Richardson v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Richardson v Allianz Australia Insurance Limited [2023] NSWPIC 454
CLAIMANT:	John Richardson
INSURER:	Allianz Australia Insurance Limited
SENIOR MEMBER:	Brett Williams
DATE OF DECISION:	7 September 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; whether the motor accident on the M7 at Horsley Park on 2 December 2020 was caused wholly or mostly by the fault of the claimant for the purposes of section 3.11 and section 3.28; factual dispute about how accident occurred; expert opinions; Mamo v Surace, Vairy v Wyong Shire Council, Manley v Alexander, Boateng v Dharamdas, Podrebersek v Australian Iron & Steel Pty Ltd, Insurance Australia Limited t/as NRMA v Richards, AAI Ltd v Moon, Ho v Professional Services Review Committee No 295, and San v Rumble (No 2) applied; Held – the accident was caused by the fault of both drivers; the contributory negligence of the claimant in relation to the motor accident was greater than 61%; for the purposes of section 3.11 and section 3.28 the accident was caused mostly by the fault of the claimant, cost orders made under section 8.10(4)(b) and section 8.3(4).
DETERMINATIONS MADE:	CERTIFICATE 1. For the purposes of s 3.11 and s 3.28 of the Motor Accident Injuries Act 2017 the motor accident on 2 December 2020 was not caused wholly by the fault of Mr Richardson. 2. For the purposes of s 3.11 and s 3.28 of the Motor Accident Injuries Act 2017 the motor accident on 2 December 2020 was caused mostly by the fault of Mr Richardson. 3. The insurer is to pay Mr Richardson’s reasonable and necessary costs incurred in connection with the proceedings. 4. A statement of my reasons for this determination are attached to this certificate.

STATEMENT OF REASONS

BACKGROUND

John Richardson was injured in a motor accident on the M7 at Horsley Park on 2 December 2020 (accident). He subsequently made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on Allianz Australia Insurance Limited (insurer), the insurer of the other vehicle involved in the accident.
When the accident occurred, Nyomi Whitton was the front seat passenger in the Holden Commodore Station Wagon driven by Mr Richardson. His son, John Richardson Jnr, was seated in the back of the vehicle. The other vehicle was driven by Annie Looney. Luke Balderston was the front seat (and only) passenger in the Mitsubishi Outlander driven by

Ms Looney.
On 25 March 2021 the insurer denied liability to pay statutory benefits to Mr Richardson after 26 weeks on the basis that the accident was caused wholly by the fault of Mr Richardson. Although not explicitly stated in the liability notice issued by the insurer, the denial of liability was made in accordance with, and for the purposes of, s 3.11(1)(a) and s 3.28(1)(a) of the MAI Act[1].
[1] Section 3.11 relates to weekly payments and s 3.28 to treatment and care.
Mr Richardson sought a review of the insurer’s decision to deny liability for his claim. On 20 April 2021 an internal reviewer affirmed the insurer’s decision that the accident was caused wholly by his fault.
Mr Richardson subsequently commenced these proceedings. He continues to dispute the insurer’s denial of liability under s 3.11 and s 3.28. The disputes are miscellaneous claims assessment matters: Sch 2 cl 3(d) and (e) of the MAI Act.
The procedural history of the matter is recorded in the preliminary conference reports issued to the parties.

LEGAL FRAMEWORK

An injured person is not entitled to statutory benefits more than 26 weeks[2] after the motor accident concerned if the motor accident was caused wholly or mostly by the fault of the person: s 3.11(1)(a) and s 3.28(1)(a) of the MAI Act.
[2] Given the date of the accident, the amendments to s 3.11 and s 3.28 made by the Motor Accident Injuries Amendment Act 2022 (Amendment Act) do not apply – s 2 Amendment Act.
A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident, as referred to in s 3.38, was greater than 61%: s 3.11(2) and s 3.28(2) of the MAI Act.
Fault means negligence or any other tort: s 1.4 of the MAI Act. Divisions 1-4 and 8 of Part 1A of the Civil Liability Act 2022 (Liability Act) apply to motor accidents: s 3B(2) of the Liability Act. The Liability Act defines “negligence” to mean failure to exercise reasonable care and skill: s 5.
The Liability Act does not deal with the concept of the duty of care in negligence per se. The identification of the duty of care owed is to be determined by reference to common law principles: Mamo v Surace [2014] NSWCA 58 (Mamo) at [48].
The duty of the driver of a motor vehicle to users of the roadway is to take reasonable care for their safety having regard to all the circumstances of the case: Vairy v Wyong Shire Council [2005] HCA 62 (Vairy) per McHugh J at [26]. The duty is always the same – to conform to the legal standard of reasonable conduct in the light of the apparent risk: Vairy at [25]. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path: Manley v Alexander [2005] HCA 79 per Gummow, Kirby, and Hayne JJ at [11].
Section 5B(1) of the Liability Act sets out three preconditions that must co-exist to establish breach of duty. The effect of s 5B(1) is that a party was not negligent in failing to take precautions against a risk of harm unless the risk was one of which he knew or ought to have known, the risk was not insignificant, and in the circumstances, a reasonable person in his position would have taken those precautions: Mamo at [50].
The question of whether there has been a breach of duty is to be addressed prospectively and by reference to what a reasonable driver in the circumstances would have done, if anything, by way of a response to any foreseeable risks of injury or sources of danger to other road users: Boateng v Dharamdas [2016] NSWCA 183 per Gleeson JA (Leeming JA and Davies J agreeing) at [75].
If I find that both drivers failed to exercise reasonable care and skill, and that the accident was caused by the fault of each, contributory negligence will come into play: s 3.11(2) and s 3.28(2) of the MAI Act.
Contributory negligence is determined on the basis of what is just and equitable in the circumstances of the case: s 3.38(3)(c) of the MAI Act, none of the circumstances referred to in s 3.38(2) being relevant, and there being no percentage fixed by the regulations. This involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable person and of the relative importance of the acts of the parties in causing the accident. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 (Podrebersek).
Section 5R of the Liability Act provides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person has been contributorily negligent.
The burden of proving that the accident was caused wholly or mostly by Mr Richardson’s fault lies with the insurer. It is for the insurer to lead evidence which not only establishes the basis of its decision in relation to the claimed statutory benefits, but also persuades the Commission that on all of the evidence, it can be concluded that the accident had been caused wholly or mostly as the result of the fault of Mr Richardson: Insurance Australia Limited t/asNRMA v Richards [2023] NSWSC 909 at [45] [55] and [67].

ASSESSMENT HEARING

The proceedings were listed for hearing on 24 August 2023. Mr Richardson and Ms Whitton gave oral evidence in person at the hearing. Ms Looney and Mr Balderston gave evidence by audio-visual link. Both parties made oral submissions. I will address the evidence and the submissions later in these reasons.

EVIDENCE

The parties have provided a joint agreed bundle of documents.[3] The joint bundle contains all documentary evidence relied on by the parties in the proceedings.
[3] Dated 10 July 2023.

