1952) 85 CLR 352 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Manley v Alexander (2005) 80 ALJR 413 March v E. & M.H Stramare Pty Limited [1990-1991] 171 CLR 506 R v Parker (1912) VLR 152 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267
PARTIES:	Rachelle Suzanne Peak by her Tutor Doreen Peak Leonie Dunleavy
FILE NUMBER(S):	2280 of 2006
COUNSEL:	Mr RS McIlwaine SC and Mr CP Locke (Plaintiff) Mr SG Campbell SC and Mr SE McCarthy (Defendant)
SOLICITORS:	Velleley & Associates (Plaintiff) McLachlan Chilton (Defendants)

Introduction

1. The Plaintiff, Rachelle Suzanne Peak has brought these proceedings through her mother Doreen Peak as Tutor. The Plaintiff claims damages for alleged negligence in respect of severe and disabling injuries she sustained in a motor vehicle collision that occurred on 10 June 2004 when her motor vehicle came into collision with a vehicle that was driven by the Defendant. At the trial liability was in strong contest.

Nature of the case

2. The Plaintiff sustained severe multi-trauma which included a fracture of the base of the skull that required decompressive craniotomy, a crushed chest wall, pelvic fractures and multiple other musculo-ligamentous injuries and lacerations. She has been left with severe multiple disabilities due to brain damage complicated by a stroke. She has cognitive impairment and right-sided hemiplegia.

3. It was common ground between the parties that as a consequence of her head injury the Plaintiff has no recollection of the events leading up to or surrounding the collision. The Plaintiff was not called as a witness on account of the effects of her injuries which included post traumatic amnesia and an inability to speak. It was agreed between the parties that no adverse comment would be made as a consequence of the Plaintiff not being called to give evidence.

Principal issues in the case

4. When the case was opened the following matters were in dispute:

(a) the alleged negligence of the Defendant;

(b) the alleged contributory negligence on the part of the Plaintiff;

(c) whether the Defendant’s negligence was, in the legal sense, the cause of the Plaintiff’s injuries and resultant disabilities;

(d) the quantum to be assessed in respect of multiple heads of damage on account of the many injury related needs of the Plaintiff which required assessment.

Agreement as to damages

5. On the second day of the trial the parties announced that subject to the approval of the Court, they had reached an agreement on the quantum of the Plaintiff’s damages in the sum of $5,000,000 plus costs.

6. The agreement as to damages did not include any reduction for apportionment for alleged contributory negligence nor did it include any amount to be added to the Plaintiff’s damages in respect of the claim for funds management charges. It was agreed that funds management charges would need to be calculated by an actuary after my liability findings were announced. I indicated my provisional approval of the agreement the parties had reached on damages.

7. I deferred making formal approval orders in respect of the agreement to settle the damages issues pending a determination of the liability issues.

LIABILITY

8. The circumstances of the case are unusual in that the combined effect of the absence of evidence from the Plaintiff, the limited content of the eyewitness accounts and the limited products of the police investigation, require that a detailed analysis of the events be undertaken in order to determine the issues in the case. The limited nature of the evidence in this case, the importance of the issues to the parties and the amount involved requires that the reasons for judgment include a detailed and more extensive examination of the evidence to a degree which would perhaps not normally be required for the determination of such cases. Soulemezis -v- Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 per Kirby P at 259 and Mahoney JA at 271.

Summary of findings

9. I set out a summary of my findings.

10. I find that at the time of the collision the Plaintiff had attempted to make a U-turn manoeuvre to her right by which she turned into the path of the Defendant’s vehicle that was approaching from behind. I find that the Defendant failed to keep a proper lookout and failed to observe the Plaintiff’s flashing right indicator light that signalled the Plaintiff’s intention to pull out onto the roadway and into the path of the Defendant’s vehicle. I find that prior to the collision the Defendant failed to decelerate or apply her brakes so as to reduce her speed to allow the Plaintiff’s vehicle to pass without a collision. I find that the Defendant failed to warn the Plaintiff of her approach. I also find that the Defendant failed to swerve, steer or otherwise manoeuvre her vehicle so as to avoid a collision.

11. I find therefore that the Defendant was negligent and I find that the Defendant’s negligence was the cause of the Plaintiff’s injuries. I also find that there was contributory negligence on the Plaintiff’s part, the causative potency of which I assess at 35 per cent. I therefore apportion the agreed amount of $5,000,000 for damages to reflect my findings in relation to the Plaintiff’s contributory negligence. This results in an interim judgment for the Plaintiff in the sum of $3,250,000 plus costs pending agreement or assessment of applicable funds management charges.

Facts

Description of the scene

12. At about 6.40pm on Thursday 10 June 2004 a collision occurred between two vehicles on the northbound traffic lane on Wilfred Barrett Drive at North Entrance, New South Wales.

13. At the scene of the collision Wilfred Barrett Drive comprises an urban arterial road that runs generally north to south. The northbound carriageway comprises a sweeping 380m long curve to the left. The curve has a radius of 305m preceded by a 90m straight section. The nature of this curve is conveniently shown in a series of aerial photographs, namely Figure 3 on page 6 of Exhibit “D” and an enlarged aerial photograph that was marked Exhibit “8”.

14. At the scene of the collision the curved roadway was slightly banked but generally flat. The surface of the roadway comprised sealed bitumen with marked lanes for northbound and southbound traffic. These two lanes were separated by two unbroken white double centre lines. There were further white unbroken edge markings located near the edge of the bitumen road shoulder on either side.

15. The total width of the bitumen roadway comprising the northbound and southbound lanes was 7m, which meant that there was about 3.5m of trafficable lane width in either direction. In addition to the bitumen traffic lanes there were shoulders on both sides of the roadway each comprising a 2.5m wide chip-sealed bitumen surface delineating a cycleway or breakdown lane. Beyond the edges of the cycleway were some cleared grassed areas which were not the subject of measurements. Beyond that there was roadside vegetation comprising bushes and trees.

16. At the time of the collision the conditions were overcast and dark, the road was wet from previous rainfall but it was not actually raining.

Events preceding the collision

17. Shortly before the collision the Plaintiff had been driving her white Mitsubishi Lancer motor vehicle registered number APJ-02Y in a northerly direction along Wilfred Barrett Drive. The Plaintiff had been seen to pull her vehicle over to the left side of the road and park it off the carriageway. The front of the Plaintiff’s parked vehicle faced north. The evidence does not precisely identify the duration of time over which the Plaintiff’s vehicle was parked at the roadside. Significantly, the evidence does not identify the precise location where the Plaintiff’s vehicle had been parked other than to place it at an unknown position in front of and to the south of a south facing 70kph speed limit sign which was itself located on the left side of the northbound lane about 150m after the start of the curve.

18. A passing motorist, Mrs Joane Ginnbert, had been driving her vehicle north behind the Plaintiff’s vehicle and had observed that the Plaintiff had pulled her vehicle off the road to the left in order to park on the side of the road. Mrs Ginnbert continued to drive past the Plaintiff’s stationary vehicle and proceeded to turn left into a caravan park to continue on to her destination. Mrs Ginnbert said that as she passed the Plaintiff’s vehicle she observed the Plaintiff was within her vehicle and she noted some of the features of the interior of the vehicle. After she had passed the Plaintiff’s vehicle and had travelled some distance ahead to the north she looked back through her rear vision mirror and saw that the right sided traffic indicator was flashing on the front driver’s side of that vehicle. Her evidence concerning the flashing traffic indicator light was the subject of challenge and dispute by the Defendant.

19. Shortly after Mrs Ginnbert’s vehicle had passed the Plaintiff’s parked vehicle the Defendant’s vehicle, which was also travelling north on Wilfred Barrett Drive, entered the sweeping left northbound curve on the roadway some distance to the south of where the Plaintiff had parked her vehicle. The Defendant said that she was driving her Toyota Landcruiser registered numbered QEA-571 in a northerly direction on Wilfred Barrett Drive when she entered the curve and saw the Plaintiff’s parked vehicle ahead displaying its red rear lights. The Defendant disputed that the Plaintiff’s rear right indicator was flashing.

The collision and its immediate aftermath

20. In her oral evidence the Defendant said that as her vehicle approached the rear of the Plaintiff’s parked vehicle that vehicle moved from the stationary position and turned into the path of the Defendant’s vehicle. A collision then ensued. It was assumed by the Defendant and by the expert witnesses engaged by the parties that immediately before the collision the Plaintiff had attempted to make a U-turn across the Defendant’s path.

21. There was some dispute over whether the Defendant had kept a proper lookout and whether she drove at an appropriate speed and had responded with an appropriate state of alert to the presence of the Plaintiff’s vehicle as she continued to approach the point where the collision occurred.

22. The Defendant said that prior to the collision, just after she had seen the position of the Plaintiff’s parked vehicle, and as a response to having seen it, she moved her own vehicle to a position towards the centre of the northbound lane of the roadway as she approached the Plaintiff’s vehicle from behind. She said she did so as a courtesy in case a door was opened on the driver’s side of the Plaintiff’s vehicle.

23. There was conflicting evidence from the Defendant as to whether or not she had applied her brakes before the collision.

24. Mrs Ginnbert said that after she had passed the Plaintiff’s parked vehicle she turned her own vehicle to the left and off the roadway and was driving within the grounds of the nearby caravan park when she heard the loud noise of a collision. She immediately turned her vehicle around and drove back to the scene of the collision.

Police attendance at scene of the collision

25. Senior Constable Baird from Toukley Police Station was called to the accident scene, as were the ambulance and fire brigade services. The Plaintiff was trapped in her vehicle for some time before being removed and taken to hospital with serious injuries.

26. Senior Constable Baird drew a diagram in his notebook to indicate the relative positions of the two vehicles as he found them at the scene of the collision. He also made some marks on the roadway to enable some subsequent measurements to be taken during daylight. Senior Constable Baird was not able to identify a point of impact of the two vehicles. It appears that this was because the roadway was wet. Senior Constable Baird’s supervisor later attended at the scene and took some photographs.

