Russell v Chu - [2015] TASSC 25

[2015] TASSC 25

COURT: SUPREME COURT OF TASMANIA

CITATION: Russell v Chu [2015] TASSC 25

PARTIES:  RUSSELL, Daniel Johnston
  v
  CHU, Hongfei

FILE NO/S:  736/2011
DELIVERED ON:  23 June 2015
DELIVERED AT:  Hobart
HEARING DATES:  3-7, 26 February 2014
JUDGMENT OF:  Wood J

CATCHWORDS:

Torts – Negligence – Road accident cases – Liability of drivers of vehicles – Generally – Collision with cyclist – Speed and inattention.

Civil Liability Act 2002 (Tas), ss 11, 12, 13.
Manley v Alexander (2005) 80 ALJR 413; Derrick v Cheung (2001) 181 ALR 301; Rayner v Cochrane [2011] TASSC 45, considered.
Aust Dig Torts [90]

Torts – Negligence – Contributory negligence – Road accident cases – Cyclist diverged from edge of lane in order to effect turn without signalling or looking behind – Cyclist's negligence contributed to his injuries to the extent of 30%.

Aust Dig Torts [65]

REPRESENTATION:

Counsel:
             Plaintiff:  K E Read SC, R Phillips
             Defendant:  P L Jackson SC
Solicitors:
             Plaintiff:  Phillips Taglieri
             Defendant:  Murdoch Clarke

Judgment Number: [2015] TASSC 25
Number of paragraphs: 136

Serial No 25/2015
File No 736/2011

DANIEL JOHNSTON RUSSELL v HONGFEI CHU

REASONS FOR JUDGMENT WOOD J

23 June 2015

On 16 December 2008, the plaintiff, Daniel Johnston Russell, was riding his bicycle north on Colebrook Road. The plaintiff was riding with his cycling companion single file on the left-hand side of the road. They were destined for Orford and intended to turn right at the junction with Fingerpost Road. The defendant, Hongfei Chu, was the driver of a motor vehicle also travelling north on Colebrook Road towards Campania. He drove around a bend and saw the two cyclists in front of him on a straight stretch before the junction. The plaintiff moved toward the centre of the north-bound lane, commencing his turn into Fingerpost Road. The defendant's motor vehicle collided with the plaintiff. As a result of the collision, the plaintiff suffered significant injuries, breaking his back in three places.
Mr Russell brings an action against Mr Chu for negligence. A trial has been held to determine the question of liability only. There is no contention that the defendant owed a duty of care to persons on the road, including cyclists, and the issues are the standard of care, whether the defendant breached his duty of care and whether the collision was contributed to by the negligence of the plaintiff. It has not been argued for the defendant that if the defendant breached his duty that causation has not been established. Some of the contentions about the facts impinged on this question of causation, and so it is given consideration in these reasons, notwithstanding that the arguments have not been articulated with that focus.

Background not in issue

The plaintiff, Daniel Russell, was on a cycling holiday in Tasmania in December 2008. He was travelling with a friend, Robert Dunn, both from Canada. Both men had extensive cycling experience and had often cycled together. Mr Russell had cycled in the United States and Europe, and had completed a cycling trip to New Zealand for a period of five and a half weeks in 2002.
Mr Russell and Mr Dunn arrived in Hobart on Sunday, 14 December 2008, where they stayed for one night. The following day, they cycled to Richmond. The route they travelled to Richmond took them along Colebrook Road, past the junction with Fingerpost Road on their left.
On Tuesday, 16 December 2008, the men rode north from Richmond at about 10am. They intended to ride to Orford. Mr Russell rode a Santa Cruz Blur, a grey/black road bike with slick tyres and locked out shock absorbers. He travelled with full yellow panniers with reflectors. The panniers were fitted to the back of the bike. His bike itself had reflectors and was fitted with a flashing rear light, although there is no suggestion it was activated at the time. The plaintiff wore khaki or grey cycling shorts, and a helmet. I find he was conspicuous, wearing a red top or red backpack.
The route the men took involved retracing their path along Colebrook Road. They were looking for signs to Orford and planned to turn right into Fingerpost Road. The plaintiff took the lead and Mr Dunn cycled behind him. The plaintiff's evidence was that they were travelling at between 10 and 20km/h. The weather was fine, the road was dry and visibility was good.
The defendant, Hongfei Chu, was at that time a student at the University of Tasmania. He had just obtained his full driver licence. He was driving a Nissan Bluebird sedan, on his way to obtain work as a cherry picker at a farm in Campania. He had four passengers, one in the front seat and three in the back seat. The group had left the Coles supermarket in Sandy Bay at approximately 9.45am. Two of his passengers were also University of Tasmania students. The passenger in the front seat was Jing Wei Chen, who had not driven in that area before and was concentrating on the scenery outside the vehicle. The passenger in the middle back seat, Yang Lui, dozed for some of the journey.
The defendant turned from Richmond and was travelling on Colebrook Road and after the speed limit sign showing the speed limit of 100 km/h he was travelling at nearly that speed.