Mr Richardson’s evidence

Mr Richardson has provided a number of versions of the accident, including in his oral evidence at the hearing. The first version in time is the statement recorded in the police notebook on 2 December 2020, the day of the accident. The notebook records, relevantly, the following account:
“I’m driving in the right hand lane on the M7, there’s 2 lanes. I noticed a car coming at high speed behind me. I was already doing 100km/h. I put my indicator on and went to the left lane. As the car was still coming at high speed, I beeped the horn at them to tell them to slow down. The other car braked hard and came back to about 70, 80km/h still in the right lane. I was still doing 100km/h. The other car was still in the right lane as I had gone past him in the left lane. I didn’t think that when I beeped the horn that they would slow down that much. I’m sure I put an indicator on to get to the right lane. I’m going back over to the right lane, I’m merging over and the other driver has 1 wheel over the white line over the grass area. The other driver has veered back into my lane and that’s when my car was hit and spun out onto the grass. I think I hit that steel crash barrier rope which flipped my car….
Q. Can you tell me what speed you were travelling prior to the collision occurring?
A. 100km/h.
Q. Which direction were you travelling on the M7?
A. Heading South on the way to Wollongong….
..
Q. Did you want to add anything else?
A. The other driver wasn’t letting me into the lane to merge. When I’m merging they sped up and she over steered into my lane and that’s when she clipped me. I will add that the other driver wouldn’t let me into her lane. She sped up to block me.”
In his claim form dated 14 December 2020, Mr Richardson provided the following description of the accident:
“I was driving on M7 a car suddenly breaked [sic] in front of me. Went past car merged into right lane car sped up and hit my car. Right bumper. Car rolled over about 4 times. Other car did not slow down before hitting me. Can give more details over the phone.”
Mr Richardson’s statement of 5 January 2021 records that on 2 December 2020 he, Ms Whitton, and his son, left home at approximately 6.00pm, some 15 minutes prior to the accident. He entered the M7 Motorway at the Woodstock Road entrance and proceeded to head in a southerly direction. The weather was fine and visibility was clear.
He states that he entered the left lane of the Motorway. Shortly after, he moved to the right lane. He indicated with the blinker prior to changing lanes. While in the right lane his vehicle was travelling at 100kmph. Traffic was light. His vehicle was approached from behind by a Mitsubishi Outlander, in the right lane. This was the first time he had seen the Outlander. It was travelling faster than his vehicle. He estimated that the vehicle was travelling at 130 to 140kmph. He immediately moved across to the left hand lane.
Mr Richardson states that the Outlander passed at a very fast speed. As it passed his vehicle he honked his horn to indicate that they should slow down. A few seconds after he had sounded his horn the Outlander applied its brakes. Because the other vehicle braked, he passed them but remained in the left lane. There was a van in the left lane in front of his vehicle. He estimated that the van was travelling no faster than 100kmph.
After looking in the rear-view mirror and checking that it was safe to do so, he changed from the left lane to the right lane.
He then observed the other vehicle appear to be attempting to overtake his vehicle between the right lane and the centre nature strip. There was not enough room for a vehicle to overtake another vehicle where the Outlander attempted to do so. When the other vehicle impacted his vehicle, both vehicles were in the right hand lane. The left hand front side of the other vehicle impacted with the right hand rear side of his vehicle causing his vehicle to spin around, enter the nature strip and flip over.
A sketch of the accident scene is attached to the statement. The sketch places Mr Richardson’s vehicle wholly in the right hand lane when the accident occurred. It depicts Ms Looney’s vehicle partly in the right lane and partly on the nature strip.
A transcript of Mr Richardson’s electronically recorded interview (ERISP) with Senior Constable Spalding at Fairfield Police Station on 20 January 2021 contains, relevantly, the following exchanges:
“…
Richardson:         … you want me to tell you what the lead up was?
Spalding:              Yes.
Richardson:         Right, well the driver – we got onto the M7, I think it’s Woodstock Avenue we turned onto the M7.
Spalding: ...
Richardson:         We drove probably 5 minutes, 10 minutes up the street. The whole time I’ve been in the right lane.
Spalding: ...
Richardson:         Talking to my partner in the passenger seat. I’ve explained to her that I would love for the traffic to be the way it is at that moment every day, as I drove on that road every day, and the traffic was light. There was no traffic around that I could see.
Spalding: …
Richardson:          And then as I was just explaining that – I said there’s always got to be an idiot, and could see this car coming up behind me at a high rate of speed. I’ve moved over to the left hand lane to let them by. As they’ve come past me in the right hand lane, I’m in the left. I’ve beeped my horn as if – like, because they’ve – to see if they could see me and say slow down. They’ve gone past me. About say 10 seconds, not even 10 seconds later, they slammed on the brakes, not enough to make the brake – not enough to make marks on the road or smoke come from the tyres, but slowed their speed right down to at least 70/80kms as in to try to like brake check me from beeping the horn.
Spalding: …
Richardson:         And I think they must have thought that I had already gone back over into the right lane to be behind them, but I wasn’t and I kept going past and then there was a car – I can’t even remember what colour the car was but I seen it up ahead, so I’ve started to merge over. As I’m going over I could see their speed was picking back up. As I’ve got over, I’m looking and said to my wife, ‘They’re going to go around me on the grass’ and as I looked out her – looking back over to the car, they hit my right hand bumper and we spun onto the grass straight away, and then … we rolled the car but I’m not – I didn’t realise that we had went to the other side, coming to the like north direction.
…
Richardson:         Yeah, sort of like that, and they were, like before they hit me they were back here.
Spalding:             …
Richardson:         Heading that way, but then they …
Spalding:             Went around on the shoulder.
Richardson:         They’ve tried to come around the back.
Spalding:             ...
Richardson:         Do you know what I mean? I’ll use my phone but that’s how they came around. That’s my car and I’m travelling, I’m over, and then she’s come like that.
Spalding:             …
Richardson:         And this is the two lanes, and you’ve got that tar, that black tar on the side of the road.
Spalding:             On the shoulder of the road, yes.
Richardson:         And her car should have been a bit more further over and it was like her tyres had hit that, and that’s like it pulled her and then she’s oversteered to get back on the road.
…
Richardson:         The car, like as it’s come in behind me and I’m in the right lane, I’m looking forward and could see the other car so there was like – If I would have went to the left lane I would have hit a car over here, but they’ve – I was more focused on her and seeing that she was actually going to go around, and I thought that she was going to completely miss me because on that area of the M7, there is no barriers there. Right where the accident is for a few ks there’s no barriers.
…
Spalding: Okay. What speed do you think you were travelling at just before the collision?
Richardson:         Just before, probably about 100km.
Spalding:             How do you know you were travelling at that speed?
Richardson:         Because that’s the speed that I stayed on all the way from Woodstock and it’s like, it’s not – I don’t go up to 110 until you go over onto the Hume Highway, once you get off the M7 it goes to 110.
Spalding:             When did you last look at the speedo?
Richardson:         Um … I’m not sure. I always keep checking it
Spalding: Okay. So you mentioned you were, you were initially on the left, the left lane, but the collision was when you were in the right lane, yeah?
Richardson:         Yeah.
…
Richardson:          It’s like – yeah that’s – there’s like a – once I come over, it’s like they – because their car come around. It’s like, I don’t know, once you’re on the road, you can see it and it’s like where you’re out, and where I’m out on the road in the right lane and if someone tries to go around – if someone were to go around you, they would have to be over this white line. That’s when I looked at her in the rear vision mirror and when I looked over my shoulder, she was over that white line and still looked like she was – it looked like she was heading in a direction to go into the grass, and that’s why I yelled out ‘She’s going to go into the grass, this sheila’.
Spalding:…Okay, so where they actual – where they bumped you, that was inside this lane?
Richardson:         Yeah, I was inside this lane.
Spalding:             About the middle or?
Richardson:         Yeah.
Spalding:             Okay, so the middle of the right lane.
Richardson:         Yeah.
Spalding:             Okay, and that was after you merged, right?
Richardson:         Yeah.
Spalding: Okay. So you said you saw the other vehicle just before it happened, right? You saw them look like they were going to go around you and they were already over?
Richardson:         Yeah.
Spalding: How far – was it half their car over that white line or most of the car, or?
Richardson:         Yeah most of their car. It seemed like it was – like they were going to go on the grass, so it would have been most of their car. It was …
Spalding:             Most of their car is over the line, yes?
Richardson:         Yeah.
Spalding: When you first saw the car, how far away were you when you first saw it? The other driver, the other car.
Richardson:         The other … how far was they from me?
Spalding:             Yeah, I think you mentioned they were speeding up?
Richardson:         Yeah, it probably would have been about 50 metres back from.
Spalding:             Fifty metres behind, and it was in the right lane?
Richardson:         In the right lane, yeah.
Spalding:             Did you take any evasive action prior to the collision?
Richardson:         Um, that’s what I thought I did was move a bit over because that’s why in the drawing I’m sort of feeling like that I got closer …
Spalding:             To the middle of the lane?
Richardson:         To the middle of the lane. Just not – to even see whether there was enough room for her to just keep going, you know.
Spalding:             ...
Richardson:         I knew that I couldn’t get over into the left lane.
Spalding:             Because of the other car.
Richardson:         Because of the other car. Because I just – I couldn’t believe that she just didn’t slow down. Like, I was already over and she was just – just kept coming and coming and coming and just didn’t brake, and was – it just seemed like – it all happened so fast, but it just seemed like it happened so slow. Like, to just see that she’s still coming and coming and coming and coming and just, and then she’s going over and over, and I thought she’s going to end up off the road.
Spalding:             Okay, and did you brake at all during that, or was it just too quick?
Richardson:         Too quick. I’m not even sure I – yeah I’m not even sure. I remember that I was more trying to steer to be able to not hit anything. I remember not like steering to try to even straighten the car up, but there was just – there was no control because it was just – I went off the road.
Spalding:             Okay, and that’s where you went into the median?
Richardson:         Yeah, I was in the median strip by then.
…
Spalding: And did you pass any other vehicle just prior to the collision? That would have been the other car that you saw in front initially. Is that right? You were passing them?
Richardson:         I don’t even think I got past it. It was a distance up but I don’t think I passed it.
Spalding:             So were you overtaking it or was it going the same speed?
Richardson:         No, it was going the same speed. It stayed up.
…
Spalding: Alright. So, so how do you think … who do you think is at fault for the collision? How do you think it occurred?
Richardson:         The other car.
Spalding:             The other car, and because?
Richardson:         Because there was plenty of room for it to stop and it didn’t slow down. It still kept trying to .. it kept … like it went to, still kept trying to get around me even though there was no room for it to come around me.
Spalding: Tried to get around you. And you think that their actions caused the collision?
Richardson:         Yes.
Spalding: Okay. Is there anything else you can tell me about how the collision occurred?
Richardson:         How it occurred.
Spalding:             Yeah.
Richardson:         It was just that they – they must have just wanted to be in front. That’s all I can say, really. They must have wanted to be in front and just keep the speed they were going. They might have got the shits that I beeped the horn to slow them down but to be travelling at the speed they were travelling at was …”

In his statement of 24 May 2021, Mr Richardson again states that the speed of Ms Looney’s vehicle was 130kmph to 140kmph as it approached his vehicle in the right lane. He states that he was driving within the speed limit. He states that “[r]ealising that it was likely not safe to remain in the same lane as a car driving at such excessive speeds, I merged into the left lane. I did so with no difficulties.”
He honked his horn to indicate to the driver of the other vehicle to slow down. The other vehicle was still in the right lane, and passed his vehicle “given the excessive speed at which it was travelling”. After honking, he recalled observing the other vehicle suddenly brake. He observed the brake lights of the vehicle turn on. His car then passed the other vehicle, given the sudden nature of the braking. At this point, his car remained in the left lane, ahead of the other vehicle, which remained in the right lane. He states that he then merged back into the right lane and did so effectively with no difficulties.
Mr Richardson disputed that his merge back into the right lane was the point where the accident occurred. He states that he merged back into the right-hand lane with ease, and that he did not collide with any vehicles when merging back into the right lane. He then continued driving in the right lane, with the other vehicle visible through his rear-view mirror.
The statement records that on the right side of the right lane, there is a strip of asphalt, with a width of approximately 1-2m, followed by a “grass bitumen”. The other vehicle began to veer onto this asphalt and increased in speed. This behaviour indicated to him that the other vehicle was planning to overtake him. As the other vehicle began to veer onto the asphalt, he recalled seeing their right tyres enter the grass bitumen. At this point, the other vehicle began to return onto the road and it was in that process that the accident occurred.
The other vehicle was unsuccessful in overtaking him. It was his best estimate, based on his recollection of the accident, that entering the grass bitumen had thrown off the balance and steering of the other vehicle. As a result, the driver, in his opinion, was likely unable to manoeuvre back onto the road successfully and at a reduced speed. The front left bumper of the other vehicle collided with the back right bumper of his vehicle.
Regardless of the competing versions of events, Mr Richardson states that he was certain that the other vehicle entered the grass bitumen.
In his statement dated 27 March 2022, Mr Richardson stated that he had only been driving on the M7 for a short period before the accident occurred. He stated that it was his practice to remain in the right lane in that area, as there was usually a build-up of traffic ahead in the left lane, where the exit to the M4 is located. He states that he did not want to drive in the left lane as he knew he would eventually have to merge into the right lane to avoid that anticipated build-up of traffic. He reiterated his opinion that the other vehicle was travelling at 130kmph to 140kmph. This assessment was made on the basis of how quickly he could see the vehicle approaching through the rear view mirror.
Mr Richardson states that he believes he was driving at about 100 kmph just prior to the accident. He rejected Ms Looney’s contention that her attempt to overtake him was the only time she exceeded the speed limit. Ms Looney was, to his observation, speeding before and during the time she overtook his vehicle. He states that the excessive speed of Ms Looney’s vehicle as it drove up behind his vehicle was the sole reason he moved into the left lane, to allow her to pass, while she was maintaining an “excessive speed”. He states that Ms Looney’s vehicle caught up to, and passed, his vehicle very quickly.
Mr Richardson stated that he honked his horn to indicate to the driver of the other vehicle to slow down. After he had done so the vehicle continued to travel at an “excessive speed” until it reached a point where it was about 20m to 30m ahead of him in the right lane. At this point, he observed the brake lights of Ms Looney’s vehicle come on, and observed the vehicle still in the right lane to slow down to a speed well below the speed limit. He estimated that speed to be about 80km/h, as he was still travelling l00kmh in the left lane and was quickly catching up to, and soon overtook, the other vehicle.
Following this point, he recalled observing a van travelling in front of him in the left hand lane. The van was still quite some distance away, but it was obvious to him that the van was travelling well below the speed limit. This fact, coupled with the fact that it was his usual practice to remain in the right lane to avoid the M4 exit congestion that was approaching, led him to decide to move back into the right hand lane. He states that he did so safely and with no difficulties.
After merging into the right lane, Mr Richardson states that he noticed from his rear view mirror the other vehicle, once again approaching at an excessive speed. When the vehicle was at a distance of about 20m behind his vehicle, he observed the other vehicle begin to veer to the right, whilst continuing to drive at an excessive speed. About half of the vehicle remained in the right lane, while the other half had veered on to the strip of asphalt.
Mr Richardson stated that, if Ms Looney’s vehicle had lingered behind him, and had continued to be driven in that manner, he would have, once again, merged into the left lane to avoid her vehicle. He states that the accident happened too quickly for him to make a decision to move into the left lane again.
He states that Ms Looney’s vehicle continued to veer more substantially onto the asphalt and maintain its excessive speed as the vehicle drove beside him to the right. Mr Richardson states that, at this point, it was evident to him that Ms Looney was attempting to overtake his vehicle. He states that it became clear to him that the strip of asphalt was far too narrow for Ms Looney’s vehicle to overtake his vehicle whilst remaining solely on the asphalt. He recalled saying to Ms Whitton words to the effect “[t]hey’re going to come around us on the grass”.
The statement records Mr Richardson’s belief the right sided tyres of Ms Looney’s vehicle entered the grass to the right of the strip of asphalt. He recalled that, at that point, Ms Looney had not overtaken his vehicle. Her vehicle was still to his right, although it had not yet reached a point where it was either parallel with or had overtaken his vehicle. The accident occurred in the process of Ms Looney veering her vehicle back onto the asphalt.
The front left hand corner of Ms Looney’s vehicle impacted the rear right hand corner of his vehicle. His vehicle jolted to the left, and after that, he states that he lost control of the vehicle.
Mr Richardson states that he did not believe the collision to be deliberate. Based on his recollection, and his “assessment of the events”, he believed the impact was a non-deliberate response by Ms Looney to her right side tyres entering the grassed area, resulting in her trying to steer her vehicle back onto the asphalt, resulting in the collision.
In his oral evidence, Mr Richardson agreed that his initial account of the accident does not record that he had completed entry into the right hand lane with ease, and without difficulty. He agreed that in the account he first gave police, he said that “the other driver wouldn’t let [him] into her lane” and that she sped up to block him. He also agreed that in the initial version he provided on the day of the accident he did not refer to having completed a successful re-entry into the right lane, that he continued to drive, looked up into his rear vision mirror and saw Ms Looney behind him at a point where about 20 metres behind his vehicle she commenced to veer off the road.
Mr Richardson agreed that there was no traffic, nor was there any congestion. He disputed that the real reason he wished to go back into the right lane had nothing to do with congestion or traffic but was simply because he found himself stuck behind a vehicle that was travelling at a slower speed.
His evidence was that the van was 300-400 metres ahead of him when he first saw it, and that he thought the van was travelling at a slower speed than his vehicle. While he agreed that his vehicle was gaining on the van, he said it was “still quite some distance away” from him. His evidence was that he wasn’t gaining on the van quickly, and that the van “had nothing to do with the car accident … [it] was still too far in front.” The van was “at least” a couple of hundred metres in front. His evidence was that the van had nothing to do with his decision to turn into the right lane. He explained that, in terms of the initial version he provided police, he thought that the more important part was where the impact occurred, as opposed to what had occurred earlier.
Mr Richardson gave evidence that prior to merging into the right lane he looked in the rear view mirror, side mirror and over his shoulders.
I accept Mr Richardson’s evidence that, while he was initially in the right lane on the M7 he was travelling at 100kmph. I accept his evidence that he saw Ms Looney’s vehicle approaching his in the right lane at a speed in excess of the speed at which he was travelling. I accept that he merged from the right lane into the left lane because Ms Looney’s vehicle was gaining on his.
I accept Mr Richardson’s evidence that he sounded his horn as Ms Looney’s vehicle passed his, to indicate that she should slow down, and that after he sounded the horn Ms Looney applied the brakes of her vehicle. I consider it significant that Mr Richardson told police on the day of the accident that “the other car braked” after he sounded his horn, and that in his subsequent statements, and his ERISP interview, he gave a consistent account about this matter. Further, his evidence is supported by the evidence of Ms Whitton and Mr Richardson Jnr, evidence that I accept on this issue.
I do not accept Mr Richardson’s evidence that he merged safely into the right lane before the collision occurred. I consider it more probable than not that the collision occurred while he was merging, not after he had merged, into the right lane. In this regard, I find that the version of events he provided to police on the day of the accident is more reliable. The version he provided at that time was: “I’m merging over and the other driver has 1 wheel over the white line…” and later “[t]he other driver wasn’t letting me into the lane to merge. When I’m merging they sped up…the other driver wouldn’t let me into her lane…”.
I find that it is more probable than not that Mr Richardson looked in his mirrors and over his shoulder after, and not before, he commenced merging into the right lane. This finding is supported by Mr Richardson’s account, recorded in the ERISP, that “when [he] looked over [his] shoulder, she was over that white line and still looked like she was – it looked like she was heading in a direction to go into the grass”. As will be seen, I consider it probable that what he saw was Ms Looney taking evasive action in response to his vehicle merging into the right hand lane.
I do not accept Mr Richardson’s evidence that the reason he changed from the left lane to the right lane was in part to avoid congestion at the M4 exit. The uncontested evidence is that immediately before the collision occurred traffic on the M7, in the direction both vehicles were travelling, was light. Indeed, the evidence is that there were only three vehicles in the immediate vicinity: Mr Richardson’s, Ms Looney’s, and the van in the left lane. I do not accept he made the merge out of habit. Further, I consider that if this had been the reason he merged, he would have said so in the initial account he provided police.
I do not accept Mr Richardson’s evidence that Ms Looney attempted to overtake his vehicle while partly on the grass verge (also referred to as the “centre nature strip” and “grass bitumen”) and partly in the right lane when his vehicle was wholly in the right lane. I consider this to be wholly improbable. I find that it is more probable than not that the reason Ms Looney’s vehicle was partly within the right lane and partly on the verge was because she had taken evasive action to avoid Mr Richardson’s vehicle after he started to merge into the right lane. I find that what Mr Richardson thought was Ms Looney’s vehicle attempting to overtake him was in fact her taking evasive action to avoid a collision with his vehicle that had merged into the right hand lane in front of her.