Products of Police investigation of the collision

Police photographs

27. The original photographs taken by Senior Constable Baird’s superior officer were not produced because they could not be located. However, black and white photocopies of four of these photographs were available. These were tendered as photographs 1 to 4 of Exhibit “1”. Additional photographs showing the damaged vehicles were tendered as Exhibit “5”. I have reviewed and considered these photographs to assist with a reconstruction of events.

28. Photograph 1 of Exhibit “1” is a view apparently taken from a position at the centre of Wilfred Barrett Drive and shows numerous service personnel in attendance. It is not entirely clear from this photograph as to whether it shows a northbound or southbound view.

29. Photographs 2 to 4 of Exhibit “1” are a series of photographs which provide some assistance in arriving at an understanding of the mechanics of the collision.

30. Photograph 4 of Exhibit “1” shows the two vehicles after the collision and at rest on the eastern side of Wilfred Barrett Drive and straddling the southbound lane. The significance of this photograph is that it shows the Defendant’s vehicle to be juxtaposed to the Plaintiff’s vehicle at an acute angle to the perpendicular. It also shows the Plaintiff’s vehicle apparently straddling the southbound lane of Wilfred Barrett Drive almost perpendicularly.

31. Photograph 3 of Exhibit “1” is a similar view of the two vehicles juxtaposed in collision as is evident in photograph 4 of Exhibit “1” but this photograph is taken from a position on the northbound lane of the roadway looking towards the rear of the Plaintiff’s vehicle. This photograph shows the vehicle at rest and confirms that the Plaintiff’s vehicle is almost perpendicular to the roadway and straddling the southbound lane and the southbound cycleway or breakdown lane. This photograph also confirms the acute angle of the at rest juxtaposition of the front passenger’s side of the Defendant’s vehicle with the front driver’s side of the Plaintiff’s vehicle. It also shows the Plaintiff’s damaged driver’s door in situ.

32. Photograph 2 of Exhibit “1” is another view that shows the position of the two vehicles at rest following the collision. This photograph was taken from the front of the vehicles and shows the front passenger side corner of the Defendant’s vehicle abutting the front driver’s side quarter panel of the Plaintiff’s vehicle. Both vehicles are shown to be straddling the southbound cycleway or breakdown lane and in the foreground of the photograph a grass verge is seen on the south-eastern side of the roadway.

33. Each of the four photographs comprising Exhibit “1” show both vehicles to have been extensively damaged in the impact.

34. Photograph 2 of Exhibit “5” shows a close front view of the juxtaposed vehicles at rest after the collision. This photograph suggests an angled point of contact between the left front portion of the Defendant’s vehicle and the driver’s side of the Plaintiff’s vehicle. It also shows an extensive post-impact intrusion deformity within the driver’s side cabin of the Plaintiff’s vehicle.

35. Photograph 4 of Exhibit “5” shows a side on view of the damage to the driver’s side of the Plaintiff’s vehicle, apparently taken after the two vehicles had been separated in order to free the Plaintiff.

36. Photograph 10 of Exhibit “5” is a photograph showing the damaged driver’s side of the Plaintiff’s vehicle. The photograph was taken when the Plaintiff’s vehicle had already been loaded onto the tray of a recovery vehicle.

37. Photograph 11 of Exhibit “5” shows a front view of the damage to the Defendant’s vehicle. The photograph was also taken after the Defendant’s vehicle had already been loaded onto the tray of a recovery vehicle.

38. In view of the limited factual material available for consideration the foregoing photographs bear close examination and interpretation, for the purpose of analysing the manner in which the collision occurred. In particular it becomes necessary to determine whether the Plaintiff in fact undertook a U-turn manoeuvre. The photographs are also relevant to an understanding of the evidence given by crash analysis experts.

Measurements taken by Police at the scene

39. Senior Constable Baird attended the scene the following day to take some measurements relative to the marks he had made on the roadway on the previous evening. With the assistance of an odometer device attached to a wheel he established by measurement that the resting point of the vehicles was 180m south of Wyuna Avenue, a side street situated to the north of the collision site, and 210m north of Mini Street, a side street situated to the south of the collision site.

Factual statements subsequently obtained by Police

40. Some hours after the collision the Defendant attended at Toukley Police Station and gave a statement in the following terms:

“I am 34 years of age.

About 6:40pm, on Thursday the 10th of June 2004, I was driving home from work with a work friend who I know as Wan. She was seated in the front passenger’s seat.

I was driving my car which is a Toyota Landcruiser, registration no. QEA-571. I was travelling north on Wilfred Barrett Drive, North Entrance at about 60 to 70 km/h. I was travelling around a left-hand bend approaching the Two Shores Caravan Park. At the time, there were no other cars directly in front of me that I could see and I was driving with my headlights on.

I saw another white car that was pulled over to the left of the road, just off the roadway. The next thing I seen was just white in front of me. The car turned straight out in front of me as if the driver was doing a U turn. The car only pulled out as I was at the back of the car. I had no time to brake or do anything. I just remember hitting the other car and then putting on the brakes. My car slid, pushing the other car onto the other side of the road. We both came to a stop. The front of my car collided with both front and rear driver’s side doors of the other car.

The passenger in my car told me that she had hurt her leg. I then looked over to the other car I hit and I couldn’t see anyone in it. I then got out and saw that the driver of the other car was injured. I rang the Ambulance. Another guy that stopped then got into the car and started helping the driver of the other car.

I then waited until Police and Ambulance arrived. The passenger in my car was also taken to hospital by Ambulance as she had a swollen leg. At the time of the accident, it was dark and the road was wet but it was not raining at the time as it had been raining on and off all day.”

41. On 19 June 2004, nine days after the collision, Mrs Ginnbert attended The Entrance police station and provided a statement in the following terms:

“About 6.30pm – 6.45pm on Thursday 10/6/04 I was driving my car from The Entrance back to my holiday van in the Two Shores Caravan Park (North). I was following a white Mitsubishi Lancer. I saw the Lancer pull over to the left of the road just before the entry to the caravan park. I then passed the Lancer & turned into the park. As I was driving into the caravan park when I heard a loud bang. I then went back down the road & saw the same white lancer had been hit on the driver’s side doors by the front of a big 4WD with a bull bar. The 4WD had pushed the lancer onto the other side of the road I saw that a man was already helping the woman that was injured.”

42. Miss Wphawan Taisanthiah was a passenger who was seated in the front of the Defendant’s vehicle at the time of the collision. The investigating police obtained a statement from this witness. That statement appeared at page 115 of Senior Constable Baird’s notebook and was marked as MFI “8” but that statement was not introduced into evidence.

Witnesses

Factual witnesses concerning liability issues

43. Mrs Ginnbert, the Plaintiff’s brother Mr Peak and Senior Constable Baird were called to give evidence on liability issues in the Plaintiff’s case.

44. The Defendant and her passenger, Miss Taisanthiah and Mr Morgan, an officer with Wyong Shire Council, were called to give evidence in the Defendant’s case.

Expert witnesses and crash reconstruction reports

45. The parties each engaged expert witnesses with qualifications in engineering and traffic accident analysis. Mr John Jamieson was engaged on behalf of the Plaintiff. His report dated 29 August 2007 was tendered and marked Exhibit “D”. Mr Roger Stuart-Smith was engaged on behalf of the Defendant and his report dated 6 June 2008 was marked Exhibit “17”. Each of these experts gave oral evidence. The evidence of these experts was directed at analysis of the dynamics and mechanics of the collision in an attempt to reconstruct the events.

46. The Plaintiff also engaged a biomechanical engineer, Dr Thomas Gibson. He provided a report dated 17 March 2008 which was tendered and marked Exhibit “E”. Dr Gibson also gave oral evidence. The focus of his evidence related to the nature of the Plaintiff’s injuries based on assumed facts. His evidence related to a causation argument sought to be mounted on behalf of the Plaintiff.

47. A number of objections were taken to the evidence of these experts. Those objections related to matters of assumption, hearsay, speculation and as to whether the opinions being proffered by the experts were properly within the expert qualifications of the respective witnesses. In large measure the objections fell away and the remaining matters in dispute proved to be largely of a factual nature and in a relatively small compass so that I was not ultimately required to undertake a detailed filtration of the expert evidence in accordance with the principles in Makita (Australia) Pty Ltd -v- Sprowles [2001] 52 NSWLR 705.

48. I am mindful of the general criticisms made of the value of expert evidence in the field of crash reconstruction in cases such as this and I therefore approach the consideration of such evidence with caution. Fox -v- Percy [2003] 214 CLR 118 per Callinan J at 166 to 168.

49. A number of photographs and plans prepared by these experts were tendered through the evidence of the expert witnesses with the aim of assisting in the determination of the liability issues.

50. A number of fundamental factual issues arise for determination before the expert opinions could be drawn upon to the permissible degree to assist with the reconstruction of the events of the collision.

Factual issues for determination

51. The resolution of a number of factual matters are necessary precursors to the determination of the liability issues in this case. Those factual issues which arise for determination are:

(a) Was the Plaintiff attempting a U-turn manoeuvre at the time of the collision;

(b) Did Mrs Ginnbert see the right traffic indicator flashing on the Plaintiff’s vehicle after she had passed the Plaintiff’s stationary vehicle;

(c) Was the right traffic indicator operating in the flashing mode on the Plaintiff’s vehicle when the Defendant’s vehicle entered the curve and when the Plaintiff’s parked vehicle first came into the Defendant’s view;

(d) What was the probable speed of the Defendant’s vehicle as it negotiated the curve at the point where the Plaintiff’s vehicle came into the Defendant’s line of sight and at what speed was the Defendant’s vehicle travelling from that point to the point of impact between the two vehicles;

(e) What was the distance between the point when the Defendant first saw the Plaintiff’s vehicle parked on the side of the roadway, and the point where impact occurred between the two vehicles;

(f) Reconstruction of the course taken by the respective vehicles to the probable point at which a collision occurred between the vehicles;

(g) Was the Defendant negligent;

(h) Were the Plaintiff’s injuries caused by the negligence of the Defendant;

(i) Was the Plaintiff contributorily negligent.