The scene of the collision

A view of the scene of the accident was held and a plan of the scene, as well as video footage showing the view of a driver on Colebrook Road, was in evidence. Approaching the intersection of Colebrook Road and Fingerpost Road from Richmond, driving in a general northerly direction, there is a long straight, and a row of tall trees before the intersection on the right-hand side. For vehicles approaching the intersection driving north, the view of traffic on Fingerpost Road approaching the intersection is obscured, but cars at the intersection can be seen because the row of trees is set back from the edge of the road. The road is made of bitumen seal. The lanes are separated by a continuous white line on the side of the north-bound lane, and a broken white line bordering the south-bound lane. The north-bound lane is 3.2m wide; the south-bound lane is 3.5m wide. Both lanes are edged by a solid white line, followed by a narrow bitumen shoulder and then a gravel edge. The speed limit on Colebrook Road at this location is 100 km/h.
The intersection with Fingerpost Road is a T-junction. There is a "turn-out lane" to the west of the north-bound lane of Colebrook Road, and Fingerpost Road is to the east. A road sign is visible at the intersection. A white dotted line separates the turn-out lane from the north-bound lane of the road, and this commences approximately 100m south of the intersection. At its widest point, the turn-out lane is 3.25m wide, although it is considerably narrower at other points. On the south side of the intersection, adjacent to the south-bound lane, is a gravel verge, followed by a table drain and a grass area.

Examination of the scene

Sergeant Rodney Carrick, of Tasmania Police, officer in charge of Crash Investigation Services, Southern Police District, examined the scene of the collision at 11.15am on the day of the collision. He examined the car the defendant had driven and the plaintiff's bicycle in situ, and prepared a scale plan using a "Quick map" mapping station and computer software. A copy of the plan showing the location of skidmarks, crash debris and the location of the vehicle and bicycle was prepared using Sgt Carrick's examination and measurements taken at the scene.
The Nissan Bluebird sedan was facing in a general northerly direction at the intersection and on Fingerpost Road. The front left corner of the vehicle was 3.6m east of the give-way line. There was damage to the front bumper bar on the passenger side. The windscreen was shattered. There was denting to the front of the roof and marks on the driver's side. The damage to the vehicle suggests initial impact occurred approximately 300mm from the front passenger corner. The plaintiff's mountain bike was found facing in a general south-easterly direction and positioned 13.95m south of the motor vehicle. There was significant damage to the rear forks and wheel. The damage suggests that the bike was struck from behind.
Inspection of the road way was undertaken and two distinct parallel skid marks were noted commencing in the vicinity of the centre line in the south-bound lane. They commenced approximately 16m before the approximate point of impact, and approximately 54m south of the resting position of the Nissan Bluebird. They continued in a general northerly direction diagonally towards the position of the car. The skid marks traversed the bitumen, gravel and the table drain.

The issues

The factual issues concern the events that occurred after defendant came around the bend before the junction with Fingerpost Road. Particularly in issue is the movement of the plaintiff's bicycle in the moments before the collision. An issue is whether the plaintiff signalled an intention to move towards the centreline. The defendant's speed is in issue, but only within a range of 10km/h. There is no issue that he was travelling at a minimum of 90km/h at the time of the accident, and it is not contended by the plaintiff that he exceeded the speed limit of 100km/h. Also in issue is whether the defendant paid attention to the plaintiff in the moments before the collision.

Evidence of what happened

The evidence bearing on the issues came from the plaintiff, his cycling companion, Robert Alan Dunn, the defendant, and his passenger, Yang Liu. A statement of another passenger, Jing Wei Chen, was tendered. There is opinion evidence from Sgt Carrick, who was called for the defendant, which bears on the issues.