Ms Whitton’s evidence

Ms Whitton gave a statement dated 5 January 2021. The statement records that just prior to the collision she was holding a cup of coffee in her left hand and her mobile phone in her right. Her vehicle was in the right lane before it then moved into the left lane. She states at [19]:
“The other vehicle, which I have been advised was a Mitsubishi Outlander … involved in the accident was at that time in front of our car before moving across to the left hand lane….”
Ms Whitton states that just prior to Mr Richardson moving the vehicle from the right lane to the left lane, the other vehicle in front had been applying its brakes. Shortly after, the other vehicle slowed and was travelling immediately beside their car. Mr Richardson then accelerated and passed the other vehicle. The other vehicle did the same, drawing beside them. I do not accept this evidence. It is not consistent with the evidence of Mr Richardson, Ms Looney, or Mr Balderston.
Ms Whitton states that she became concerned with what was happening and put her phone down. Mr Richardson appeared to accelerate and to move to the right lane to get away from the other vehicle. He had completed the lane change when the other vehicle collided with the rear end of their car.
Attached to the statement is a sketch of the accident. It depicts the vehicle in which she was travelling wholly in the right lane at the time of impact. The other vehicle is partly in the right hand lane and partly in the nature strip.
In her statement to police dated 15 March 2021, Ms Whitton stated that at about 7.00pm on 2 December 2020, she was in a vehicle traveling southbound on the M7. Mr Richardson was driving. Their son was in the backseat right behind the centre console. She was on her mobile phone with a coffee in her left hand. She went on to state:
“[Mr Richardson] beeped the horn in the vehicle at the car in front of [them] who [Mr Richardson] said were driving too fast. As soon as [he] said this, I looked up to notice a grey coloured SUV in front of us who suddenly slammed on their brakes and came almost to a complete stop. We were in the 2^nd lane on the M7 motorway at the time.”
She states that Mr Richardson changed lanes and moved into the first lane (the left lane[4]) and continued to drive. She then saw the SUV catch up to them “and on numerous occasions speed up and slow down in order to stay level with [them] on the 2nd lane.”
[4] A matter clarified by Ms Whitton in her evidence at the hearing.
She states that Mr Richardson then drove forward to “get away from the SUV”. She stated that:
“I then turned backwards and looked over my son to see if they were still trying to catch up to us. I noticed at this time they were approximately 30 metres behind. My partner has then tried to merge into the 2^nd lane as there was approximately 30 metres distance between us and them.”
After the merge, she turned to see the SUV drive up to the right rear hand side of their vehicle. She believed they were on the grass patch. She then turned to the front. In the process she felt the SUV hit the rear right hand side of their vehicle with force. Mr Richardson lost control of the vehicle, which turned 90 degrees to the right at speed. The car then flipped a number of times.
In her oral evidence Ms Whitton clarified that part of her statement in which she said that Ms Looney’s vehicle was in the left lane; her oral evidence was that when she saw the vehicle it was, at all times, in the right lane. She gave evidence that before Mr Richardson sounded his horn, she “wasn’t really taking much notice”. She had a drink in one hand and her phone in the other, and was looking at Facebook. Her evidence was that she saw Ms Looney “slam on [her] brakes”. At that time the vehicle in which she was travelling was in the left lane and the other vehicle was in the right lane. She said that the accident “happen[ed] so quickly”. Ms Whitton recalled seeing a van, that was “far away”.
Ms Whitton’s evidence was that:
“..when she had slammed on her brakes and then he had just kept driving like that car was like they kept trying to stay beside us and then I’ve started taking notice and then that’s when I ... I don’t know, like something’s going on and then I remember saying like, are they … just the way that she kept coming - like she was trying to stay beside us, I don’t know, and that’s why I remember saying like are they fighting or are they like trying to have a go at us because you beeped the horn.”
Ms Whitton also clarified that, when in her statement she said that Mr Richardson had accelerated, she had intended to convey that he “kept driving” rather than increase speed.
The insurer argues that Ms Whitton’s version of the accident is completely inconsistent with the versions of both Mr Richardson and Ms Looney. It also submits that the accounts she provided raise significant doubt as to whether Ms Whitton actually observed the circumstances giving rise to the accident. The insurer submits little weight should be given to Ms Whitton’s recollection of events.
I find that while Ms Whitton was doing her best to give accurate evidence, limited weight should be given to her evidence. Her statements about the position of the vehicles before the collision were clearly incorrect, and required correction in her oral evidence. Her evidence that Ms Looney was “trying to stay beside” her vehicle and that “on numerous occasions” she saw Ms Looney’s vehicle speed up and slow down “in order to stay level with [them]” is not supported by the accounts provided by the other witnesses, including Mr Richardson. The one matter that I do accept is that she saw Ms Looney’s vehicle brake after Mr Richardson sounded the horn.

John Richardson Jnr’s evidence

John Richardson Jnr gave a statement to police dated 15 March 2021. He did not give evidence at the hearing. His statement records that he was in the middle back seat of the vehicle driven by his father. He states that they were driving in the left lane of two lanes in the direction of travel. There was a truck in front. He states that “[t]he car that crashed into us spe[d] past us”. His father “hit the horn to tell them to slow down.”
He states that the other car slowed down and looked at them. There were two people in the car. It looked like they were yelling. They slowed down all the way and went behind the vehicle in which he was travelling. His father merged into the right lane. He states that “[t]hey went over onto the grass and they were trying to get around us. They turned into us and hit the back right side of our car.”
I accept Master Richardson’s evidence that Ms Looney’s vehicle slowed down after the horn had been sounded by his father. For the reasons given in relation to his father’s evidence, I do not accept that Ms Looney was “trying to get around” the vehicle in which Master Richardson was travelling.

Ms Looney’s evidence

Ms Looney provided a version of the accident to police on the evening it occurred[5]. The following version of events, provided by Ms Looney, is recorded in the police notebook:
“I was behind the commodore heading south along the M7. We were both in the right lane. I saw them merge into the left lane. I began to overtake and pass them, however the driver sped up to stay level with my car. The driver of the Holden began to beep at me about three times. My partner in the car looked over towards the Holden however I tried to ignore the driver. There was a courier van in the left lane ahead of the commodore about a car space in front. I saw the commodore begin to merge into my lane. I could see there was no indicator. The commodore looked like he was trying to squeeze in front of me to avoid hitting the carrier van. The back/middle right of the commodore collided with the front left hand side of my car. As this happened I was already pushed over to the right hand side half of the road, as I was trying to avoid a collision. My car began to fishtail and lose control.
…
Q. ‘How fast do you think you were travelling?’
A. ‘I’m not sure exactly, just normal speed’
Q. ‘Did you ever slow down to let the other car into your lane?’
A. ‘He had no blinker so I didn’t expect it however I did hit the brake when he started merging into my lane. It all happened too quick for me to be able to stop the crash…’”
[5] The police notebook records that she signed the account of the accident recorded in the notebook at 9pm on 2 December 2020.