52. Of the factual issues outlined above, items (a), (b), (c), (d) and (e) of paragraph 51 above, involve matters of fact and do not depend upon the input of opinions from expert witnesses.

53. The analysis of the factual issues embodied in items (f) and (g) of paragraph 51 above, whilst open to be determined as matters of fact are, in my view, aided by the input of expert witnesses.

54. The determination of the issues involved in items (a) to (e) of paragraph 51 above is in my view, a necessary precursor to a determination of the issues involved in items (f) and (g) of paragraph 51.

Was the Plaintiff attempting a U-turn manoeuvre at the time of the collision?

55. In formulating the theory as to how the collision occurred the parties and the experts retained by them have assumed that the Plaintiff was in the course of executing a U-turn manoeuvre on Wilfred Barrett Drive when the collision occurred. The source of that assumption appears to be the statement of the Defendant in which she told the investigating police that it appeared to her that the Plaintiff had turned straight out in front of her as if the Plaintiff was doing a U-turn.

56. The photographs comprising Exhibits “1” and Exhibit “5” show that the driver’s side of the Plaintiff’s vehicle sustained significant side-on damage. In my view that damage is consistent with the Plaintiff’s vehicle having turned to her right and into the path of the Defendant’s approaching vehicle as was indicated in the statement of the Defendant.

57. It seems to me that the only reasonable alternative hypothesis that might possibly explain the damage shown in the photographs would be for the Plaintiff’s vehicle to have turned slightly to her right in order to resume northbound travel on Wilfred Barrett Drive, and at the same time the Defendant’s vehicle, having been earlier positioned towards the centre of the road, swerved left to strike the Plaintiff’s vehicle on its driver’s side during some kind of overtaking manoeuvre. The absence of debris on the roadway does not exclude this hypothesis however it seems to me that this hypothesis is an unlikely explanation for the collision as it is inconsistent with the ultimate resting place of the vehicles after the collision, as was explained by both expert witnesses who undertook a resolution of the relevant vector forces of the collision. The experts concluded that the position of the vehicles at rest was consistent with the Plaintiff having attempted a U-turn manoeuvre shortly before the collision. I accept their opinions to this effect.

58. I find therefore that the Plaintiff was in fact attempting a U-turn manoeuvre to her right when a collision occurred between her vehicle and the vehicle being driven by the Defendant.

Did Mrs Ginnbert see the right indicator flashing on the Plaintiff’s vehicle after she had passed the Plaintiff’s stationery vehicle?

59. The question of whether Mrs Ginnbert had seen the Plaintiff’s right indicator flashing when she had looked back at the Plaintiff’s stationary vehicle through her rear vision mirror requires a detailed consideration of her evidence.

Mrs Ginnbert’s observations

60. Mrs Ginnbert was driving north on Wilfred Barrett Drive shortly before the collision. Her destination was the Two Shores Caravan Park which was located to the north and to the left ahead of where the Plaintiff was parked. She said she had been driving behind the Plaintiff’s vehicle on Wilfred Barrett Drive and had observed that the Plaintiff’s headlights were illuminated. She described seeing the Plaintiff’s vehicle move off the roadway and to the left to park on what she described as gravel which I take to refer to what she understood to be a gravel verge at the roadside. She described how, after she had passed the Plaintiff’s parked vehicle, she slowed down the speed of her own vehicle in preparation for making a left turn into the Caravan Park ahead.

61. Mrs Ginnbert said that after she had passed the Plaintiff’s vehicle and before she had turned left into the Caravan Park she looked into her rear vision mirror to check for other traffic behind her. She stated that when she did so she saw that the Plaintiff’s vehicle had its right front indicator on.

62. She then went on to describe how after she had turned into the Caravan Park and had driven for a little distance within the grounds of the Caravan Park, she heard what she described as a horrific bang. She estimated the time that had elapsed from when she saw the Plaintiff’s right indicator operating until the time she heard the bang as possibly being some 5 to 10 seconds or maybe a little longer.

63. The evidence of Mrs Ginnbert was the subject of two significant challenges through cross-examination.

64. The first challenge of significance was to Mrs Ginnbert’s observation that the Plaintiff’s vehicle had pulled over off the road and onto the roadside shoulder which she described as a gravel surface. The second challenge of significance concerned the content of her police witness statement which did not include any mention of her having seen the right indicator operating on the Plaintiff’s vehicle. The Defendant also sought to comment on the demeanour of Mrs Ginnbert when she was cross-examined.

First challenge to Mrs Ginnbert’s evidence – gravel versus bitumen cycleway surface

65. The first challenge concerning the presence or absence of a gravel surface turned out to be somewhat peripheral to the assessment of Mrs Ginnbert’s credibility.

66. The question of whether or not the area where the Plaintiff’s vehicle was pulled up off the road comprised a sealed bitumen or a gravel surface had relevance in two ways. The issue is arguably relevant to the accuracy of Mrs Ginnbert’s observations at the scene generally, which is a matter that goes to her credibility. The question also features as a potential distance variable concerning the calculations of the expert witnesses when making estimates of possible acceleration forces and times that they have assumed to have been applicable to the movement and direction of travel of the Plaintiff’s vehicle in the lead-up to the collision.

67. Mr Jamieson thought the difference between a gravel or grass surface as opposed to a bitumen surface would make approximately a 1 second difference to the time taken for the Plaintiff to have partly executed a U-turn from a stationary position to an assumed point of impact on the northbound lane. In the case of a bitumen surface his evidence of the time for a partial U-turn, which was based partly on calculations and partly on experiments he carried out at the scene, was 3 seconds. In the case of gravel or grass, this time would be extended to 4 seconds. I prefer and accept Mr Jamieson’s calculations concerning the estimated turning time because he had used non-violent acceleration assumptions compared to the opinion of Mr Stuart-Smith. Additionally, Mr Jamieson had verified his calculations by some practical experiments he had undertaken at the scene using a vehicle of similar power and turning circle to the Plaintiff’s vehicle, whereas Mr Stuart-Smith’s calculations remained entirely theoretical. I accept the appropriateness of Mr Jamieson’s methodology and therefore, his turning time estimates in this regard.

68. Mrs Ginnbert’s perception was that before the collision she saw the Plaintiff’s vehicle move off the road onto the cycleway or breakdown lane situated on the left hand side of the roadway. She said she thought the surface of the roadside at that point was gravel. In my view, the portion of this evidence that is critical to the case is not whether the roadside cycleway or breakdown lane was sealed bitumen or was comprised of gravel, but that it was onto this area that the Plaintiff had pulled over and parked her vehicle and was seen to have remained parked in that position moments before the collision. In my view the issue of whether or not the surface was gravel or bitumen became an irrelevant distraction in view of the evidence given by Mr Morgan.

69. Mrs Ginnbert was not the only witness who believed that the roadside shoulder comprised gravel. The Plaintiff’s brother, Mr Steven Peak was shown the photograph taken in 2007 that comprised MFI “3” and which was later tendered as Exhibit “4”. According to the best of his recollection, he identified what is seen as the surface of the cycleway on the left of the northbound carriageway as gravel and not bitumen. His evidence was based on his observations when he visited the accident scene about a month after the collision. I accept that in giving his evidence he was doing the best he could to describe the scene as he saw it but I find that he was mistaken in this regard. I come to this view because of the evidence of Mr Morgan.

70. Mr Morgan, a senior construction officer employed by Wyong Shire Council was called by the Defendant to give evidence. He was the council officer in charge of road works in the area of the collision site and described how, in July or August of 2001 some road widening works on the shoulders of the roadway at the scene had been carried out. He said the work comprised widening the shoulders by 2 metres on either side of the road. His evidence in this regard was based on his memory of events surrounding the progress of the works in question and his evidence was aided by viewing some council documents produced on subpoena and also viewing photographs tendered in evidence. In particular, he stated, and I accept, that the surface of the cycleway of breakdown lane in question was bitumen from the time the works in question were completed in mid 2001 and remained so until the date of the collision.

71. I observe that the foregoing finding on this issue is contrary to the evidence of Mrs Ginnbert and Mr Peak. However the consequence of this finding does not in my view require that I must reject outright the evidence of Mrs Ginnbert or the Plaintiff’s brother Mr Peak concerning their perception that the surface of the area in question was gravel. I come to this view for two reasons.

72. When Mr Morgan was asked to view the photograph taken in 2007, identified as Figure 7 and which was reproduced at page 10 of Exhibit “D” showing the northbound carriageway and road shoulder at the accident scene he acknowledged that at odd times, for various reasons, gravel was flicked onto areas where it collected such as that coincidentally depicted in the photograph. Further, Mr Morgan described the brown appearance of the sealed surface as shown in Figure 7 on page 10 of Exhibit “D” to be embedded brown stone where the bitumen covering had worn off to expose its real colour which was of a brown appearance. He agreed that what is shown in this photograph taken in 2007 would have comprised the surface as it was on 10 June 2004.

73. In my view the abovementioned photograph clearly distinguishes the dark colour of the bitumen carriageway from the lighter brown colour of the surface of the cycleway or breakdown lane so as to give the appearance of gravel.

74. In view of Mr Morgan’s evidence in this regard I am not prepared to reject outright the evidence of Mrs Ginnbert or Mr Peak concerning the appearance of the surface of the cycleway or breakdown lane suggesting it was gravel and not bitumen. In my view, in the circumstances, they have understandably held the honest and mistaken belief that the surface was gravel when they described what they saw. Mr Morgan’s evidence serves to reconcile what they believed they had seen as gravel when in fact the surface was bitumen. In any event, in my view, the issue ultimately ended up being of only peripheral relevance.

Second challenge to Mrs Ginnbert’s evidence – Plaintiff’s flashing right indicator

75. This then leaves for consideration the remaining challenge of significance to the evidence of Mrs Ginnbert, namely, her evidence that after she had passed the Plaintiff’s stationary vehicle she looked back and saw in her rear view mirror that the Plaintiff’s right indicator was in operation.