The plaintiff

The plaintiff described travelling along Colebrook Road in a general northerly direction and looking for the sign to Orford. He saw the sign, and looked back. He saw Mr Dunn about 40 or 50 feet behind him, and a car about 400 feet away. He considered he was travelling at about 15km/h per hour, explaining that his speed had varied between 10 to 20km/h per hour that morning. He considered that his speed at that time was 15km/h, as he wanted Mr Dunn to catch up. His estimate was based on his experience, the feel of how fast he was going. When he looked back, he had reached the beginning of the broken white line on the left-hand side of the road at the commencement of the turn-out lane. He turned to look ahead, put his left-hand up to signify a right hand turn. He demonstrated the signal he gave: extending his left arm and hand straight up over his head. In Canada and the United States, that is the signal for a right turn. He continued to ride along the dotted line while giving that signal. His evidence-in-chief regarding what followed was very limited. He gave evidence that he heard screeching and Mr Dunn yelling out, "Dan", and he was hit. When he heard those noises, he was on the broken line.
Cross-examination focussed on the detail of the plaintiff's movements in the moments before the collision. The plaintiff agreed in cross-examination that he had diverged from the broken line to his right before the collision in order to make a right-hand turn into Fingerpost Road. This had not been mentioned in evidence-in-chief, yet he readily agreed that was so when he was asked what had happened. This critical evidence given in cross-examination was as follows. After looking behind him, as he described, and seeing Mr Dunn and the car, he looked ahead and continued to ride along the broken white line and then diverged from the line. He said that for some distance he had held his left arm in the air. He agreed that, having looked back once, referring to when he was at the commencement of the broken line, he did not look again before deviating from his path. He agreed that, at the time he diverged from the broken line, he did not know how far behind him Mr Dunn or the car were. The plaintiff agreed that "in retrospect" he could have continued on the centre line until he reached the junction and turned from there. He said he did not swerve into the lane from the broken white line. He described his diverging as a "very slight angle". His account was that his intention was to occupy the lane until he made the turn. He said that he diverged as he did, conscious of the turn-out lane which could be used by the car behind him. After he had diverged, he heard Mr Dunn yell out and heard a screeching noise.
He was asked in cross-examination about looking back and seeing the car. In reference to the description he gave in evidence-in-chief of the distance of the car as 400 feet away, he explained in cross-examination that he uses metric and imperial systems of measurement interchangeably. He said the car was a distance of about 100m away. He gave evidence that when he looked at the car, he gained an impression of its speed and he assumed it was probably going at 70km/h. He agreed that he knew that he was cycling in a 100km/h zone.
With reference to a plan of the accident scene prepared by Sgt Carrick, and handed to him by the defendant's counsel during cross-examination, the plaintiff gave a "rough estimate" of where he diverged away from the broken line. The plan was one which showed the road and features such as signs, but not skid marks or the approximate point of collision. The place he marked was approximately parallel to the point of collision as shown on Sgt Carrick's other plan with the other features marked on it. There is no dispute that the point of collision as marked on the plan, as an approximation, is correct. In terms of his bearings and marking on the plan the place he diverged, the plaintiff had no end point to work back from. With reference to the scale on the plan, it was approximately 65m from the beginning of the broken line and 44m to the centre line of Fingerpost Road. Even on that account, obviously incorrect, he began his manoeuvre a lengthy distance ahead of the junction. The marking on the plan suggests that, according to the plaintiff's recollection, his divergence from the broken line was some distance after the commencement of it.
Cross-examination explored differences in the plaintiff's evidence and a statement that the plaintiff had provided to Sgt Carrick when in hospital on 22 December 2008. It was unsigned, but at the conclusion of taking the statement, Sgt Carrick read it to the plaintiff, recorded reading it and gave him the opportunity to make corrections. Significantly, the statement provided that he did not recall diverging from the broken line and did not mention signalling an intention to turn right.
The plaintiff's statement provided that: "I can't recall deviating from the left-hand side of the road. When you cycle for a number of years you stay consistent with what you do." Later, after stating that after hearing "Rob screaming out, I heard and felt a huge bang", the statement provided, "I am pretty positive that I didn't deviate from my course on driving/riding before the accident". And another passage towards the end of his statement provided, "I cycle very close to the edge of the road. I can't recall pulling out in front of a car in any event I find that scenario would be very unlikely."
I have listened to a recording of Sgt Carrick reading back the statement to the plaintiff. At the end he is asked whether it is true and correct and he stated "absolutely true".
I note that the language recorded in the statement suggests that the plaintiff may not have had a memory of the detail of what occurred in this regard. The statement as to his recollection is qualified, or suggests he does not recall. It also draws on his usual way of cycling, again suggesting a lack of memory.
The plaintiff said in his evidence that he could not recall telling Sgt Carrick of that lack of recollection. The statement itself reveals some details regarding the circumstances in which the statement was taken: he was in the neurosurgical ward, he had broken his neck, right wrist and ankle, and that he was to be transferred to the Austin Hospital in Melbourne that night.
He agreed in cross-examination that his statement was sent to him afterwards when he was at the Austin Hospital in Melbourne. He was then on a significant amount of morphine and oxycontin and had endured numerous operations, in extreme pain, and he did not form a view about its accuracy. In his words, "I was trying to survive, I wasn't thinking about some piece of paper in front of me".