Ms Looney provided a statement to investigators instructed by the insurer dated 4 January 2021. The statement records that at the time of the accident she held a green provisional license. Immediately prior to the accident she was driving a Mitsubishi Outlander in a southerly direction along the M7 Motorway. Mr Balderston was the only passenger. They were returning from Glen Innes, having departed at 1.00pm to return home to Bradbury. They shared the driving.
The stretch of road on which they were travelling immediately before the accident was a two lane divided carriageway. Just prior to the accident she was travelling in the right hand lane at approximately 100kmph. Near a sign indicating the Wallgrove Road exit she first

saw a Holden Commodore travelling in front of her in the same lane. She estimated that the vehicle was travelling at 100kmph.
She states that Mr Richardson’s vehicle moved into the left-hand lane and she proceeded

to pass him, increasing her speed to 110kmph. As she drew level with Mr Richardson’s vehicle it began matching her speed and honking its horn. The other vehicle increased speed to an estimated 110kmph, similar to her speed.
There was a white van in the left lane approximately two car lengths in front of Mr Richardson’s vehicle. Ms Looney thought that the van was travelling slower than Mr Richardson’s vehicle because Mr Richardson’s vehicle appeared to be gaining ground on it.
Ms Looney states that “[s]uddenly and without any indication or warning the other vehicle began veering into the right lane while [she] was travelling immediately beside it and forced [her] vehicle into the grass area of the road divide.”
The other driver continued veering into the right lane and the driver’s side of the vehicle clipped the front passenger’s side of her vehicle. The impact caused her to lose control of the vehicle. She did not have time to slow or veer as the other vehicle completed this action without warning. She states that “[e]verything happened so quickly that [she] did not have any time to take evasive action.”
After being clipped by the other vehicle her vehicle went into a fishtail skidding action. She managed to regain control and merged across into the break-down lane where her vehicle came to a stop.
Attached to the statement is a sketch of the accident scene drawn by Ms Looney. The sketch depicts Mr Richardson’s vehicle merging from the left lane into the right lane in front of Ms Looney’s vehicle, with the van in the left lane in close proximity to where the merge occurred.
There is a transcript of interview between Ms Looney and Senior Constable Spalding recorded on 11 January 2021. Ms Looney states that she was travelling on the M7 heading towards Campbelltown in the right lane. Mr Richardson’s vehicle was in front of her. He moved to the left lane. She proceeded to overtake. When it started levelling with her car the other vehicle started veering to the right into her lane, pushing her into the middle of the island and then they swerved and hit the front left of her car because there was a van in the front of them in the left lane.
Ms Looney states that “instead of them hitting this van they’ve swerved like more into the right lane and then they’ve clipped my front left.”
At the point that she saw the van “he was still … a bit away… he wasn’t ages away but… was the only person [she] could see in front of [her].” The van “was just cruising, … he was not going the speed…”.
Ms Looney states that it was when he had caught up to the van that Mr Richardson’s vehicle started veering over. She thought her speed at that time was 100kmph.
When the collision occurred her vehicle was still in the right lane, but “was a bit on the grass still.” She stated that she was “trying to come back, like slow down, stop, move or something, because [she] didn’t want to lose control and end up where they were.”
She states that “[i]t was like he, like say he was like in the middle and then it was, ‘Oh crap I’m gonna hit the van’, and he’s just gone too quickly to try and get into [her] lane.”
The transcript records: “It was like – he was like half off and then I was half off and then his car was just in the right lane.” She agreed that the collision occurred around the middle of that lane.
Ms Looney also agreed that she merged over a bit to the right because Mr Richardson’s vehicle was coming into her lane. She stated that she started moving because he started moving, and she didn’t want him to hit her. She made this move to avoid Mr Richardson’s vehicle.
The transcript records:
“I was just driving and then like, I wasn’t up their butt, nothing, and then they moved over for me and I was like – and then I was just driving, like they were going slower than what I was driving, so they were going slower than the speed limit and then all of a sudden they were like coming up next to me and I was just like …”
The transcript also records the following exchanges:
“Spalding:            So he was initially in the right lane.
Looney:               And he moved over to the left.
Spalding:             And he moved over.
Looney: And then he honked his horn while he moved over and then started coming back. I think he was trying to scare me.
Spalding:             Okay. Then he started coming back.
Looney:               Yep. Like, he was very aggressive.
Spalding: Okay. Now, it says here that evasive action – that would be you moving over to the right, yeah? That’s what you tried to do.
Looney:               Yeah, I tried to move. I tried to give room.
Spalding:             Did you apply your brakes at all?
Looney: Um, I took my foot off the accelerator but I don’t know if I put my foot on the brakes because I didn’t really want to like ...
Spalding:             That’s alright. Not sure about brakes.
Looney: I was saying like when after he hit me, I just kind of like let the car work itself out for a minute before I put my brakes on. That’s why I ended up further down the road.
…
Looney: No, it was just he was merging to begin with and it was like [transcript unclear] or nothing like that. It wasn’t like, yeah, I’m trying to get in front of you. It was like he was trying to veer me off the road, and then it was – he obviously was paying attention to me and then has looked back and then the van’s right there and then he’s like kind of just swung across into the lane and that’s when he clipped me. Well, we both hit each other really.
…
Spalding: Okay. Now, you mentioned that he pulled over. So you’re overtaking him.
Looney:               Yeah, yeah and then he didn’t let me overtake.
Spalding:             But there was no other cars that were overtaking in the meantime?
Looney:               No.
Spalding:             Okay, do you think your actions were safe?
Looney:               Yeah, I felt like I didn’t do anything wrong.
Spalding: Okay. Now, just in your own words, why do you think that you didn’t do anything wrong?
Looney: Because he merged into me. He was very aggressive and like I could, I felt that something was going to go wrong when he started beeping at me, and I just wanted to, either him go or me go – just one of us get away from each other. I didn’t even realise what the issue was.
Spalding:             Yeah.
Looney: There was no road rage, nothing until he moved over and started beeping.
Spalding:             So no words were exchanged or anything like that? Just a beep.
Looney: He just – like I couldn’t hear, like my windows were up so I don’t know if he was yelling stuff or not, but he started beeping and I was just like what’s going on, and then he started merging over and that’s when I freaked out.
Spalding:             Did you see, did you see if he was hanging out the window?
…
Spalding:             …how fast do you think his car was going when it happened?
Looney: Well, he was going slower initially because he moved over and then like – like he started speeding up next to me.
…
Looney:               So we were going between 100 and 110.
…
Spalding: Yeah, because then he started – so technically he was going a bit faster at the end.
Looney:               Yeah, yeah.
Spalding:             ...
Looney: That’s why I was just like, ‘Are you letting me overtake or did you want to go in front’. Like I didn’t have a problem. Like, I just was trying to go around, because I seen – like I seen the van and like I can see that I’m catching up. Like whether you’re that far away or not, like yeah he was just going slow. Like, when I spoke to him he just seemed like he was off with the fairies…”
In her oral evidence, Ms Looney agreed that she recalled approaching Mr Richardson’s vehicle in the right hand lane. She believed that she was travelling under the speed limit at that time. She agreed that she had given a statement in which she said she was travelling at 110kmph, and that is what she recalled at the time she gave the statement. I formed the impression that Ms Looney was reluctant to admit that she was travelling in excess of the speed limit and contrary to her licence conditions. As a result, I have given her oral evidence about the speed at which she was travelling limited weight.
Ms Looney did not agree that she “slammed on [her] brakes” to reduce her speed dramatically after Mr Richardson sounded his horn. I am satisfied that she did, however, apply her brakes and slow her vehicle after she heard the sound of the horn.
Although she could not recall how far in front of Mr Richardson’s vehicle the van was travelling, she disagreed that it was 200-300 metres away.
Ms Looney disagreed that after Mr Richardson changed back into the right-hand lane she was travelling greater than the speed limit. She also disagreed that after he had merged back into the right-hand lane she tried to go around him, and that was why she “ended up on the grassy median strip”. She disagreed that she swerved back into the right lane to avoid an oncoming barrier.
Ms Looney’s evidence was that when Mr Richardson merged into the right lane she had good vision of where his vehicle’s indicators were. She disputed that she could not see them. She denied that she applied her brakes before the collision, stating that she had no reason to do so and that there was “no one in front of [her]”. Her evidence was that she veered before the collision as she “was trying to avoid him hitting [her] when he tried to fit in between [her] and the van and [her] right side of [her] car was … half on the road, half on the grass trying to give him space so he could fit in…”. She disputed that she was trying to overtake Mr Richardson on the grass median strip. She explained that her right two tyres were off the road and that her “whole vehicle was never on the grass”.
She agreed that Mr Richardson’s vehicle was “more or less beside” her immediately before the accident, when it was in the left lane. Her evidence was that Mr Richardson was “either going into the back of that car[6] or coming into me”. She agreed that the situation looked “dangerous”. Her evidence was that she didn’t have time to react to “every single little thing”. She attempted to move as much as she could without getting herself into a dangerous situation. Ms Looney’s evidence was that she “did what [she] thought was the best course of action for this tiny little space of time and an instant while we’re both travelling at high speeds, whether it was 100 [km] or 110 [km]”. She could not recall whether she applied her brakes at all prior to the collision.
[6] The car referred to is the van in the left lane.
She thought that at the time Mr Richardson merged into the right lane the van was two or three car lengths away.
Ms Looney has, in my assessment, given consistent evidence that the accident occurred during Mr Richardson’s attempt to merge into the right lane, as opposed to after he had merged fully into the right lane. I accept her evidence that, in response to Mr Richardson’s attempt to merge into the right lane, she moved her vehicle across the right lane, and partly off the marked roadway, in an attempt to give Mr Richardson’s vehicle “room”, and avoid a collision. She has consistently stated that Mr Richardson did not indicate his intention to merge from the left lane into the right lane. I accept her evidence in this regard.
Ms Looney has also given consistent accounts that involve Mr Richardson’s vehicle being in close proximity to the van in front of it in the left lane prior to him commencing to merge into the right lane. I consider Ms Looney’s evidence about the proximity of the van to Mr Richardson’s vehicle while it was in the left hand lane, before he merged, to be more reliable than Mr Richardson’s.
I accept Ms Looney’s evidence that she did not attempt to overtake Mr Richardson’s vehicle while her vehicle was partly in the right lane and partly on the verge, and after Mr Richardson had successfully merged into the right lane. I consider it improbable that she attempted to overtake Mr Richardson’s vehicle in this way. I find that it is more probable than not that Ms Looney moved her vehicle over to the right of the right-hand lane, so that the right wheels of her vehicle were for a time on the verge, to avoid Mr Richardson’s vehicle that was merging into the lane in which she was travelling.