76. On this issue, at different times in the cross-examination of Mrs Ginnbert, it was variously put to her in the alternative, that she never saw the indicator signalling the intention of the Plaintiff to make a right turn or, that she might be mistaken about her observation of the operating status of the indicator. She denied both of these suggestions.

77. Mr Campbell SC cross-examined Mrs Ginnbert about when she was first asked questions about the indicator on the Plaintiff’s vehicle to which she replied that this had occurred on the day before she was called to give her evidence in the proceedings. She was also asked for an explanation as to why she had not told the investigating police officer of her observation of the indicator at the time she was interviewed and had given her statement to the police. Her explanation was simply that she was never asked the question.

78. I find her explanation for not having beforehand mentioned the indicator in her police statement, to have the ring of truth and I accept her explanations as being truthful. Further, in my view, the evidence from Senior Constable Baird as to the manner in which he obtained statements from witnesses does not render Mrs Ginnbert’s explanation improbable or unlikely.

79. Relevantly, there was no evidence to directly contradict Mrs Ginnbert’s evidence concerning her observation of the operation of the Plaintiff’s right indicator over the short period of time in which she had the opportunity to observe it. The evidence of the Defendant and Miss Taisanthiah could not contradict Mrs Ginnbert’s evidence of her observation of the state of the Plaintiff’s indicator during that short interval of time. This is so because at the time of Mrs Ginnbert’s observation of the Plaintiff’s indicator there is no evidence to suggest that at that moment the Defendant’s vehicle had already entered the curve and was in a position that would have enabled either the Defendant and or Miss Taisanthiah to be able to see either the Plaintiff’s vehicle or an indicator displaying a flashing light on that vehicle.

80. The evidence of the Defendant and Miss Taisanthiah is of course relevant to whether the indicator on the Plaintiff’s vehicle was in operation at the respective times when they saw the Plaintiff’s vehicle. That is a different issue and I will deal with that issue separately.

Further challenge made to the credibility of Mrs Ginnbert

81. The Defendant raised a further matter concerning the credibility of Mrs Ginnbert, namely, observations made regarding her demeanour towards the end of her cross-examination.

82. It was submitted that Mrs Ginnbert showed anxious behaviour in court which, it was argued, could have been indicative of the untruthfulness of her evidence. In this regard the transcript of her evidence between pages 46 to 49 shows that Mr Campbell SC sought an adjournment for the last 10 minutes before the luncheon adjournment on the first day of the trial so he could continue his cross-examination of Mrs Ginnbert at 2.00pm. The basis of his application was that he wanted to cross-examine Mrs Ginnbert with the aid of better copies of the photographs he wanted to use for that purpose.

83. It then appeared that Mrs Ginnbert became anxious and distressed over her childcare arrangements at Rooty Hill, which I note was some distance from the Court. In those circumstances I requested that the cross-examination continue until the usual luncheon adjournment to see if completion of it was reasonably achievable and I note that thereafter only four further questions were asked of Mrs Ginnbert and there was no re-examination. The witness was then excused. In these circumstances, I reject the Defendant’s additional demeanour based submission concerning the credibility of Mrs Ginnbert.

Resolution of the indicator issue and the credibility of Mrs Ginnbert’s testimony

84. I find Mrs Ginnbert’s explanations concerning her observation of the right indicator operating on the Plaintiff’s vehicle to be reasonable and believable. I accept those explanations as being factually correct. I find Mrs Ginnbert was a completely independent witness who did her best to truthfully recount the facts as she recalled them.

85. I accept the truthfulness of Mrs Ginnbert’s evidence that after she had passed the Plaintiff’s stationary vehicle and at the time when she looked back through her rear vision mirror she saw that the Plaintiff’s vehicle was showing a flashing right turn indicator.

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

86. The question of whether the Plaintiff’s right turn indicator was operating to indicate a right turn when the Defendant’s vehicle entered the curve and approached the Plaintiff’s vehicle is of critical importance to the factual analysis of the case and to the outcome of the case.

Preliminary analysis of the issue – opportunity for the respective witness observations

87. Having accepted Mrs Ginnbert’s evidence concerning the operation of the right indicator on the Plaintiff’s vehicle it is necessary to consider whether the indicator on the Plaintiff’s vehicle continued to operate without interruption between the time Mrs Ginnbert last saw it through her rear vision mirror and the time when the Defendant’s vehicle negotiated the curve and approached the point on the roadway where the two vehicles collided.

88. The Plaintiff was not able to give evidence on this issue. Both the Defendant and her passenger Miss Taisanthiah denied that the indicator was flashing on the Plaintiff’s vehicle whilst it was parked in a stationary position off the carriageway. I must assess the credibility of those denials in view of my finding concerning Mrs Ginnbert’s earlier observation of the indicator.

89. I commence my consideration of this issue by reviewing the available time interval between Mrs Ginnbert’s last observation of the blinker flashing on the Plaintiff’s vehicle and when she heard the noise of the crash. She described this interval of time to be some 5 to 10 seconds later or maybe slightly longer. I note that in this period Mrs Ginnbert’s vehicle would have slowed down to enter the caravan park and drive slowly over the speed bumps on the caravan park roadway. In my view there is nothing inherently unreasonable or improbable within Mrs Ginnbert’s evidence as to the time estimate she gave. In the absence of evidence to the contrary I accept Mrs Ginnbert’s estimation of the time lapse of 5 to 10 seconds having regard to her description of the distance and the territory over which she had travelled in this time.

90. Within that period of time of 5 to 10 seconds estimated by Mrs Ginnbert there was an interval of time when neither Mrs Ginnbert nor the Defendant or her passenger would have seen the Plaintiff’s vehicle.

Is it likely that the Plaintiff would have cancelled the operation of her right indicator?

91. The next question that arises for consideration is whether there was any discernable reason for the Plaintiff to interrupt or cancel the continued operation of the right turn indicator after the time when Mrs Ginnbert last saw it and before the Defendant had her first opportunity to see the rear of the Plaintiff’s parked vehicle. This issue is necessarily speculative in view of the inability of the Plaintiff to give evidence of her intentions at the time. The speculative nature of the exercise does not however preclude a consideration of the issue.

92. In examining this issue, from the perspective of the driver of a following vehicle, the Plaintiff’s reasons for stopping by the side of the road could have been for any one of a number of reasons or a combination of reasons. For example she could have stopped to make a U-turn as I have found to be the case or alternatively, to make or take a mobile phone call, to consult a map for directions or to make some kind of vehicle adjustment. The list is not intended to be exhaustive and remains speculative.

93. Whatever someone in the Defendant’s position may have thought to be the reason for the Plaintiff to have stopped, I think it is reasonable to assume, again, from the perspective of a following motorist in the position of the Defendant, that since the head and tail lights on the Plaintiff’s vehicle remained on, it was reasonable to assume that the Plaintiff intended to continue her journey at some point.

94. Whatever the reason was for the Plaintiff to have stopped her vehicle, for the Plaintiff to continue the journey she would have had to re-enter the northbound lane to travel either north or south. To travel north she would have simply had to reposition her north-facing vehicle onto the bitumen roadway. Alternatively, to make a U-turn she would have to turn the vehicle around to travel south. Either way, in those circumstances it was prudent and incumbent upon her to signal her intention to traffic that may have been approaching from either direction even if at the time she intended to move from the stationary position, she was not able to see any such traffic approaching because of the darkness which prevailed at the time.

95. Mrs Ginnbert saw the indicator to be operating. On an ordinary understanding this would mean the Plaintiff was signalling an intention to move to the right and onto the roadway from a stationary position. Apart from the evidence of the Defendant and Miss Taisanthiah, there is no evidence from which I could reasonably infer that the Plaintiff had cancelled her right indicator signal after it had been seen by Mrs Ginnbert and then nevertheless proceeded to move her vehicle to the right and onto the roadway to either travel north or to commence to execute a U-turn without signalling the intention to do so beforehand.

96. On the basis of Mrs Ginnbert’s description alone I am inclined to accept that the Plaintiff’s right indicator continued to operate after Mrs Ginnbert’s last observation of it. However, in order to further consider this issue before reaching a final conclusion I must examine the contrary evidence of the Defendant and her passenger, Miss Taisanthiah.

97. The point at which the Defendant or her passenger could have first seen the Plaintiff’s stationary vehicle and its indicator, and for that matter the approximate point of impact for the collision, were not identified with accuracy in the evidence. This is a matter of some importance in this case because the roadway was curved to the left. The approximate position of that point, both in time and distance, requires analysis and deduction.

Miss Taisanthiah’s evidence on the indicator issue

98. I commence this part of my analysis with an evaluation of the evidence of Miss Taisanthiah in order to reach an understanding of what she would have been in a position to have seen concerning the Plaintiff’s indicator in the lead up to the collision.

99. Miss Taisanthiah was a front seat passenger in the Defendant’s vehicle at the time of the collision. She was a work colleague of the Defendant. She was aged 34 at the time of the collision and was aged 38 at the time she gave evidence. She said she spoke and understood English in a limited way and preferred to give her evidence through a Thai interpreter. At the time of the collision she said she had been in Australia for 6 years since 1998. She worked as a cook and cleaner at the same local seafood restaurant where the Defendant also worked at the time of the collision. The Defendant was driving Miss Taisanthiah home from work when the collision occurred.

100. Miss Taisanthiah described the journey that commenced at the time when she and the Defendant had left work. She stated that they started the journey close to 7.00pm in the evening which I observe to be an incorrect time estimate. She stated that the Defendant had asked her to sit in the middle of three seats in the front of the vehicle for the journey because of the presence of some wood that I infer straddled the inside cabin space from the rear of the vehicle into the space normally available for a passenger in the front left portion of the cabin. She was asked to describe the quantity of the wood and she referred to it as a lot of wood coming into the front seat. She could not say whether or not the wood was loose because she said she did not take much notice of it.

101. Miss Taisanthiah described the prevailing conditions as being dark with slight rain. She agreed that at the commencement of the journey she and the Defendant had been chatting but she denied they were chatting at the time the vehicle approached the scene where the collision occurred. She went on to describe how, as the Defendant’s vehicle approached the scene she observed the Defendant’s speed to be below 70kph. She had discerned this from looking at the speedometer. She said that as the vehicle travelled north on Wilfred Barrett Drive she saw the Plaintiff’s vehicle parked near the 70kph speed limit sign. She could not give a more precise description than this for the location of the Plaintiff’s parked vehicle.