Observations about the plaintiff

I found it strange that the plaintiff made no mention in evidence-in-chief of deviating to his right before impact. Yet, he readily acknowledged in cross-examination that he had deviated; he was not coy or unforthcoming about this aspect of the events. There was no suggestion that at the time of giving his evidence he could not recall deviating from the edge, such that might explain not mentioning it in chief. The way his evidence about this emerged gave rise to some reservations about his evidence. It was suggested in closing on behalf of the plaintiff that the reasons for not mentioning this matter could have been a strategic decision on behalf of counsel. I have no way of knowing whether it was a strategic decision or not, and so this possibility does not address my reservations.
In relation to a separate matter, I did not find the difference between the plaintiff's statement to Sgt Carrick about not recalling diverging from the broken line, and his evidence in cross-examination that he had diverged, to be significant. He was obviously severely injured; memory difficulties at that time are explicable and do not suggest lack of candour. I also note that, in his statement, the plaintiff did not mention making a hand signal. Perhaps that is not surprising if he could not then recall diverging from his path. Again, I do not find his lack of recollection at that time to be significant, given the timing and circumstances of the taking of his statement.
I made an observation that the plaintiff's evidence revealed a consciousness of his police statement and differences between that account and his evidence. His evidence-in-chief was anticipatory of those differences and his responses in chief were embedded with explanations for them. Some of his explanations seemed contrived. For example, it seemed disingenuous to suggest that the reason for referring to "400 feet" in evidence was because he uses the imperial system interchangeably. It was obviously because that was the description he gave in his statement. There were other examples. The answers he gave regarding whether he knew that the arm signal was correct in Australia were given with an eye to his case. I am conscious that for a witness who is a party to long-standing litigation, and who has suffered life changing injuries, to remain a detached, non-partisan witness who does not argue their case can be an unrealistic expectation.
Having made some adverse observations about the plaintiff's evidence, it is not the case that I find him to be untruthful. Rather, I have reservations about his evidence, there is reason to scrutinise his account, as I have done; I have been cautious about accepting it, and as will be seen, not all of his evidence has been accepted.
His evidence in cross-examination regarding the angle at which he diverged, and his explanation about the turn-out lane all struck me as reliable and persuasive. He was confronted in cross-examination with an alternative course, as a preferable course, to have waited and executed his turn opposite Fingerpost Road, and he readily agreed that he could have taken that course. He was frank and candid about not looking a second time before diverging, and not knowing how far Mr Dunn and the car were behind him at the time he moved away from the broken line.
As for the point at which he diverged with reference to the plan, I do not find that reliable given the plan he was shown. He was shown a version of Sgt Carrick's plan that did not have the skid marks shown or the approximate point of impact. He said he did not have any idea where the point of collision was with reference to the plan. His only points of reference as he was cycling, common with the plan, would have been his proximity to Fingerpost Road and the start of the broken line, and understandably it is difficult to translate that to a plan. As he was anxious to point out, his markings on the plan were just a rough estimate. His evidence about the location of where he started to diverge does not assist on the issue of the angle of his manoeuvre.