Mr Balderston’s evidence

Mr Balderston gave a statement to the insurer’s investigator dated 4 January 2021. He confirmed that he was travelling in a vehicle driven by Ms Looney on the M7 at approximately 7.00pm on 2 December 2020. He was awake and checking his mobile phone. He heard a beeping sound and looked to his left, observing a vehicle with tinted windows immediately beside his vehicle.
He states that, without warning, the other vehicle began merging into the right-hand lane. The vehicle only just passed his vehicle when it made the change. In doing so, it clipped the front passenger’s side of the vehicle. Everything happened very quickly. He saw the other vehicle leave the road surface and onto the grass.
Attached to the statement is a sketch of the accident drawn by Mr Balderston depicting four phases. The first phase depicts Mr Richardson’s vehicle in the left lane with a van in front. Mr Balderston’s vehicle is in the right lane. The second phase shows Mr Richardson’s and Ms Looney’s vehicles alongside each other, with Mr Richardson’s vehicle having moved closer to the van in front of it. The third shows Mr Richardson’s vehicle merging from the left lane just behind the van, and directly in front of Ms Looney’s vehicle in the right lane. The fourth shows Mr Richardson’s vehicle at an angle of 90 degrees in front of Ms Looney’s vehicle in the right lane.
In his oral evidence, Mr Balderston said that he may have seen Mr Richardson’s vehicle some 200 – 300 metres away, before he sounded his horn. He recalled that he was looking at his mobile phone and looked up after hearing the horn. He also recalled seeing a white van in the left lane, 50 to 100 meters in front of Mr Richardson’s vehicle. He saw Mr Richardson’s vehicle move into the left lane to let his vehicle pass in the right lane. Mr Richardson then “pull[ed] back into the righthand lane, and pulled [into] us”.
Mr Balderston’s evidence was that Mr Richardson did not indicate before moving back into the right lane. His evidence was that just prior to the collision “we went over the little noisy lane to wake you up, and then our … wheel was on the grass, maybe 30, 40 centimetres, and then everything happened.”
He disagreed that the vehicle in which he was travelling was partly on the grassy median strip in an attempt to over take Mr Richardson’s vehicle. His evidence was that “[Mr Richardson] was going to hit the white van, and pulled into our lane, and the rear of his car hit the front of our car, and he spun out”.
While he thought Ms Looney “had cruise control on, on a hundred”, Mr Balderston agreed that he did not know at what speed his vehicle was travelling as it overtook Mr Richardson’s vehicle after it had merged into the left lane. He agreed that his vehicle was travelling faster than Mr Richardson’s as they passed it. He agreed that they had “caught up” to Mr Richardson’s vehicle. Mr Balderston’s evidence was that he “wouldn’t have a clue” and that he was “not sure” whether Ms Looney applied the brakes before the accident, and that “everything happened like the blink of an eye”.
Mr Balderston’s evidence was that, given the presence of the van in the left lane, if Mr Richardson didn’t move over to the right-hand lane he would have rear-ended the van. He agreed with the proposition that it was obvious that in order to avoid colliding with the van, Mr Richardson would either have to slow down considerably or change lanes.
Mr Balderston disagreed that, in the circumstances, it would have been reasonable for his vehicle to slow down or take some evasive action. In his view, there was no time to slow down; had there been, they would have. He disputed that Mr Richardson had changed safely from the left-hand lane to be wholly within the right-hand lane before the accident. His evidence was that Mr Richardson was either going to hit the van or pull into his vehicle.
Mr Balderston’s evidence as to the proximity of Mr Richardson’s vehicle to the van, while both were in the left lane, has been consistent. I consider that his evidence in this regard should be given greater weight to that of Mr Richardson.

The expert evidence

Mr Richardson relies on a report of Grant Johnston, Forensic Consulting Engineer, dated 15 July 2022. The insurer relies on a report of William Keramidas, an expert in Traffic and Transport Engineering, Forensic Engineering and Collision Reconstruction, dated 18 January 2023. There is also a joint report. There are many matters agreed between the experts. The experts conclude neither scenario can be excluded but each prefers their own conclusion; Mr Johnston that Mr Richardson’s is more likely and Mr Keramidas that Ms Looney’s is more likely.

Mr Johnston’s report

In Mr Johnston’s opinion, “this incident” occurred over an extended period of many seconds meaning that numerous deliberate decisions were made about the control and positioning of the vehicles.
Mr Johnston thought that the incident “ha[d] all the elements of being a likely road rage type situation”. In his opinion, it was far more dangerous for Ms Looney to remain adjacent to Mr Richardson’s vehicle and to move partly onto the grassed median that it would have been to brake and to allow Mr Richardson “unhindered access into lane 2”. Assuming that this is what transpired, in his opinion this action was not an avoidance option, and was more likely a deliberate attempt to remain adjacent to Mr Richardson’s vehicle because Ms Looney did not want his vehicle to get in front of her vehicle.
In Mr Johnston’s opinion, if the matters referred to in the preceding paragraph are accepted, and Mr Richardson’s vehicle did clip the front of Ms Looney’s vehicle when it moved into the right lane, it was at least partially because Ms Looney was trying to maintain her position to prevent Mr Richardson changing lanes rather than driving cautiously or defensively and preventing an accident. At the same time, if this did occur, and Mr Richardson continued to attempt a lane change while seeing that Ms Looney was not slowing and yielding her position, then he was also driving in an unsafe manner in continuing to force the lane change. In Mr Johnston’s opinion, Mr Richardson should have slowed back into the left lane.
I do not accept that Ms Looney deliberately attempted to remain adjacent to Mr Richardson’s vehicle because she did not want his vehicle to get in front of her vehicle.
Mr Johnston thought that the damage to Ms Looney’s vehicle indicated a reasonably momentary contact as there was no significant panel distortion or scratches consistent with a prolonged contact or a significantly different relative speed. In his opinion, at the speeds at which the vehicles were probably travelling, a force at the rear right of Mr Richardson’s vehicle would probably have forced that vehicle to commence a rotation in a clockwise direction. It would have started rotating almost immediately from impact and continued to rotate from that position and at a similar rate on the road and then along the median strip.

In Mr Johnston’s opinion, considering the likely slip and heading angle of the vehicle as it moved onto the median strip, its alignment relative to the longitudinal axis of the road at impact must have been at an angle somewhat less than 30 degrees if it started rotating clockwise from this impact and had reached about 30 degrees at the time it left the roadway. This, in Mr Johnston’s opinion, tended to suggest that an alignment parallel to the longitudinal axis of the road, or straight, was more likely than an angle associated with the vehicle changing lanes from left to right.
In Mr Johnston’s opinion, the versions of the accident provided by both drivers are “by themselves plausible”. However, as they are different, at least one of them must be wrong in at least some respects. In his opinion, the physical evidence in the form of the damage profiles is completely equivocal on the information provided: minor damage to the Mitsubishi and no identifiable damage on the Holden due to the first impact as a result of masking by subsequent damage or the missing body panel. The download, like the damage, confirmed that the initial impact was minor and that both vehicles were travelling at a very similar relative longitudinal velocity when they came together, and that there was no lateral force which caused more than an 8kmph change in velocity of the Mitsubishi.
In Mr Johnston’s opinion, the physical evidence provided by the tyre marks left by the Holden as it moved onto and across the median strip indicates that the position of the Holden was probably closer to the position Mr Richardson has claimed, that is within the right lane, although Ms Looney could still be partially correct, in that Mr Richardson may have entered her lane, but the contact between the vehicles was towards the end of Mr Richardson’s lane change when he had significantly straightened. While Mr Richardson had not initially intruded as close to Ms Looney’s vehicle as she suggested, she may have closed on his vehicle during the conduct of the lane change.
In Mr Johnston’s opinion, the physical evidence suggests that if Ms Looney had slowed even marginally, she would probably have avoided conflict with Mr Richardson’s vehicle completely, and avoided the collision. Mr Richardson’s vehicle could not, in his opinion, have reached its possible position at impact instantaneously, as a normal lane change to even the minimum likely position would have taken at least three seconds. In his opinion, that allowed Ms Looney “plenty of time” to apply her brakes, as a perception response in those circumstances would only take around one second, and given that by her own description she had already identified that Mr Richardson was closing on a slower moving vehicle and would need to slow or change lanes.
If Mr Richardson had made the lane change as suggested by Ms Looney, he should have been more aware of where Ms Looney’s vehicle was, and that it was obviously too close behind him, even allowing for the fact that he had either fully or, at a minimum, almost wholly completed the change before impact.
Considering all of the circumstances and the physical evidence, it is not, in Mr Johnston’s opinion, possible to suggest what exactly happened. However, based only on the physical evidence, the version of Mr Richardson, relative to his alignment along the road, would appear to be closer to the actual event than the version of Ms Looney, although somewhere between the two scenarios, biased more towards Mr Richardson’s version, appeared the most likely.
Further, in his opinion, Ms Looney, by either account, appears to have been the one in the position to perceive the conflict most easily and to also most easily take action to avoid the impact.

Mr Keramidas’ report

In Mr Keramidas’ opinion, the damage to the vehicles alone, particularly given the damage to the Holden, cannot be used to determine with any level of certainty which of the alternative configurations was more likely. In his opinion, it is apparent that regardless of which version of events is accepted, there has been a misunderstanding or dispute between the two drivers which ultimately led to both vehicles being in close proximity to each other when there was no need for that to be the case.
During the collision sequence, misunderstandings occurred, and poor decisions were made by both drivers. It is apparent, in Mr Keramidas’ opinion, that regardless of the speed at which each of the vehicles was travelling, Ms Looney was closing on Mr Richardson’s vehicle that was ahead of hers. As both vehicles were at that stage travelling in the right lane, a number of things could happen at that point, including Ms Looney overtaking Mr Richardson on the left or right (if Mr Richardson moved over).
As Mr Richardson was not overtaking a vehicle at the time Ms Looney’s vehicle approached, he should have been travelling in the left lane according to the Road Rules. This technical breach of the keep left unless overtaking rule created the first misunderstanding.
It appears, based on Ms Looney’s statement, that she formed the belief that Mr Richardson changed lanes into the left lane to allow her to overtake without impeding her progress. Unbeknown to her, Mr Richardson (according to his version) only changed into the left lane once he became concerned about the closing speed, and therefore overall speed, of Ms Looney’s Mitsubishi approaching from behind. At this point, had Mr Richardson done nothing further, in all probability, Ms Looney would have overtaken both his vehicle and the van travelling in the left lane, and nothing would have occurred. Instead, Mr Richardson chose to activate his vehicle’s horn on a number of occasions to express his displeasure at Ms Looney’s manner of driving.
In Mr Keramidas’ opinion, it is not possible to say whether the initial beeping of the horn by Mr Richardson was done in an aggressive manner or whether he then picked up speed to maintain pace with that vehicle to continue the chastising. In his opinion, this act was a poor decision on the part of Mr Richardson. From Ms Looney’s perspective, having been “beeped” by Mr Richardson in the adjacent lane, there was no need for her to respond (if she did), and she could have continued her journey without any further incident.
What is apparent, in his opinion, is that after this initial interaction, and for some brief period, the two vehicles appear to have been travelling side-by-side and matching speed. If Ms Looney’s version of events is accepted, that in the process of the “engagement” with Mr Richardson, they were rapidly approaching the rear of the van travelling slower in the left lane, a decision would need to be made by both Ms Looney and Mr Richardson as to how to respond. In particular, Mr Richardson would have been faced with the decision of either to slow behind the van travelling ahead of him or attempt to merge into the right lane, between the van and Ms Looney’s Mitsubishi. The physics of the impact between the two vehicles suggests that he took the latter approach and, in the process, collided with the Mitsubishi. On that basis alone, the cause of the collision was the merging of the Holden from the left lane to the right lane when it was unsafe to do so.
On realising that Mr Richardson was moving to the right, Ms Looney would have had to react as a reflex whether to brake or steer so as to avoid the Holden colliding with her vehicle. Ultimately she decided to steer, although in hindsight, had she known that Mr Richardson was intending a full lane change, braking would have been a better option. If, as indicated by Ms Looney, Mr Richardson was merely trying to scare her, creating lateral space between the two by deviating to the right (noting there was a metre or so beyond the edge-line of asphalt) could equally be considered as appropriate in the circumstances. As far as Mr Richardson was aware, he was changing lanes and formed the belief that he had indicated his intention at the time. His decision to attempt the lane change when he did was a poor decision by him and contrary to the Road Rules. Had he merely slowed and waited for the Mitsubishi to overtake the van, the collision could have been avoided.