102. The photographs tendered in evidence show that the 70kph speed limit sign was on the left side of the road facing northbound traffic. She stated that she saw that the rear red lights were on the Plaintiff’s vehicle. In my view her evidence in this regard is of little assistance in determining the issue as she did not observe much detail at all as is apparent from her answer when. She was asked to describe what happened:-

“Q. As the car you were travelling in approached the place where the car was parked, did anything happen?
A. INTERPRETER: All I saw was a shadow or shape come out suddenly and there was a bang. It happened so fast.

Q. Are you able to tell his Honour now how close the car you were travelling in was to the place where the car was parked when you noticed that sudden movement?
A. INTERPRETER: I'm not really sure, but probably about three metres.”

103. The little detail Miss Taisanthiah gave in her evidence as to her estimation of what distance constituted 3m was followed by a good deal of confusion. When asked to point out what she meant by 3 metres she eventually described the width of the court room which, it was later agreed by the parties, measured 14.5m. Miss Taisanthiah said she was not sure whether 3m was the same measurement she was used to in Thailand. Her evidence on this issue was surprising because she was the holder of a current driver’s licence at the time she gave evidence although this was not the case at the time of the collision on 10 June 2004. After making due allowance for the difficulties of making distance comparisons within the confines of a court room, this evidence nevertheless caused me to entertain significant doubts over the reliability of Miss Taisanthiah’s stated observations.

104. Miss Taisanthiah initially gave evidence that she did not see an indicator light on the Plaintiff’s vehicle which is not necessarily the same as saying there was no indicator light flashing and available to be seen.

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

106. Her evidence was that her first observation of the Plaintiff’s vehicle was seeing it parked on the side of the road. Her next observation of the Plaintiff’s car was when it had pulled out and was just in front of the Defendant’s vehicle and just before a collision occurred between the two vehicles. This is confirmed by the following passage from her cross-examination:

“Q. … … Is the situation this that you weren't paying much attention to what was going on outside the vehicle as you sat there being driven along home by Mrs Dunleavy, is that right?
A. INTERPRETER: The only thing I noticed was noticing a white car parked with it's lights on near the 70 sign coming home and then it pulled out with a loud bang and I, I said shit.”

107. I observe that the evidence does not disclose any particular reason for Miss Taisanthiah to have maintained a state of alert observation during the journey to the point of the collision, as she was not the driver of the vehicle. Further, she was in the company of her friend and work colleague who was driving. The evidence does not disclose a basis for any apparent concern or discomfort, if any, she may have had over the Defendant’s driving such that as a passenger she felt the need to be unusually vigilant. Although she may have had some concern over the presence of a load of wood in the vehicle, in the absence of specific evidence from her of a concern to this effect, I am not prepared to infer that this represented a cause for concern for her which required that she was unusually vigilant to her surroundings during the journey.

108. From the sequence of events described by Miss Taisanthiah I find that she did not see whether or not the indicator was operating on the Plaintiff’s vehicle. I find that she did not see the entire course of movement of the Plaintiff’s vehicle across the path of the Defendant’s vehicle after it had moved from its stationary position into the pathway of the Defendant’s vehicle until an instant before the two vehicles collided. This probably explains why Miss Taisanthiah exclaimed in the manner she described in the passage quoted from her evidence.

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

110. Mr McIlwaine SC challenged the evidence of Miss Taisanthiah and suggested to her, as he was obliged to do, that the Plaintiff’s vehicle had its right indicator flashing when she first saw that vehicle by the side of the road. That suggestion was vehemently denied by Miss Taisanthiah in the following exchange:

“Q. I want to suggest to you that when you first saw the vehicle stationery (sic) on the side of the road ahead of you, its right hand indicator was flashing.
A. INTERPRETER: No it didn't have its blinker on - it's indicator on.

Q. And I want to suggest to you that when you saw the vehicle just before the collision it had its right indicator flashing.
A. INTERPRETER: No”

111. I do not accept Miss Taisanthiah’s denial concerning the Plaintiff’s right indicator because her denial is inconsistent with her earlier quoted testimony that all she saw was a shadow, a white car or a shape come out suddenly from the parked position.

112. I find as a fact that she did not have an opportunity to make the observation concerning the state of operation of the blinkers on the Plaintiff’s vehicle because her attention had been distracted by viewing the speedometer on the Defendant’s vehicle. It may have also been possible that she had a concern for her own comfort and welfare due to the presence of the pieces of wood that were intruding into the front passenger space within the cabin of the vehicle, which could serve to explain why she felt the need to check the speed of the Defendant’s vehicle as it negotiated the curve. I will not speculate further on this point and instead I will confine my analysis to the detail of Miss Taisanthiah’s evidence.

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

Defendant’s evidence on the issue of the indicator

114. I then turn to an examination of the evidence of the Defendant on the issue of the operation of the Plaintiff’s right indicator.

115. The Defendant had her attention drawn to Mrs Ginnbert’s evidence in which Mrs Ginnbert stated she had seen the Plaintiff’s indicator. The Defendant repeatedly, emphatically and with some indignation denied that the Plaintiff’s vehicle was showing an operating indicator. The Defendant became upset when Mr McIlwaine suggested to her that her denial was untruthful.

116. The Defendant was asked whether she would have acted differently if she had seen the Plaintiff’s right indicator as she approached. She stated that had she seen the Plaintiff’s indicator she would have slowed down.

117. The Defendant was asked whether there was a gap between the time she first saw the Plaintiff’s vehicle and the moment before impact. The implication of that question was that the Defendant had not seen the Plaintiff’s vehicle in the intervening time. The Defendant’s response was that “the accident happened very, very quickly”. She repeated her evidence that the collision occurred when her vehicle was almost, if not level with the Plaintiff’s stationary vehicle. The extract of her evidence on this point was:

“Q. Well, according to you, you were almost, if not level, with the back of the stationary vehicle very close to it. That's what you say isn't it?
A. Yes.”

118. I find the Defendant’s answer to the foregoing question to the effect that her vehicle was almost level with the back of the Plaintiff’s vehicle when the Plaintiff’s vehicle pulled out to be palpably wrong. This is so because if the answer were to be correct there would have been an insufficient amount of time for the Plaintiff to have entered onto the bitumen carriageway portion of the roadway, in the course of her U-turn manoeuvre and into a collision path with the Defendant’s approaching vehicle so as to cause the damage that is evident in the photographs tendered.

119. On the Defendant’s version cited above the collision would simply not have occurred. This view is confirmed by the effect of evidence from Mr Jamieson whose evidence I accept as to the time taken for the Plaintiff to have moved off and to have commenced a U-turn manoeuvre to place herself in the position where impact probably occurred. His evidence was, some 3 to 4 seconds were required for this, depending on the road surface, the estimate of about 3 seconds being applicable to a bitumen road surface which was the case here. On an acceptance of that evidence from Mr Jamieson the Defendant’s evidence on this point must be wrong, at whatever speed she was driving in the proffered range of between 60kph to 70kph. Either way, on the Defendant’s account, the collision simply would not have occurred in the manner she described as is apparent from the analysis that follows.

120. Having regard to Mr Jamieson’s evidence as to turning times, which I accept, it would take about 3 seconds for the Plaintiff’s vehicle to get to the likely position for impact during the partly executed U-turn. In that period of about 3 seconds, at 60kph or 16.7m per second the Defendant’s vehicle would have travelled over a distance of some 50m if not slightly more. At 70kph or 19.4m per second the Defendant’s vehicle would have travelled some 58m in 3 seconds. Either way, on that analysis, the Defendant’s vehicle could not have been level with the rear of the Plaintiff’s vehicle as that vehicle pulled out in front of the Defendant as was alleged by the Defendant. In my view it therefore follows that the Defendant’s account of the event as she described it must be wrong.

121. The Defendant’s improbable answer to the effect that she was almost level with the rear of the Plaintiff’s vehicle when the Plaintiff’s vehicle turned leads me to the view that the Defendant has incorrectly reconstructed her evidence concerning the events leading up to the collision. I am reinforced in this view because of the answer given by the Defendant in cross-examination, when it was put to her that the Plaintiff’s indicator was flashing when the Defendant was at least 90m from the point of impact she stated:

“A. I’m not aware of what 90 metres is. But the blinker was definitely not on.”

122. That evidence has also led me to doubt the correctness of the Defendant’s account of the events. This has led me to the conclusion that the evidence given by the Defendant concerning the events leading up to the collision was based on unreliable reconstruction on her part rather than actual recollection of the events.

123. I regard the divergence between the evidence of Mrs Ginnbert and the Defendant as to whether or not they had a conversation after the collision, including the content of such an alleged conversation to be of little, if any, relevance to the factual issues that I have to decide. The Defendant alleges Mrs Ginnbert had told the Defendant that in her opinion the collision was not the fault of the Defendant. In my view Mrs Ginnbert could not possibly have been in a position to form a view concerning fault. I therefore accept Mrs Ginnbert’s denial of the conversation and I reject the Defendant’s testimony to the contrary.

Resolution of the indicator issue

124. The Defendant said she had been a licensed driver for some 15 years prior to the collision. In that context the Defendant’s answer to the effect that she did not know what distance represented 90m was, in my view, somewhat disingenuous. In my view her answer was offered in an off-hand manner in an attempt to deflect the question but at the same time to gratuitously advocate for her position that the blinker on the Plaintiff’s vehicle was not on. I find her evidence concerning the Plaintiff’s blinker to be unconvincing and lacking in credibility.

125. In the light of what I consider to be the Defendant’s incorrect reconstruction of the events leading to the collision I do not accept her evidence that the Plaintiff’s indicator was not on. I come to this view because I do not believe the Defendant to have had a clear and accurate recollection of the events leading to the collision and I believe she has adopted an incorrect reconstruction of events which has led her to give mistaken evidence.