The plaintiff marked on the plan his angle of divergence. He stated, "I can give you a rough estimate and it would be something – a very slight angle". Later, he said "slowly turning". He marked his point of divergence and an end point as the centreline of Colebrook Road opposite the centreline of Fingerpost Road. He drew a path, part of which followed the centreline for some distance. As I have mentioned, he was incorrect about the point at which he diverged. His evidence that it was his intention to cross just to the centreline until he reached Fingerpost Road is also in doubt, given the evidence of the approximate point of collision as being in the eastern lane, which I will come to shortly. The angle of his divergence as marked on the plan, is shallow, in the order of 15 degrees or less. His marking is of course, as explained by the plaintiff, only a "rough estimate".

Robert Dunn

Mr Dunn's account was that he was following behind Mr Russell, and as they approached the intersection with Fingerpost Road they were slowing down a bit, travelling at 10 to 15km/h. They reached the broken line and he was approximately 30 or 40 feet behind the plaintiff. The plaintiff was "gradually shifting" out into the middle of the road. He was not sure how close the plaintiff was to the middle of the road, but he had shifted by at least a third of the lane's width. Mr Dunn did not see a car from behind but he heard a car coming. He did not look behind. He looked down for a few seconds, "as you do when you're cycling", and he looked up and saw the plaintiff go over the bonnet of the car. He said that "it happened so fast". Mr Dunn said he was travelling on the solid line next to the ditch. He described that the plaintiff was riding on the broken line, then he started to swerve gradually out into the road, and then he got hit. He marked that on a copy of Sgt Carrick's plan.
He showed his own position and a red line as the plaintiff. The markings on the plan by Mr Dunn show the plaintiff's divergence from the broken line as an angle of less than 15 degrees.
He gave evidence about the angle that the plaintiff diverged with reference to a clock face, at my suggestion, but unfortunately the reference was completely unhelpful to him in describing the angle. The answer he gave with reference to a clock face related to Mr Dunn's position in relation to the plaintiff after he had been struck and was on the windscreen. The evidence in this respect was unhelpful.
In cross-examination Mr Dunn said that it was just after the broken lines that the plaintiff began to diverge. Mr Dunn said that, like the plaintiff, he planned to make a gradual turn across the road rather than turning directly opposite Fingerpost Road; he just had not begun his turn yet. Mr Dunn said he did not look behind him at all. The plaintiff did not say anything about crossing the road. He stated that, as the car passed him, there was no indication it was braking. The car was not swerving, it was following a forward path as it passed. He believed it was travelling at the speed limit of 100km/h. However, he did not see the vehicle until it hit the plaintiff. He did not recollect the plaintiff giving a hand signal, or see the plaintiff look behind him. He stated that he saw the plaintiff diverge from the broken line, then he looked down for a few seconds, three to five seconds, and looked up to see the plaintiff's body going over the bonnet.
Mr Dunn agreed in cross-examination that he had answered some questions on an application for scheduled benefit form. One of the questions asked him to provide a written explanation of how the accident occurred, and he answered, "I, Rob Dunn was cycling behind Daniel Russell when Dan swerved into car lane and was hit from behind by car".
Cross-examination explored a statutory declaration taken on 16 December 2008, in which Mr Dunn gave an account of what occurred including the following, some of which is inconsistent with his evidence.
•     The plaintiff was in the lead, about 2m in front.
•     As they neared the intersection with Fingerpost Road, the plaintiff said something to Mr Dunn about crossing.
•     Mr Dunn could not be sure if the plaintiff turned his head to the right to look.
•     Mr Dunn had a bit of a look and knew a car was coming from behind.
•     He looked ahead and noticed Daniel had moved toward the centre of the road, then all of a sudden the vehicle hit Daniel from behind.
•     "Daniel didn't use any hand signals to turn."