Joint expert report

The experts prepared a joint report dated 29 March 2023. The report records that both experts discerned two different scenarios for the pre-crash and point of impact circumstances. It is stated that the lateral positioning of the vehicles in Mr Richardson’s scenario are slightly more to the left of the lane in Mr Keramidas’ version than in Mr Johnston’s version. The experts agree that this is of itself largely inconsequential in terms of which scenario should be preferred.
It is agreed that the general area of collision is within the southbound carriageway approximately 200 metres south of the Chandos Road overpass. It is also agreed that the visible tyre marks describe the agreed post impact motion of Mr Richardson’s vehicle. The rest position of Mr Richardson’s vehicle is agreed as being on the northbound lane straddling the median hard shoulder and facing in an easterly direction.
The damage to Mr Richardson’s vehicle is agreed based on the police photographs, and is noted to be extensive due to the post impact collisions and rollover of the vehicle. Therefore, in the context of identifying specific trace evidence from the initial engagement with Ms Looney’s vehicle, the damage is agreed to be “dirty” as a result of secondary damage and a missing rear bumper cover.
It is noted that a CDR download of Ms Looney’s vehicle failed to identify a recorded event. It is therefore agreed that any interaction must have been under the reporting threshold for that particular vehicle, which the data limitation of the CDR report indicates is around 8kmph Delta-v. It is agreed that, based on the police photographs, the damage to this vehicle is relatively minor and constrained to the front left corner in the form of scratches/scrapes and possible displacement of the front bumper cover. Neither expert was able to draw specific conclusions about directionality of these marks as a consequence of the quality of the images.
It is agreed by the experts that due to the nature of the damage, determination of impact configuration based on the physical evidence is not possible.
It is agreed that the vehicles moments before impact were travelling at a not significantly dissimilar speed and generally parallel to each other. It is agreed that the front left corner of Ms Looney’s vehicle and the right rear corner of Mr Richardson’s vehicle came together predominantly in a lateral (side to side) orientation. In order for this to occur one and/or both vehicles have moved towards the other laterally. The damage is insufficient to determine of itself which vehicle was moving laterally, or which vehicle may have been moving faster than the other longitudinally.
The post-impact trajectory of Mr Richardson’s vehicle is known, but it is agreed that this does not commence until a short time after the initial engagement when it reaches the softer ground of the median island and begins to leave visible tyre marks. This therefore means that although the experts agree that some interpretation can be made from these post-impact marks, the gap between the point of impact and the start of the visible marks introduces sufficient uncertainty that it is agreed that a definitive solution cannot be attained.
It is agreed that whatever mechanism was involved, there was a lateral force applied to the right rear corner of Mr Richardson’s vehicle that induced a clockwise rotational force onto that vehicle.
Mr Johnston and Mr Keramidas agree that both scenarios could hypothetically generate such a directional force. They also agree that the evidence suggests that this force caused the loss of control of Mr Richardson’s vehicle and the subsequent collisions, and in the absence of further evidence it is not possible to opine anything with regards to his potential ability to arrest the loss of control.
The only point of disagreement between the two experts is the likelihood of one scenario being more probable than the other, that is, which vehicle was turning in.
The report records that the key differentiating factors in the two camps is that the opposing driver turned in while they were essentially travelling straight and that the opposing driver was travelling faster at the time.
The report records that Mr Keramidas suggested that each party’s version as to what happened was plausible, and that Mr Johnston agreed that potentially both versions are plausible, and that both versions indicate that there was an “unusual” interaction occurring between the crash participants prior to the actual collision outside of normal driving behaviour.
Mr Keramidas expressed the opinion that the scenario as presented in Ms Looney’s version is more probable on the following basis: a turn in to the right by Mr Richardson so that the rear right side of his vehicle collided with Ms Looney’s front left would generate the necessary impact forces to start the rotation of the Holden while applying some sideways force on the Mitsubishi. Impact to the front of the Mitsubishi would more likely be recoverable. As the Holden was travelling faster than the Mitsubishi, after impact the Holden would disengage then continue ahead of the Mitsubishi as it commences and then continues to rotate, resulting in the marks on the centre median. This scenario satisfies all of the observed evidence.
Mr Keramidas is of the opinion that, should the Mitsubishi have turned into the Holden while travelling at the same speed, side by side, a very similar dynamic could have generated. Mr Richardson did not indicate this however, stating instead that the Mitsubishi had a higher speed as it caught up about 30 metres before impact occurred. In that case, with the Mitsubishi travelling faster and colliding into the rear of the Holden, the expected dynamic would be more akin to a Precision Immobilisation Technique (PIT) manoeuvre. This would have resulted in a broader impact across the front of the Mitsubishi and a “spin” on the Holden, as the Mitsubishi would be tending to “push” it along the road.
Mr Johnston disagreed with the suggestion that the scenario of the Holden “turning in” is the more likely scenario based on the post impact motion demonstrated. It is his opinion that the outcome of the incident is more consistent with the Mitsubishi “turning in” and initiating a partial PIT type manoeuvre.
Both experts conclude neither scenario can be excluded but each prefers their own on the balance of probabilities.

Other evidence

The joint bundle contains a statement of Senior Constable Smith dated 3 December 2020, the transcript of interview with Senior Constable Spalding and Brooksight Investigations on 20 April 2021, photographs of the accident scene and the vehicles involved in the accident, together with police and ambulance reports. I have considered this material, together with the other material in the joint bundle.
I note that the COPS report case narrative records that:
“After liaising with the Crash Investigation Unit it is…apparent to police that both versions provided by the drivers are plausible…”.
No action was taken by police against either driver.

SUBMISSIONS

Mr Richardson relies on written submissions dated 24 July 2023 and the insurer relies on written submissions dated 8 August 2023. The written submissions provided by the parties are updated and consolidated submissions, and incorporate all prior written submissions relied on by the parties. The parties also made oral submissions at the hearing.

Mr Richardson’s submissions

In his written submissions dated 24 July 2023, Mr Richardson argues that the accident was caused neither wholly nor mostly by his fault. The submissions record his version of events. At [18], it is argued that due to a slower moving van in lane 1, Mr Richardson proceeded to merge back into lane 2 (having earlier merged into lane 1), which he alleges he did safely. This submission is inconsistent with Mr Richardson’s oral evidence that his decision to merge into the right lane had nothing to do with the van.
Mr Richardson’s case, as articulated in his written submissions, is that Ms Looney’s vehicle began to veer to its right onto the hard shoulder and the grass median strip, and that the tyres of her vehicle appeared to make contact with the grass median strip. At this point Ms Looney’s vehicle suddenly veered left in an attempt to veer back onto the roadway, and the front left side bumper of the vehicle collided with the rear right side bumper of his vehicle.
It is argued that Ms Looney’s version of the accident is improbable. Mr Richardson submits that prior to merging into the right lane, he indicated his intention to change lanes. In this regard he refers to his record of interview with police, in which he stated that he was “sure he put an indicator on to get to the right lane”. (In my view, this account is equivocal in terms of whether Mr Richardson indicated before he changed lanes.) He argues that he activated his indicator for long enough to provide sufficient warning to the other driver.
Mr Richardson argues that it would not be unreasonable to expect Ms Looney to anticipate that he would have likely wanted, or needed, to change lanes. In his submission, a “reasonabl[y] skilled driver” at this point would identify the potential risks and would slow and yield backwards to allow the adjacent vehicle to change lanes safely. In these circumstances, he submits that Ms Looney was aware of a potential lane change and should have had time to avoid the collision.
Mr Richardson submits that he passed Ms Looney’s vehicle at a sufficient distance to avoid a collision and did not obstruct the path of her vehicle. He argues that he successfully completed his lane change before the collision occurred.
It is argued that Mr Richardson kept a proper lookout by regularly observing the traffic around his vehicle, particularly in front of his vehicle in the left lane (the van) and checking the upcoming traffic in the right lane (Ms Looney’s vehicle) by looking in his rear-view mirror. He argues that he overtook Ms Looney’s vehicle when it was safe to do so. He submits that he had a clear view of any approaching traffic and that he assessed it was safe to overtake Ms Looney’s vehicle before merging.
Mr Richardson submits that Ms Looney failed to keep a proper lookout and breached regulations 135, 126 and 145 of the Road Rules. In his submission, Ms Looney failed to take evasive action to avoid a collision with his vehicle. He argues that she conducted a highly unexpected, dangerous and illegal manoeuvre which caused the collision.
In the event that Ms Looney’s version of events is accepted, Mr Richardson argues that her vehicle failed to keep a safe distance when travelling behind his vehicle. In his submission, after noticing the slower moving van ahead in the left lane, Ms Looney should have braked and slowed down.
Mr Richardson argues that, from Ms Looney’s perspective, it was not unexpected for her to expect that a driver in his situation would have likely wanted or needed to change lanes. Had she kept a proper lookout and maintained a safe distance behind his vehicle, the collision would have been avoided. Furthermore, had Ms Looney not conducted “a dangerous and illegal manoeuvre” of driving on the grass median strip, the collision would have been avoided.
Mr Richardson alleges that Ms Looney breached regulation 145 of the Road Rules (which provides that a driver being overtaken must not increase speed until the first driver has passed the other driver, has returned to the marked lane where the other driver is driving, and is a sufficient distance in front of the other driver to avoid a collision) and that the breach resulted in her causing the collision.
At [61] of his written submissions, Mr Richardson sets out the facts he submits should be found. On the basis that those facts are found, it is argued, in effect, that the accident was not caused by any fault on his part, and was caused by the fault of Ms Looney. Accordingly, it is argued that the insurer should not have ceased payments of statutory benefits to him.

In oral submissions, the claimant argued that his account of the accident should be accepted and, if it is, the accident was not caused by his fault. It was argued that Mr Balderston’s version, involving the accident occurring moments after Mr Richardson had merged into the left lane, should not be accepted. It was also argued that little weight should be given to Ms Looney’s evidence about distance, time, and reaction times. It was submitted that she was travelling in excess of the speed limit.
If his version is not accepted, Mr Richardson argued that, in circumstances where she knew or ought to have known that Mr Richardson’s vehicle was closing on the van in the left lane, a prudent driver in Ms Looney’s position would brake and slow down. It was submitted that Ms Looney was traveling too fast given the prevailing circumstances. There was, it was argued, a dangerous situation and Ms Looney failed to avoid it. It was submitted that Ms Looney had a “perfect view” of the van and Mr Richardson’s vehicle. She took no evasive action until he merged into the right lane. In those circumstances, Mr Richardson submitted that there was more “fault” on the part of Ms Looney.