126. If it were otherwise she should have been able to describe the behaviour of the Plaintiff’s vehicle over the course of her approach towards the Plaintiff’s vehicle over the last 90m or so before the impact, assuming she had been keeping a proper lookout to the roadway ahead at that time. In my view maintaining a proper lookout would have included continuing to make observations of the Plaintiff’s vehicle parked on the roadside cycleway ahead of her and it would have included observing the detail of the flashing status of the Plaintiff’s right indicator light.

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

Speed of Defendant’s vehicle as it approached the scene of the collision

128. The curve in question was the subject of a 70kph speed zone as is evident from the photographs tendered.

129. The evidence concerning the speed at which the Defendant’s vehicle approached the scene of the collision came from a number of sources. I will examine the various accounts given in the evidence.

130. In the Defendant’s statement given to the police on the evening of the collision she said her speed was between 60kph and 70kph. In her oral evidence in chief the Defendant stated that she was travelling at 60kph. The Defendant sought to reconcile the variation between the two accounts she gave of her speed by saying that as to the speed of 60kph it was her practice to drive at 10kph below the speed limit when the roadway was wet, as was the case at the time of the collision.

131. She also stated that when she was interviewed by the investigating police for the purpose of obtaining her statement, she claimed that she was told to nominate the approximate range of the speed at which she was travelling. Having heard the evidence of Senior Constable Baird concerning the manner in which he obtained Mrs Ginnbert’s statement, and accepting that evidence, I infer that the same procedure was adopted in relation to the circumstances in which the Defendant’s statement was obtained, namely by question, answer and prompting for detail.

132. The issue of whether or not the Defendant applied her brakes before the collision is of relevance to her speed. In her oral evidence the Defendant gave some confused and contradictory evidence concerning whether or not she applied her brakes. In her statement to the police she stated she had no time to brake or do anything before the collision. In her evidence in chief the Defendant’s evidence on the issue of brakes was as follows:

“Q. Now, when you first saw that car, did you do anything?
A. I moved over slightly to the double yellow lines, just out of courtesy, in case the driver was getting out of the vehicle.

Q. And did you proceed along the road towards the car?
A. Yes.

Q. Now, at some stage did something happen in relation to that car?
A. It pulled out in front of me.

Q. And where were you in relation to it when it pulled out in front of you?
A. I was basically just behind it but in my lane.

Q. And what did you see when it pulled out in front of you?
A. I saw it in front of me.

Q. And are you able to say at what angle it was to your car when you saw it in front of you?
A. No.

Q. When you saw it in front of you, did you do anything?
A. I put on my brakes.

...When you saw it in front of you?
A. No.

Q. When you saw it in front of you, did you do anything?
A. I put on my brakes.

Q. Did something happen?
A. There was a collision, yeah.

Q. Are you able to say when in relation to the collision you actually got your foot on your brake?
A. Sorry, can you repeat the question?

Q. Yes. Are you able to say when in relation to the occurrence of the vehicle collision you got your foot onto the brake?
A. It really happened very quickly.

Q. What happened very quickly?
A. The accident happened very quickly.

Q. So are you able to answer my question?
A. I'm not 100% sure, but I did put on the brakes.

Q. What happened after the collision?
A. We just slid across the other side of the road.

Q. Where was your foot?
A. On the brake.

Q. In what manner were you applying the brake?
A. As hard as I possibly could.”

133. In cross-examination the following question and answer raised an inconsistency in the evidence of the Defendant in relation to the application of the brakes. At one point she said she did not brake, at another point she retreated from the issue and at another point she was not sure. In this regard her evidence was:

“Q. Ms Dunleavy, do I understand this to be the situation? And may I read to you what you said in your statement, exhibit 16. "I had no time to brake or do anything". Now is that correct, you did not brake at any time before the impact?
A. I said I'm not 100% sure.”

134. The Defendant was cross-examined about whether she had taken her foot off the accelerator at any time between first seeing the Plaintiff’s vehicle and colliding with it. Her answers were qualified and uncertain. They lead me to the view that the Defendant did not reduce her speed at all before the collision. Her evidence in this regard related to the hazard posed by the Plaintiff’s stationary vehicle:

”Q. So it was a potential hazard, wasn't it?
A. A potential hazard?

Q. Yes?
A. A potential hazard for me to knock her door off?

Q. That would be a potential hazard - the vehicle posed to you a potential hazard because you may have collided with the door if it was open?
A. Yes.

Q. Yet you did not take your foot off the accelerator, did you, at any time between first seeing that vehicle and colliding with it?
A. Sorry, can you say the question again?

Q. You did not take your foot off the accelerator at any time between first seeing the vehicle stationary and colliding with it?
A. As I said before to you, I'm not 100% sure, it really happened very quickly.

Q. Let's accept for a moment that you're not 100% sure, if you did, it was at the last instant before the impact, wasn't it?
A. Yes.

Q. And if you did brake, it was at the last instant before impact?
A. Yes.”

135. In view of the content of the Defendant’s statement to the police in which she stated she had no time to brake and in view of the confused manner in which she gave her evidence as to the timing of application of the brakes and having regard to the inconsistency within her evidence on this issue I do not accept that the Defendant applied the brakes at any time before the collision. I find that her statement to the police is more likely to be the correct version of events. It may well be that she attempted to apply the brakes after the collision but in my view she did not reduce her speed by braking or deceleration before the collision. The consequence of this finding is that the speed of the Defendant’s vehicle was likely to be constant as she approached the collision site.

136. The Defendant’s passenger Miss Taisanthiah who was seated in the middle front seat of the Defendant’s vehicle stated that she observed the needle on the speedometer of the Defendant’s vehicle to read below 70kph. Miss Taisanthiah’s vantage point was that she was seated in the middle of three seats in the front of the Defendant’s vehicle. As such she was in a position where she ought to have been able to see the speedometer needle. According to the evidence of Mr Stuart-Smith, whom I accept on this issue, Miss Taisanthiah’s observation of the speedometer needle, which was probably in the ten o’clock position, would have been likely to have been affected to some degree by the phenomenon of parallax error. Accordingly, Miss Taisanthiah’s observation of the speed indicator needle would suggest a speed below 70kph. Miss Taisanthiah’s evidence, taken together with the parallax error factor would suggest that the Defendant’s speed was more towards 60kph but less than 70kph.

Speed estimated by expert witnesses

137. The expert witnesses sought to reconstruct the Defendant’s impact speed by reference to the damage to the vehicles. Mr Jamieson estimated the Defendant’s speed at impact at about 65kph. Mr Stuart-Smith estimated the Defendant’s speed at impact as somewhere in the range 50kph to 65kph, probably at the higher end of that range. Whilst recognising these calculations are nothing more than a considered range of estimates they are of some assistance to me in cross-checking the Defendant’s own evidence as to her speed. In this regard, again whilst recognising that the experts were speaking in terms of a range of estimates, other than allowing for the fact that this evidence establishes a range, I find no relevant, glaring or irreconcilable inconsistency between the evidence of the experts and the evidence of the Defendant on the issue of her speed.

Resolution of speed issue

138. I find that at the time the Defendant entered the curve of Wilfred Barrett Drive her vehicle was travelling at a speed of 60kph. I find that from the time the Plaintiff’s vehicle first came into the view of the Defendant, the Defendant did not apply her brakes or decelerate at all and continued to approach the Plaintiff’s parked vehicle at the speed of 60kph even up to the point of the impact between the two vehicles.

Point of impact identified by a process of inference, not evidence

139. The available evidence does not identify with any degree of precision the actual location of the Plaintiff’s parked vehicle before it moved off into the U-turn manoeuvre and to the point where the two vehicles collided.

140. Just before the collision site the roadway comprised a sweeping left bend in the northbound lane of Wilfred Barrett Drive.

141. There is no objective evidence that identifies a point of impact on the roadway. There is no evidence that locates debris or skid marks on the roadway which could provide some guidance for inferring the position where the vehicles collided and therefore the commencement point for the movement of the Plaintiff’s vehicle.

142. The absence of such evidence requires that I attempt an evaluation of the factual and expert evidence to determine whether or not it is reasonably open to infer the position of the respective vehicles at the point of impact.

143. It is necessary that I undertake this analysis in order to attempt to arrive at an estimation of the distance over which the Defendant travelled between the time the Plaintiff’s vehicle first came into her view and the point where the vehicles collided.

Distance over which the Defendant ought to have seen the Plaintiff’s vehicle

144. In the absence of precise evidence identifying the position where the Plaintiff’s vehicle was parked by the roadside I have to undertake an examination of the evidence to determine whether that position can be reasonably inferred. This is necessary in order to determine whether the expert crash analysis opinions are of any assistance to my determination of the remaining issues to be decided in the case.

145. I commence with an examination of the available evidence to ascertain an approximate position of the Plaintiff’s parked vehicle before she turned and entered the roadway. The products of such an examination may then enable an approximation of the distance over which the Defendant ought to have first seen the Plaintiff’s vehicle.

First level of analysis –observations of the position of the Plaintiff’s parked vehicle

146. There are a number of intersecting points of reference in the evidence that permit an approximate position of the Plaintiff’s parked vehicle to be identified.

147. Mrs Ginnbert stated that when she saw the Plaintiff’s vehicle it was parked at a point before, that is to the south of, the 70kph speed limit sign. She was unable to say how far north of the Plaintiff’s parked vehicle that sign was situated.

148. The Defendant stated that she first saw the rear of the Plaintiff’s vehicle as the Defendant was driving on the bend in the roadway. She described the Plaintiff’s vehicle as being parked on the bitumen with its red tail or brake lights on at the back of the vehicle. The Defendant was not able to say how far away her own position was from the Plaintiff’s vehicle when she first saw it. She said she was not good with distances. For example, she could not relate to the distances that were put to her in cross-examination, namely 90m, 100m or 20 car lengths as the distance over which she had the Plaintiff’s vehicle in view as she approached it. Since the Defendant had been a driver of some 15 years experience I find it difficult to accept her evidence in this regard. At no stage did the Defendant identify the position of the Plaintiff’s parked vehicle in relation to the 70kph speed limit sign which was indisputably located on the left side of the roadway.