Observations about Mr Dunn

The defence relied on Mr Dunn's answer in the scheduled benefits form, that the plaintiff swerved into the car lane. As a one sentence summary of what occurred, I do not find it to be inconsistent with his evidence, or that the word "swerved" is significant. It begs the question whether he swerved sharply or gradually. The statement and Mr Dunn's evidence indicate that Mr Dunn did not see some of the plaintiff's manoeuvre in diverging from the left side of the road. In his statement, Mr Dunn looked behind him, and in his evidence he was looking down. There is nothing in his accounts suggesting the plaintiff's manoeuvre was sharp or sudden, or that the plaintiff's bike was on a sharp angle to the orientation of the road. His marking on the plan is, of course, only an estimate but it does not suggest a sharp angle. His evidence that he had seen the commencement of the plaintiff's manoeuvre diverging from the broken line seemed persuasive.
There were some differences between Mr Dunn's evidence and his statutory declaration in the aspects set out above. I do not find those differences significant in assessing Mr Dunn's veracity or reliability. They do not undermine his account in evidence. For example, Mr Dunn may well have had a look behind him and seen the car approaching, but does not now recall it.
The defendant's counsel made a point about Mr Dunn's estimate of the car's speed in his evidence as 100km/h. It was noted that this was based on the very limited observation of the car passing him in the brief moments before the collision. It was pointed out that, in his statement, he looked behind him, which would have given him greater opportunity to observe speed. In that statement he referred to the speed of the defendant's vehicle, saying, "I would say the vehicle was going at a normal speed". I did not find these differences between Mr Dunn's statement and his evidence at all material. If he had a "bit of a look", it is not surprising that, over seven years later, he did not recall that look behind, particularly given that he did not observe anything of note. There is not necessarily a difference between an estimate of 100km/h and an estimate of "normal speed", given the speed limit of 100km/h. Either way, he had a limited opportunity to observe the vehicle's speed. The evidence about 100km/h was an estimate and there is no dispute that the defendant was in fact travelling at a speed of at least 90km/h.
I did not make any adverse observations about Mr Dunn's veracity and reliability. He had an excellent view of what occurred ahead of him, except for the period when he was looking down.
His account about the angle at which the plaintiff diverged from the broken line and moved towards the centre, that it was not a sharp angle, seemed reliable. As I have said, he showed it to be a gradual angle when he marked it on the plan. The angle and the location of departure from the broken line tallies broadly (noting that precision in marking on the plan is not to be expected) with the skid marks and point of impact. I note that he marked a plan which had these features shown on it, unlike the plan shown to the plaintiff. I found his evidence that he did not recall seeing the plaintiff make an arm signal persuasive. Whether or not the plaintiff said something about crossing is not a material issue.

The defendant

The defendant was travelling from Hobart with four passengers to a cherry farm near Campania to pick or pack cherries. On the Colebrook Road, after leaving Richmond, he was travelling at nearly the speed limit of 100km/h. Once he passed the bend before the intersection, he saw two cyclists. He had some difficulty understanding questions regarding how far he was from the bend when he saw the cyclists. However, when he was asked how far away the cyclists were when he first saw them, he gave evidence that they were 50m in front of him. That is consistent with an answer he gave to an interrogatory:
"How far away from the plaintiff were you when you first saw him? - I am not sure but believe it was approximately 50 metres."
He said after he first saw the cyclists, he touched the brake, reducing the car's speed to 90-93km/h. He looked at his speedometer. The cyclists were on the left side of the roadway. The cyclist looked back at his car and looked for two or three seconds. The cyclist had reached the broken line for the turn-out lane. On a copy of the plan, he marked the point where the cyclist turned and looked back, which he said was very close to the start of the broken line. With reference to the scale on the plan, the place he marked was 24m from the start of the broken line. I am conscious that he may not have had the scale in mind. Perhaps more reliably, the place he marked was a distance a little less than one-fifth, along the broken line to the centre line of Fingerpost Road. The defendant gave evidence that the cyclist then suddenly turned right and the defendant went right to avoid hitting him and braked heavily. He was asked whether it was a sudden or gradual turn and he said it was a sudden turn. The cyclist did not give any signal before he made the sudden turn.
In cross-examination, the defendant agreed that he had previously stated in a document sent to the Motor Accidents Insurance Board that he estimated the speed of his car at the time of the accident was 97km/h. He explained that he was not sure whether that was the exact speed. He said his speed was slightly above 92 or 93km/h. He explained that he put his foot on the accelerator after initially braking.
As he approached the cyclists, he moved slightly to the right and returned his foot to the accelerator. He agreed that he had said in answer to an interrogatory that initially, he had been travelling at approximately 100km/h. The defendant gave evidence that he had always reported his speed as "slightly higher, not lower" than the true speed.
He was not certain how far apart the cyclists were, explaining, "I just obtained my full licence so I'm not very good in estimating distances". It was suggested to the defendant that he did not see the plaintiff move off the broken line and he responded, "I sense that he is going to – turn that's why I swerve to the right". He said that the cyclist who looked back at him, referring to the plaintiff, was slowing down. The defendant said he presumed that he saw him.
The defendant was asked about the suddenness of the front cyclist being in front of his car:
"They – they were continue on and then one of them turned their head back for two or three seconds. Yes, I – I noticed that the – the persons – I'm not quite sure whether he cross the breaking line or not crossing the breaking line, I'm not quite sure, but I – but I definitely know that he's going to turn around. So I quickly swerve to the right try to avoid him. And the next thing I know I run into him, and then his body landed on my windscreen."
The defendant said that he put the brake on when he was certain that the cyclist wanted to turn. The defendant said he moved slightly to the right. He returned his foot to the accelerator. Further, he stated that after the cyclist looked back and then ahead, that the cyclist's speed was very slow and that he then turned right. He said, "The next thing he appear in front of me and then subsequently he landed on my windscreen."
The defendant was asked in interrogatories the speed of his vehicle at the point of the collision. His response was, "I am unable to better answer than to say that I slowed my vehicle when I first saw the two bicyclists ahead of me and then braked very heavily and swerved to the right when one of them began to ride directly across the path of my vehicle. The speed of my vehicle rapidly decelerated in response to the heavy braking prior to impact but I cannot say, or even estimate, the speed to which my vehicle had slowed before the moment of collision with the bicyclist."