Insurer’s submissions

The insurer relies on written submissions dated 8 August 2023. The submissions make reference to the conflicting versions of how the accident occurred. The submissions also record that in their joint expert report, Mr Johnston and Mr Keramidas confirm there was no available physical evidence to determine which version was more likely to have occurred, other than tyre marks on the grass median strip. It was noted that neither expert was able to draw specific conclusions about the directionality of the minor scratch marks on the front corner of the Ms Looney’s vehicle. Further, it is noted that the experts agreed that each party’s version was plausible.
For the reasons set out at [21], the insurer submits that Ms Looney’s account would be preferred. The evidence that underpins this submission is identified and addressed in the submissions.
The insurer submits that Mr Richardson’s version of the circumstances of the accident has significantly changed over time. The initial account he provided to the investigating police officer on the day of the accident asserted that Ms Looney sped up to prevent him from merging into the right-hand lane. In this regard, he asserted that “the other driver wouldn’t let me in to her lane. She sped up to block me.” In the insurer’s submission, it is impossible to reconcile this version with Mr Richardson’s subsequent assertion that he had successfully completed his change of lane “with ease” and “with no difficulties” such that when he had completed his lane change he was able to observe the insured in his rear view mirror more than 20 metres behind his vehicle.
The insurer argues that Mr Richardson decided to suddenly merge into the right-hand lane because he was travelling behind a van in the left-hand lane which was travelling slower than his vehicle. The insurer submits that his explanation that he decided to change lanes in part to avoid congestion at the M4 exit is, at the very least, unconvincing. Apart from the fact the accident occurred after Mr Richardson had travelled along the M7 well past the M4 exit there is no evidence of any congestion at the time of the accident.
The insurer submits the Commission would prefer the insured driver’s evidence to that of Mr Richardson, Ms Whitton, and his son. It is argued that Ms Looney’s evidence is corroborated by the contemporaneous evidence of Mr Balderston. Although Mr Richardson asserts that the van was “some distance away” when he changed lanes, the insurer submits that there should be a finding that Mr Richardson chose to re-enter the right-hand lane when he found himself driving behind a slower moving van ahead of him, as depicted in the sketch diagrams completed by Ms Looney and Mr Balderston.
It is argued that Mr Richardson indirectly acknowledged his close proximity to the van at the point where he attempted to change lanes. In this regards, the insurer points to his ERISP with Senior Constable Spalding on 20 January 2021, which records that, when he was asked if he took any evasive action prior to the collision, he responded “I knew I couldn’t go over to the left lane … because of the other car.”
Turning to the expert evidence, the insurer submits that the opinion expressed by Mr Keramidas should be preferred as to which of the two vehicles turned in, namely Mr Richardson’s vehicle.
The insurer submits Mr Johnston does not provide any cogent explanation for his opinion that it was the insured’s vehicle which more than likely turned in to Mr Richardson’s vehicle, and argues that little weight should be given to Mr Johnston’s opinion for the reasons set out at [96] of its written submissions.
The insurer argues that Ms Looney’s version is more inherently plausible, as it maintains a more likely scenario which simply involves Mr Richardson attempting to re-enter the right-lane because a slower moving vehicle impeded his path, at a time when there was insufficient time and space to do so.
At [100] the insurer sets out the facts it says should be found. It is argued that, even if it is found that he had activated his indicator, there is no evidence that it was activated in sufficient time to allow Ms Looney to take any action to avoid the collision.
The insurer submits that Mr Richardson failed to exercise reasonable care by attempting to change back into the right-hand lane when there was insufficient time and space to do so safely, without any prior warning. Further, it is argued, he failed to maintain a safe distance when overtaking, contrary to regulation 144 of the Road Rules, failed to indicate his intention to change lanes contrary to regulation 48 of the Road Rules, and generally failed to keep a proper lookout prior to attempting a lane change. In the insurer’s submission, Mr Richardson’s breach of duty was causative of the accident. In these circumstances, the accident was wholly caused by Mr Richardson, or alternatively was mostly caused by his fault within the meaning of the MAI Act.
It is argued that a finding should be made that there was no breach of any duty of care by Ms Looney. Issue is taken with Mr Johnston’s opinion that:
“…it would not be unreasonable to expect that a driver in the situation of [Mr Richardson] would likely want or need to change lanes and a reasonably skilled driver at this point would identify the potential risk and would slow down and yield backwards to allow the driver in the adjacent lane to change lanes safely.”
This proposition, it is argued, is contrary to well-established authority including a decision of the High Court: Byrnes v Snare (1986) 60 ALJR 507 at 508; Tromp v Liddle (1941) SR (NSW) 108.
It is argued that, in circumstances in which Mr Richardson gave no indication of his intention to merge into the right-hand lane, if Ms Looney had observed him gaining on the slower vehicle in front of him, she was not obliged to slow in anticipation that he might suddenly and without warning attempt to merge into her lane. It is argued that she would have been entitled to assume that he would reduce his speed until it was safe to change lanes if he wished to do so.
However, it seems to me that, given both the findings that I have made and the findings that follow later in these reasons, the circumstances in which the accident occurred involved more than Mr Richardson’s act of merging from the left lane to the right lane without indicating. Whether or not Ms Looney failed to exercise reasonable skill and care should, in my view, be determined by reference to the totality of the circumstances that led up to the collision, rather than being limited to Mr Richardson’s merge from the left lane into the right lane.
The insurer argues that Ms Looney’s actions should not be judged with the benefit of hindsight but in the ‘agony of the moment’: see Stuart v Walsh [2012] NSWCA 186 at [61] per Tobias AJA (Bathurst CJ and Basten JA agreeing) and Leishman v Thomas (1957) 75 WN (NSW) 173 at [175].
In Stuart, Tobias AJA found, at [63] that “[l]ike the position in Abdallah[7], Mr Stuart found himself in a situation which was not of his making.” At [61] the following passage in Leishman was referred to:[8]
"This so called principle of acting in the 'agony of the moment' is merely an application of the ordinary rule for ascertaining whether or not the conduct of any party has been negligent by looking to all the surrounding circumstances and ascertaining whether the defendant behaved in such a fashion as a reasonably prudent man, in the light of those circumstances, would not have behaved. It is a circumstance, and one possibly of great importance, that the defendant, charged with negligence, may have been forced to act in a sudden crisis or emergency, unexpected and unheralded, without that opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had done something else. The jury are required to judge his conduct in the light of the happenings of the moment, and a man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so-called 'agony of the moment', he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise."
[7] A reference to Abdallah v Newton (1998) 28 MVR 364 at [365]-[366].
[8] It is also recorded in Stuart at [62] that this passage from Leishman was quoted with approval by Stein JA, with whom Meagher and Beazley JJA agreed, in Abdallah.
As will be seen, Stuart and Leishman involved different facts to those that I have found in these proceedings. In Vairy at [2] Gleeson CJ and Kirby J observed that “decided cases in this area are fact-sensitive, and it is a sterile exercise, involving a misuse of precedent, to seek the solution to one case in decisions on the facts in other cases.”
The insurer submits that, contrary to Mr Richardson’s assertion, Ms Looney’s response to his sudden attempt to re-enter the right-hand lane was a reasonable response.
It is argued that had Mr Richardson simply slowed and waited for Ms Looney’s vehicle to overtake the van the collision would have been avoided. The insurer argues that such action was not only a reasonable course of action for him to take, it was also a requirement under clause 148(1) of the Road Rules.
The insurer argues that the fact Ms Looney responded to Mr Richardson’s sudden and unexpected change of lanes by instinctively braking and veering to her right, and thereby travelling onto the central median strip, did not amount to an unreasonable response to his action nor constitute a breach of regulation 135 of the Road Rules. For the same reasons, if as Ms Looney maintains, Mr Richardson suddenly changed lanes into the path of her vehicle without any prior warning of his intention, consideration of regulations 126 and 145 of the Road Rules cannot arise.
In oral submissions, the insurer reiterated its argument that the accident occurred because Mr Richardson sought to merge into the right lane from the left lane when it was not safe for him to do so. He was, in the insurer’s submission, either not keeping a proper lookout or trying to force his way in.
It was argued that Ms Looney had given consistent, credible, and thorough accounts of what occurred, from the very moment she provided an account at the scene of the accident. It was argued that drivers are entitled to assume people will obey the road rules, unless something specifically put them on notice. In this case, it was submitted, the emergency came on suddenly.
It was argued that Ms Looney and Mr Balderston remained unshaken as to the general circumstances of the accident, the relevant positions of the vehicles, that Mr Richardson merged without warning, and that Ms Looney took evasive action in response. The insurer submitted that Ms Looney’s response was exactly what would be expected from a reasonable person confronted with a vehicle merging into their lane from the left. Given the presence of the van, it was argued that it was incumbent on Mr Richardson to slow before he put himself in the position that he needed to merge. He could, it was argued, have washed off his speed by lifting his foot off the accelerator.
The insurer argued that Mr Richardson’s version, that Ms Looney attempted to overtake him on the grass verge, was farfetched and fanciful.

FINDINGS – CIRCUMSTANCES IN WHICH THE ACCIDENT OCCURRED

The parties have prepared a statement of agreed facts. Among other matters, the parties agree that: Mr Richardson was involved in a motor vehicle accident; the accident occurred on the southbound carriageway of the M7 Motorway approximately 200 metres south of the Chandos Road overpass; prior to the accident Mr Richardson and Ms Looney were travelling in a southerly direction along the M7 Motorway; prior to the accident both vehicles were travelling at a not significantly dissimilar speed and were generally parallel to each other; the front left corner of Ms Looney’s vehicle and the right rear corner of Mr Richardson’s vehicle came together predominantly in a lateral orientation; in order for this to occur one and/or both vehicles have moved towards the other laterally.
The parties agree that the experts qualified by the parties agree either version of events was plausible and that which version to be accepted was a matter for evidence.
In addition to the findings made earlier in these reasons, I make the following findings:
(a)    Mr Richardson was involved in a motor vehicle accident on the M7 Motorway (Motorway) at Horsley Park at approximately 7.00pm on 2 December 2020.
(b)    He had left home approximately 15 minutes before, and had entered the Motorway at the Woodstock Road entrance.
(c)    He entered the Motorway in the left lane, and shortly after moved to the right lane.
(d)    Prior to the accident, Mr Richardson was travelling in a southerly direction along the Motorway.
(e)    Prior to the accident, Ms Looney was travelling in a southerly direction along the Motorway.
(f)    The traffic was light.
(g)    There are two lanes for vehicles travelling in a southerly direction on the Motorway at the location where the accident occurred.
(h)    While Mr Richardson’s vehicle was in the right lane, he noticed the vehicle driven by Ms Looney approaching in the right lane when it was approximately 50 metres behind him.
(i)    At the time he first saw Ms Looney’s vehicle, Mr Richardson’s vehicle was travelling at approximately 100kmph.
(j)    As Ms Looney’s vehicle was approaching Mr Richardson’s vehicle in the right lane, Ms Looney’s vehicle gained on Mr Richardson’s vehicle. Given my finding that Mr Richardson’s vehicle was travelling at approximately 100kmph, and that Ms Looney’s vehicle was gaining on his, I infer that Ms Looney was travelling in excess of 100kmph at this time. I do not consider that the evidence allows me to make a finding about the exact speed at which Ms Looney’s vehicle was traveling as it approached, and subsequently passed, Mr Richardson’s vehicle. While I accept that Ms Looney’s vehicle was travelling faster than his, I do not accept Mr Richardson’s estimate of Ms Looney’s speed (130-140kmph); he is not an expert. His opinion about the speed of Ms Looney’s vehicle must be considered to be an estimate. However, I find that it is more probable than not that Ms Looney’s vehicle was travelling at a speed of at least 110kmph.
(k)    As Ms Looney’s vehicle was gaining on his, Mr Richardson indicated his intention to move into the left lane, and then moved his vehicle wholly into the left lane, to let Ms Looney’s vehicle pass his.
(l)    Ms Looney saw Mr Richardson’s vehicle move from the right lane into the left lane. She thought he did so to allow her to overtake him.
(m)     Ms Looney first saw Mr Richardson’s vehicle when it was in front of her vehicle in the right lane. I find that she saw his vehicle merge into the left lane.
(n)    After he merged into the left lane, Mr Richardson’s vehicle was travelling at a speed of approximately 100kmph.
(o)    As Ms Looney’s vehicle drew along side his vehicle, Mr Richardson sounded the horn of his vehicle.
(p)    Mr Richardson sounded his horn to indicate to the driver of the other vehicle that he thought they should “slow down”.
(q)    Ms Looney applied her brakes when she heard the horn sounded.
(r)    As a result of applying the brakes, Ms Looney reduced the speed of her vehicle to below 100kmph and not less than 80kmph.
(s)    At this time Mr Richardson’s vehicle was travelling at approximately 100kmph in the left lane. That being the case, his vehicle (in the left lane) caught up to Ms Looney’s vehicle (in the right lane).
(t)    There was a van travelling in the left lane, in front of Mr Richardson’s vehicle.
(u)    The van was travelling at a speed of less than 100kmph.
(v)    Mr Richardson commenced merging from the left lane into the right lane because he was closing in on the van.
(w)   When Mr Richardson began to merge, Ms Looney’s vehicle was wholly in the right lane.
(x)    At the time he began to merge from the left lane into the right lane, the van was approximately two to three car lengths in front of him.
(y)    Mr Richardson did not indicate before commencing to merge into the right lane.
(z)    Mr Richardson knew, or ought to have known, that when he began to merge into the right lane, Ms Looney’s vehicle was travelling in the right lane, in close proximity to his vehicle.
(aa)    At the time he began to merge there was insufficient time and space in order to merge safely given the presence of Ms Looney’s vehicle in the right lane. Mr Richardson knew or ought to have known that this was the case.
(bb)    When Mr Richardson commenced merging into the right lane, Ms Looney responded by veering to the right and in so doing she partly moved onto the grass median strip and then straightened her vehicle.
(cc)     Mr Richardson’s vehicle continued to move into the right-hand lane and the right rear of his vehicle collided with the left front corner of Ms Looney’s vehicle.
(dd)    The vehicles came together predominantly in a lateral orientation.
(ee)    When the collision occurred the right hand wheels of Ms Looney’s vehicle were on the shoulder or verge, outside the marked solid white line on the right of the lane that delineates the edge of the right lane. The rest of her vehicle was in the right lane.
(ff)    The impact was in approximately the middle of the right lane.
(gg)    The impact dynamics caused Mr Richardson’s vehicle to commence to yaw in a clockwise direction which continued after the vehicle left the road surface and entered the grass centre median. The vehicle then rolled for two full revolutions.
I prefer Mr Keramidas opinion that it was more likely Mr Richardson’s vehicle turned into Ms Looney’s vehicle while travelling at a greater speed, and that the post-impact furrow marks in the centre of the median strip were more consistent with an attempted lane change manoeuvre with Mr Richardson travelling faster than Ms Looney.
I accept Mr Keramidas’ opinion that it was improbable that Ms Looney’s vehicle turned into Mr Richardson’s vehicle because of the absence of any evidence of sustained engagement to the full front of Ms Looney’s vehicle and the departure angle of Mr Richardson’s vehicle from the roadway, as evidenced by the furrows left by Mr Richardson’s vehicle on the grass section of the median strip. I also accept his opinion that if Ms Looney’s vehicle turned into Mr Richardson’s vehicle, his vehicle would have spun rather than moving in a circular path with rotation. I accept his re-stated basis for this opinion as set out in the joint report.
I do not accept Mr Johnston’s opinion that it was Ms Looney’s vehicle which more likely turned in to Mr Richardson’s vehicle. I otherwise give his opinion little weight for the reasons contained in the insurer’s submissions at [96].