149. Miss Taisanthiah stated that she saw the Plaintiff’s car parked on the side of the road near the 70kph speed limit sign. She later clarified that evidence to mean that the Plaintiff’s car was in front of, meaning before or to the south of, that sign. She was unable to say how close the Plaintiff’s vehicle was parked to that sign because she said she did not take notice of it.

150. In summary, the most that can be gleaned from a synthesis of the combined evidence of Mrs Ginnbert, the Defendant and Miss Taisanthiah on the issue of the location of the Plaintiff’s parked vehicle is that the Plaintiff’s vehicle was parked on the left side of the roadway, on the bitumen cycleway at an indeterminate position south of the 70kph speed limit sign.

Second level of analysis –measurements and estimates by the expert witnesses

151. I have carefully examined the reports and the evidence of Mr Jamieson and Mr Stuart-Smith. Without direct evidence, each of these experts have made assumptions concerning the position of the Plaintiff’s stationary vehicle before it commenced to make the U-turn. Their reports do not include any accurate measurements concerning the distance over which the Defendant ought to have seen the Plaintiff’s vehicle.

152. Mr Jamieson has assumed that the Plaintiff’s vehicle commenced to make a U-turn from a point about 25m to 30m south of the ultimate resting position at which the vehicles were found. That position was more or less in line with the 70kph speed limit sign. He based that opinion on five basic assumptions.

153. The first assumption concerns the accuracy of the diagram prepared by Senior Constable Baird. That diagram shows that the resting place of the vehicles was approximately in line with the 70kph speed limit sign but on the opposite or north-eastern side of the roadway. The second is the assumption that the Plaintiff’s vehicle was making a U-turn at the time of the collision. The third assumption was that the Defendant’s vehicle did not significantly reduce its speed. The fourth assumption was the correctness of his calculation concerning the resolution of forces involved in the collision that “bulldozed” the Plaintiff’s vehicle by which he inferred an approximate point of impact. The fifth assumption was the very close proximity of the point of impact to the position of the Plaintiff’s parked vehicle before the U-turn commenced.

154. Mr Jamieson’s calculation of the forces that “bulldozed” the Plaintiff’s vehicle included some further assumptions. These were an assumed coefficient of friction on a wet roadway which was not challenged; the known masses of the vehicles, apparently making no allowance for the weight of the occupants which was also not challenged as being a significant variable and inferences drawn from the resting place of the vehicles. He also assumed that the calculated speed of the Defendant’s vehicle at the time of impact was about 65kph without significant braking having occurred prior to the impact.

155. I accept Mr Jamieson’s assumptions, method and his resultant analysis as reasonable and correct subject to one qualification, namely the speed variable of 65kph in respect of the Defendant’s vehicle which in turn affects the estimation of the Plaintiff’s parked position. That estimate has to be reconciled with my finding that the Defendant’s speed at the time of the impact was 60kph.

156. It becomes necessary to determine whether the changed speed assumption of 60kph rather than Mr Jamieson’s assumption of 65kph is likely to result in a significant variation in his opinion as to the likely position of the Plaintiff’s parked vehicle at the point where it commenced the U-turn. I must attempt to determine this issue myself since the 60kph speed assumption was not offered through expert evidence as an evidentiary alternative to Mr Jamieson’s assumption of 65kph. I approach the matter broadly, doing the best I can with the available evidence.

223. In my view, by her failure to keep a proper lookout the Defendant deprived herself of the opportunity to observe the Plaintiff’s indicator. This led to the Defendant depriving herself of the further opportunity to maintain a proper lookout. This led to a failure on the part of the Defendant to reduce her speed and to maintain a state of vigilant preparedness to take evasive action as was required by the movement of the Plaintiff’s vehicle on the roadway ahead of her. As a consequence I find that the Defendant was in breach of the duty of care she owed to the Plaintiff and as a consequence I find that she was negligent.

Did the Defendant’s negligence cause the Plaintiff’s injuries?

224. The question of whether or not the Plaintiff's injuries were caused by the negligence of the defendant is a question of fact. March -v- E. & M.H Stramare Pty Limited [1990-1991] 171 CLR 506.

225. At the trial some time was taken up with evidence and submissions on two central issues concerning causation of the Plaintiff’s injuries. The first issue on causation was the consequences associated with the fact that the Defendant’s vehicle was fitted with a bull bar. The second causation issue related to a theory that if the Defendant had applied the brakes before the collision and an impact of lesser severity had ensued, this would have resulted in a significantly lesser degree of injury.

226. Expert evidence was given to the effect that the bull bar fitted to the Defendant’s vehicle had the effect of causing disproportionate damage or impact by greatly stiffening the front end of the vehicle. This had the effect of counter-acting the benefit of an aspect of vehicle design which provided for the absorption of impact energy through controlled crush zones in the front end structure of the vehicle.

227. In the light of that evidence, which I accept, it is surprising and indeed a cause for concern, that the vehicle design rules continue to permit the fitting of bull bars to vehicles where the effect of a bull bar in a collision would be to cause disproportionate damage to the other vehicle and possibly the occupants of the other vehicle.

228. The photographic evidence demonstrated that the collision between the two vehicles resulted in a significant intrusion deformity on the driver’s side of the Plaintiff’s vehicle. The Plaintiff called Dr Thomas Gibson, a biomechanical engineer, whose hybrid discipline involved the interface between medicine and engineering, including the kinetics of injury and analysis of how the transmission of forces are resolved when they are applied to the human body. His report was admitted into evidence and marked Exhibit “E”.

229. The photographs comprising Figures 7 and 8 of Exhibit “E” dramatically show the significant intrusion into the cabin space of the Plaintiff’s vehicle that occurred in the collision.

230. Dr Gibson was asked to consider whether an impact at a lesser speed would have produced lesser injuries. There were two apparent bases for introducing this evidence. The first related to an argument concerning damage caused by the bull bar. The second basis related to an assumed lesser impact between the vehicles if the Defendant had applied her brakes prior to the collision.

231. The essence of Dr Gibson’s evidence was that there was a relationship between the quantum of energy of the impact force and the severity of injury. Whilst that is undoubtedly correct, in this case, I find it is not possible to co-relate that concept to the Plaintiff’s particular injuries so as to arrive at a finding on the balance of probabilities identifying and differentiating particular levels and categories of injury that may have been avoided by the application of lesser forces, either with or without a bull bar involved.

232. Whilst Dr Gibson’s evidence raised interesting issues, which, in this particular case, were dependent on many variables, some of which were capable of being defined and others not, in my view this is not an appropriate case in which to attempt to resolve speculation as to whether the Plaintiff would have incurred definably lesser injuries if there had been a lesser impact or absent the presence of the bull bar in the equation.

233. I come to this view because ultimately, all the Plaintiff must show is that the Defendant’s negligence materially contributed to her injuries. In my view the injuries suffered by the Plaintiff are the natural and probable consequences of the negligence of the Defendant. Accordingly, the Plaintiff has established that her injuries were caused by or materially contributed to by the negligence of the Defendant. Duyvelshaff -v- Cathcart & Ritchie Ltd (1973) 1 ALR 125 at 138 following Bonnington Castings Ltd -v- Wardlaw (1956) AC 613 per Reid LJ at 620. Consequent upon that finding it is otiose to speculate further as to whether a lesser degree of negligently applied force would have produced a lesser degree of injury. In my view therefore it is unnecessary to consider arguments concerning different possible outcomes on an application of Chappel -v- Hart [1998] 195 CLR 232 and like authorities.

234. In my view the Plaintiff has discharged the onus of proof with regard to causation of her injuries. It is therefore unnecessary in this case for me to make findings on the assumptions Dr Gibson was asked to consider for the purpose of expressing his opinions.

Was there contributory negligence on the Plaintiff’s part?

235. Having determined that the collision and the Plaintiff’s injuries occurred as a result of negligence on the part of the Defendant I now turn to an examination of the issue of contributory negligence to determine the extent, if any, to which the Plaintiff’s own conduct was responsible for the collision.

236. Although the inability of the Plaintiff to give evidence is somewhat of a disadvantage to the assessment of her role in the cause for the collision, it is nevertheless an assessment that must be undertaken on the available evidence.

237. Section 138(1) of the Motor Accidents Compensation Act, 1999 provides that common law principles concerning contributory negligence apply to motor accident claims of this type. The provisions of section 138(2) of the Act which relate to impairment issues concerning alcohol, drugs and the wearing of seatbelts do not apply to the evidence in this case. Section 138(3) of the Act provides that damages are to be reduced by a just and equitable percentage. Section 138(4) of the Act requires that I state my reasons for determining the percentage by which damages should be reduced on account of contributory negligence.

238. The starting point for a consideration of whether or not the Plaintiff must bear some of the responsibility for her injuries is to consider the place at which she chose to make a U-turn. I find that the Plaintiff was negligent in her choice of location in which to make her U-turn. I have come to this view because the Plaintiff had already traversed the left curve in the roadway to arrive at the location where she stopped and she must therefore be taken to have known that the bend or curve in the roadway was an inherently unsafe place at which to attempt the U-turn because of the risk of traffic appearing from around the curve from behind her and from where she had just driven. Even if such traffic drove within the applicable speed limit a foreseeable risk of a collision would arise if a U-turn was attempted at that place.

239. I find that the Plaintiff must have known, from the presence of the street lighting on Wilfred Barrett Drive a little distance to the north of where she had stopped and because she had already passed Mini Street to the south, that it was likely there were other and safer places along the roadway where she could turn off William Barrett Drive and turn either left or right into a side street and then safely turn around to travel south from the direction she had driven.

240. There is no direct evidence that the Plaintiff was familiar with the area and therefore should be taken to have known that the Caravan Park entrance was only a short distance ahead on the left and that Wyuna Avenue was also only several seconds ahead on the right, both of these places being safe places from which to manoeuvre her vehicle to turn around and travel in the direction from which she had come. Nevertheless I find that a reasonable person in the Plaintiff’s position ought to have realised, once she had pulled her vehicle over and parked where she did, that it was risky to turn where she had stopped and therefore if she wanted to turn her vehicle around she should have resumed her northbound travel until she reached a safe turning place or a straight section of road with good visibility in both directions where it was safe to turn.

241. Instead, the Plaintiff chose to turn her vehicle across double unbroken centre lines. According to the Road Rules such road markings made a U-turn in such a situation impermissible. It was also potentially unsafe to attempt this manoeuvre on a curved road. As a consequence I find that the Plaintiff was negligent and I find that such negligence on her part contributed to the collision and was therefore a contributory cause of her injuries.

242. The task of apportionment of damages on account of contributory negligence is an evaluative exercise, in which matters of proportion, balance, emphasis and the weighing up of different consideration plays a part, as has been more recently restated in Evans -v- Lindsay [2006] NSWCA 354 following Podrebersek -v- Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 493-494; Pennington -v- Norris (1956) 96 CLR 10 at 16 and Joslyn -v- Berryman (2003) 214 CLR 552.

243. The task, essentially, is to allocate the causative potency of the respective breaches according to proportions that are just and equitable as was explained in Davies -v- Swan Motor Co. Ltd [1949] 2 KB 291 at 326 per Denning LJ:

“The amount of the reduction is such an amount as may be found by the court to be ‘just and equitable,’ having regard to the claimant’s ‘share in the responsibility’ for the damage. This involves a consideration, not only of the causative potency of a particular factor, but also of its blameworthiness.”

244. In Pennington -v- Norris (1956) 96 CLR 10, the process of apportionment was explained by Dixon CJ, Webb, Fullagar & Kitto JJ at 16:

“What has to be done is to arrive at a ‘just and equitable’ apportionment as between the Plaintiff and the Defendant of the ‘responsibility’ for the damage. It seems clear that this must necessarily involve a comparison of culpability. By ‘culpability’ we do not mean moral blameworthiness but a degree of departure from the standard of care of the reasonable man.”

245. In Podrebersek -v- Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 532 – 533 the nature of the task of reaching an apportionment was described as:

“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris ) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd ; Smith v McIntyre and Broadhurst v Millman and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.” (Footnotes not reproduced)

246. With these principles in mind I approach the task of evaluating the causative potency of the Plaintiff’s actions compared to the actions of the Defendant.

247. In making this assessment I take into account that when the Plaintiff commenced her turn it was possible that she would have had no actual notice of the Defendant’s vehicle approaching. Further, if the Defendant had reacted reasonably and reduced her speed the collision would not have occurred as it was the Defendant and not the Plaintiff who was able to make a causative difference once the two drivers were in a position to see each other’s vehicles and on a collision course because the Plaintiff’s vehicle was moving at a much slower speed. That causative difference consisted of the Defendant’s greater ability to avoid the collision by slowing down significantly to allow the Plaintiff’s vehicle to complete the U-turn as she only needed to clear 3.5m of the northbound lane. As the Plaintiff’s vehicle was moving the Defendant could have steered around the rear of the Plaintiff’s vehicle. Neither of these options required a panic response on the part of the Defendant and were, in my view, readily achievable by a licensed driver keeping a proper lookout and maintaining a proper state of alertness for conditions on the roadway ahead, even on a left curve such as the one the Defendant was driving upon when the collision occurred.

248. One of the difficulties of evaluating the respective blameworthiness of the parties to assigning a degree of fault to the Plaintiff is a possible scenario which, whilst somewhat speculative, was not discounted by Mr Jamieson, namely, the possibility that the Plaintiff may have commenced her turn albeit at an unsafe place but at a time when she may have first looked over her right shoulder to see if the road behind was clear before turning, then looking ahead and commencing to turn only to find the Defendant’s vehicle coming towards her and then “freezing” in a stationary position either hoping the Defendant would stop or go around her. The missing link in such an analysis is the inability of the Plaintiff to give any evidence. This is a cause for some caution in approaching the task of balancing the different perspectives of the parties when evaluating and ascribing the degree of departure from the required standard of care. I must nevertheless make an assessment in the circumstances.

249. Putting aside speculation as to what the Plaintiff’s thought processes were which mediated her actions, the fact remains that the Plaintiff attempted to make a U-turn on a curve which necessarily required her to cross double unbroken separation lines. This situation ought to have operated on her consciousness as an injunction not to attempt such a turn in such a place but to find a safer alternative turning place. Against this factor, although not excusing it, is the Plaintiff’s display of a right turn indicator which ordinarily would have served to warn the approaching Defendant of the risk of the Plaintiff making a U-turn. In my assessment, in this case, the presence of the indicator signal places the Plaintiff’s actions in a lesser category of culpability than would have been the case if she had not displayed the indicator.

250. However, in making the U-turn as she did the Plaintiff necessarily exposed herself to the risk of a collision. This was a course of conduct that departed from the standard of reasonable care and it attracts a significant degree of culpability.

251. The conduct of the Defendant also has to be weighed in the balance to determine the comparative culpabilities.

252. In my view the evidence discloses a cascading series of failures on the part of the Defendant which I find to be successive departures from the standard of reasonable care. In sequence, she failed to keep a proper lookout and therefore failed to see the Plaintiff’s indicator. She then failed to continue to keep a proper lookout to make observations of the Plaintiff’s vehicle which deprived her of the opportunity to make a causative difference. She failed to reduce her speed, not just at the outset, but during the continuum of the period of her approach to the Plaintiff’s vehicle when her state of alert and vigilance, which should have been heightened, was characterised by the misplaced low grade response of slightly adjusting her road position by moving to the centre in the misguided belief that she only owed the Plaintiff a “courtesy” consideration, thereby demonstrating she had little if any appreciation of the risk of a collision.

253. The Defendant failed to take even the simplest course of decelerating to reduce her speed. She made no attempt to flash her lights even though she had been carrying out that practice earlier in the journey. That course, and the sounding of her horn to warn the Plaintiff of her approach, were actions that could have been undertaken concurrently and with ease as an ingrained response within the expected array of responses drivers carry with them from their basic training in the use of a motor vehicle. She also failed to avail herself of any kind of evasive manoeuvre by steering or swerving slightly to the left. These too ought to be ready and instinctive responses to danger. Her failure to keep a proper lookout was in my view so pronounced that she really didn’t regard the risk of a collision being worthy of anticipatory behaviour until the collision was almost in progress, a situation which she unrealistically sought to explain with the catch all description to the effect it happened very quickly, which was an overstatement delivered as a result of the antecedent pivotal failure to keep a proper lookout.

254. I am mindful of the fact that minds may differ on the evaluation of the degree of culpability to be assigned to the respective parties in such cases. Other cases are, as the authorities instruct, of limited guidance because of intrinsic factual differences.

255. The Defendant submits that the contributory negligence of the Plaintiff should be assessed at 100%. I do not agree with that submission for the reasons outlined above. The Plaintiff submits that the Plaintiff’s contributory negligence should be less than 50% and up to 40%. I think that submission has some force and application to the facts of this case.

256. Having given the issue of just and equitable apportionment a good deal of consideration, for the reasons outlined above, I have come to the view that the Defendant should bear the major share of the responsibility for the collision. That said, I am of the view the Plaintiff’s share of the responsibility should not be regarded as minor. The Plaintiff’s act of negligence was, in effect, a single departure from the expected standard of care. On the other hand, the Defendant’s negligence comprised successive departures from the expected standard. In these circumstances I believe the respective responsibilities should not be assessed as being equal.

257. In striking a just and equitable balance between the respective culpabilities, in the circumstances of this case I apportion responsibility for the collision at 65 per cent responsibility on the part of the Defendant and 35 per cent responsibility on the part of the Plaintiff.

Approval of agreement to settle quantum

258. I have considered the array of medical and damages costing reports listed in the schedule accompanying the folder of 31 such reports that comprised MFI “9” which was provided to me for the purpose of determining whether the agreement the parties have reached on quantum was reasonable and in the Plaintiff’s best interests. I have also had regard to the Plaintiff’s schedule of loss which was marked MFI “9” which confirms my view that the proposed agreement is in the Plaintiff’s best interests. I now formally admit that material into evidence by consent as Exhibit “J” and Exhibit “K” respectively.

259. The agreement between the parties on quantum was in the sum of $5,000,000 plus costs subject to apportionment for any finding concerning contributory negligence and is expressed to be exclusive of funds management charges which are yet to be determined. Having indicated my provisional approval of that agreement on the second day of the trial I now formally confirm my approval of that agreement and sanction it by making appropriate orders.

Orders

260. I make the following orders:

(a) I approve the agreement of the parties as to quantum.

(b) I find a verdict in favour of the Plaintiff in the agreed sum of $5,000,000.

(c) I find that the Plaintiff’s own negligence contributed to her injuries.

(d) I assess the Plaintiff’s contributory negligence to be 35 per cent.

(e) I apportion the respective responsibilities of the parties for the Plaintiff’s damages to be 65 per cent the responsibility of the Defendant and 35 per cent the responsibility of the Plaintiff.

(f) In accordance with my order for apportionment I enter judgment for the Plaintiff in the interim sum of $3,250,000.

(g) I order the Defendant to pay the amount of the judgment into Court within 28 days less any due deductions required by the provisions of the Health and Other Services (Compensation) Act, 1995 (Cwth) and I order that the balance of such sum be invested in an interest bearing account for the benefit of the Plaintiff pending the further order of the Court.

(h) I stand the proceedings over to Friday 24 October 2008 for the purpose of receiving further evidence and submissions on the issue of funds management charges.

(i) If required I grant liberty to the parties to apply for further orders on 3 days notice.

(j) I order the Defendant to pay the Plaintiff’s costs.

(k) The exhibits may be returned.

1. Para 40 corrections to quoted statement.
2. Para 137 sub-heading added.
3. Para 138 sub-heading added.
4. Para 214 "would" instead of "could"
5. Para 250 "comparative" instead of "corporative".
6. On further hearing the parties concerning the implementation of the order in para 260(h) I revoke the orders in paras 260(f), (g) and (j) above pending further submissions on the issue of funds management charges.