Findings – fault

Both parties rely on purported breaches of the Road Rules in support of their respective submissions that the accident was caused by the fault of the other. The determination of what reasonable care requires in any given case is not resolved by asking whether the relevant conduct was or was not prohibited by one of those rules. Nevertheless the fact that particular conduct is prohibited may in some cases be a factor pointing to the conclusion that reasonable care was not taken.[9]
[9] See Ryan v Workers Compensation Nominal Insurer [2020] NSWCA 38 at [42], Verryt v Schoupp [2015] NSWCA 128 at [4], Sibley v Kais [1967] HCA 43, Kollas v Scurrah [2008] NSWCA 17 at [76], Sharpe v Gordon; QBE Workers Compensation NSW (Ltd) v Gordon [2006] NSWCA 347 at [5]–[6]; and Penrith City Council v East Realisations Pty Limited (in liq) [2013] NSWCA 64 at [53]–[54].
Given the facts that I have found with respect to the circumstances in which the accident occurred, I am satisfied, and I find, that Mr Richardson failed to exercise reasonable care by failing to maintain a safe speed and distance behind the van, merging into the right lane when it was not safe to do so, failing to indicate his intention to change lanes, and failing to keep a proper lookout prior to attempting a lane change.
Maintaining a safe speed and distance behind the van, not merging into the right lane when it was not safe to do so because of the presence of Ms Looney’s vehicle, indicating his intention to change lanes, and keeping a proper lookout were all precautions a reasonable person in his position should have taken in the circumstances.
I find that:
(a)    the risk of harm if he did not exercise reasonable care was a risk of which Mr Richardson knew or ought to have known;
(b)    the risk was not insignificant, and
(c)    in the circumstances, a reasonable person in Mr Richardson’s position would have taken the precautions I have earlier identified to avoid the risk.
I find that Mr Richardson’s failure to exercise reasonable care was causative of the accident. Had he exercised reasonable care, the accident could have been avoided. I find that, for the purposes of s 3.11 and s 3.28, the accident was caused by Mr Richardson’s fault.
I am satisfied, and I find, that the accident was caused by Ms Looney’s failure to exercise reasonable care. In circumstances where:
(a)    Mr Richardson had applied his horn as she passed him;
(b)    she was aware that he had done so;
(c)    she chose to apply her brakes, and slow the speed of her vehicle, in response;
(d)    she was aware of the presence of the van in front of Mr Richardson’s vehicle in the left lane;
(e)    she was aware that the van in the left lane was travelling at a slower speed than Mr Richardson’s vehicle, and knew or ought to have known, that he was gaining on it, and
(f)    she “felt that something was going to go wrong when he started beeping at [her]”
a reasonable person in Ms Looney’s position would have taken steps to disengage from the situation by applying their brakes and slowing the speed of their vehicle further, and either moving into the left lane, behind Mr Richardson’s vehicle, or yielding backwards in the right lane. I find that Ms Looney’s failure to do either was causative of the accident. Had she exercised reasonable care, the accident could have been avoided.
I find that in applying her brakes, and slowing her vehicle to a speed of less than 100kmph, in response to Mr Richardson sounding his horn, represented a failure to exercise reasonable care. I find that a reasonable person in the position of Ms Looney would not have applied their brakes and slowed their vehicle, and would have continued along the roadway, passing both Mr Richardson’s vehicle and the van. Ms Looney’s decision to apply the brakes and slow her vehicle to a speed below 100kmph contributed to the dangerous situation that developed. But for that action, I am satisfied that the accident would not have occurred.
I am satisfied that the risk of harm arising from the manner in which she drove her vehicle was one of which Ms Looney knew or ought to have known. I find that the risk was not insignificant, and in the circumstances, a reasonable person in her position would have taken the precautions to which I have earlier referred. I find that the accident was caused by Ms Looney’s fault.
I do not accept the insurer’s submission that the “so called principle of acting in the agony of the moment” is engaged on the facts as I have found them. At least in part, the circumstances with which Ms Looney was confronted were the result of her failure to exercise reasonable skill and care.
Having found that the accident was caused by the fault of both drivers, it cannot be said that the accident was caused wholly by the fault of Mr Richardson. I find that for the purposes of s 3.11 and s 3.28 of the MAI Act the accident was not caused wholly by the fault of Mr Richardson.
As to whether the accident was caused mostly by Mr Richardson’s fault, the question to be addressed is whether his contributory negligence in relation to the motor accident, as referred to in s 3.38, was greater than 61%: s 3.11(2) and s 3.28(2) MAI Act.
Contributory negligence is determined on the basis of what is just and equitable in the circumstances of the case: s 3.38(3)(c) of the MAI Act. As recorded earlier in these reasons, this involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable person and of the relative importance of the acts of the parties in causing the accident. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination: Podrebersek.
The parties agreed at the hearing that I am not required to make a specific finding in percentage terms of Mr Richardson’s contributory negligence, and that I am only required to make a finding as to whether the contributory negligence of Mr Richardson in relation to the accident was greater than 61%.
In my assessment, Mr Richardson’s contribution to the accident involved a significant departure from what the exercise of reasonable care required in the circumstances. He initiated the situation by sounding his horn when Ms Looney’s vehicle passed his in the right lane. If he had not done so, she would not have applied her brakes and slowed down (as she only did so in response to hearing his horn), and would have passed both his vehicle and the van. Further, he failed to exercise reasonable care by failing to maintain a safe speed and distance behind the van, merging into the right lane when it was not safe to do so, failing to indicate his intention to change lanes, and failing to keep a proper lookout prior to attempting a lane change. In my view, Mr Richardson’s conduct made a significant causal contribution to the accident.
Against this, Ms Looney responded to Mr Richardson sounding his horn by applying her brakes and reducing the speed of her vehicle to below 100kmph, was aware of the presence of the van in front of Mr Richardson’s vehicle in the left lane, that the van in the left lane was travelling at a slower speed than Mr Richardson’s vehicle, and that he was gaining on it, and failed to take the steps that I have earlier identified to disengage from the situation.
Having considered the whole conduct of each driver in relation to the circumstances of the accident, I find that it is just and equitable in the circumstances of the case to make a finding that Mr Richardson’s contributory negligence in relation to the accident was greater than 61%. Given that finding, I find that the accident was caused mostly by the fault of Mr Richardson.

COSTS

Mr Richardson seeks an order under s 8.10(4)(b) of the MAI Act. By that provision, the Commission can permit payment of legal costs incurred by a claimant but only if satisfied that exceptional circumstances exist that justify payment of legal costs incurred by the claimant.
It is argued that these proceedings involved complex issues, requiring both parties to peruse and consider voluminous documentation, prepare for oral argument, and prepare for oral examination of a number of witnesses. Further, it is submitted that, due to the issues in the matter, there was a need to brief crash investigation liability experts.
The insurer submits that costs should follow the event. In circumstances where Mr Richardson succeeds, the insurer agrees that his costs fall into the criteria considered “exceptional” but only to the extent the costs are reasonable and necessary.
Contrary to the insurer’s submission, success is not a pre-requisite to Mr Richardson accruing an entitlement to the payment of his legal costs in connection with the proceedings. In AAI Ltd v Moon [2020] NSWSC 714 (Moon) Wright J found at [82]:
“[82] As to the general nature of the entitlement conferred by s 8.10, it can be noted that it is not similar to the awarding of costs in court proceedings. There is nothing in s 8.10 or any other provisions of the MAI Act that suggests that a claimant’s entitlement to recover legal costs under s 8.10 depends on whether or not the claimant was successful before the DRS…”
Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26], and San v Rumble (No 2) [2007] NSWCA 259 at [67].
I am satisfied that exceptional circumstances exist that justify payment by the insurer of the reasonable legal costs incurred by Mr Richardson in connection with these proceedings. I find that, when taken together, the following circumstances constitute “exceptional circumstances” for the purposes of s 8.10(4)(b) of the MAI Act:
(a)    the factual disputes and the legal issues that arose for determination in the proceedings;
(b)    the work involved in the preparation of written submissions, and the matters addressed in those submissions;
(c)    the preparation required by the parties in connection with the hearing;
(d)    that the issues were of such complexity that both parties were represented by experienced counsel at the hearing, and
(e)    a hearing was required, as opposed to the proceedings being determined on the papers.
In these circumstances, the Commission permits the payment by the insurer of the reasonable and necessary legal costs incurred by Mr Richardson in connection with these proceedings in accordance with s 8.10(4)(b) of the MAI Act. If Mr Richardson’s costs cannot be agreed, the parties can take appropriate steps to have the quantum of the costs determined.
With respect to Mr Johnston’s report, it is argued by Mr Richardson that, at the core of this matter, lay two competing versions of events. He submits that the expert evidence was of great relevance, and that it was reasonable to obtain expert evidence to confirm whether each version of the accident was viable, reasonable, or otherwise. He argues that the costs incurred engaging Mr Johnston, including with respect to his report and his involvement in the preparation of the joint expert report, were reasonable and necessary costs having regard to the matters in dispute.
The insurer submits that the cost of engaging Mr Johnston was neither reasonable nor necessary within the meaning of s.8.10(3) of the MAI Act. I do not agree. I am satisfied that Mr Johnston’s opinion, expressed in his report and the joint expert report, assisted in narrowing the matters in dispute.
I find that the engagement of Mr Johnston to provide a report was reasonable and necessary. The insurer is to pay the reasonable and necessary costs of his report and his involvement in the preparation of the joint expert report.
The insurer submits it would be appropriate for the Commission to permit it to pay its lawyers the reasonable costs associated with the legal services provided to it, including the cost of counsel, in connection with the proceedings. In this regard, the insurer seeks a costs order under s 8.3(4) of the MAI Act, and relies on the reasons of Wright J in Moon at [127]-[128]. In support of its submission, the insurer points to, and relies on, Mr Richardson’s submissions as to why “exceptional circumstances” exist that would justify an order under s 8.10(4)(b).
I am satisfied, and I find, that for the purposes of s 8.3(4) of the MAI Act, this is an appropriate matter in which the Commission should permit payment of the insurer’s reasonable legal costs for legal services provided to it in connection with the claim, including counsel’s fees. The circumstances that I have earlier found constitute “exceptional circumstances” for the purposes of s 8.10(4)(b) underpin my finding in this regard.

[2023] NSWPIC 454

7 September 2023