Observations about the defendant

Part way through the defendant's evidence, it was apparent that he was having some difficulties and fairness required an interpreter. It was noted that interrogatories delivered to the defendant had been translated into Mandarin and his answers, given in Mandarin, were translated into English. An interpreter was organised and, to my observation, Mr Chu then continued without difficulty. I have been mindful of the risk of misunderstanding before the interpreter was engaged.
The defendant gave an honest and conscientious account. It was evident that in relation to past accounts of a higher speed than in his evidence, he was cautious in stipulating a speed, and in the case of a range or estimate, he erred on the side of saying his speed was at the higher end rather than the lower end of the estimate as he understood it to be. Still, his account is revealing about his speed. He agreed that he had estimated his speed to be 97km/h at the time of the accident, and further, before the collision he had accelerated from a speed of 90-93km/h.
The defendant stated that he was not skilled at estimating distances and it is apparent that his evidence of distances is not reliable. He estimated that he was 50m away from the cyclists when he first saw them, but this could not be correct. On his own account he made observations indicating that the time taken to reach the cyclists must have been longer than the time it would have taken him to travel the distance of 50m. According to his own account he had time to touch the brake and reduce his speed, look at his speedometer, and having slowed to a speed of between 90 and 93km/h, he put his foot on the accelerator and sped up again on his immediate approach to the cyclists. He then swerved to the right and braked heavily. If he was travelling at about 100km/h and was only 50m away from the cyclists when he first saw them, he would have reached them in under two seconds. It is evident from all that he did that he must have seen the cyclists from a much greater distance than 50m away.
His observation about the distance the plaintiff was from him when he began to manoeuvre, being 15m is also highly unlikely to be correct. Travelling at 95km/h, he would have covered 15m in approximately 0.6 seconds. Also, given that the evidence of Sgt Carrick that the skid marks begin approximately 15m before the approximate point of collision, there is no room for perception reaction time before the brakes locked up into a skid.
The defendant's evidence revealed that, for him, the appearance of the plaintiff in front of him was sudden and unexpected. This is consistent with a significant reduction in distance between driver and cyclist without observation in the interim. From his perspective, there was a sudden turn of events, and he was not responding to events gradually unfolding. His observations of the plaintiff after first seeing the cyclists until the plaintiff suddenly appeared in front of him, were limited and lacking in content. Even when he swerved to the right, his observation was limited. It seemed as if the plaintiff was in the periphery of his attention rather than that he was concentrating on him and his movement. Speaking of when he slightly swerved to the right, he described seeing the plaintiff come out from the broken line. The plaintiff's counsel asked him, "But you didn't see him move off the break line, did you?" The defendant replied, "I sense that he is going to – to turn that's why I swerve to the right". His observations of the plaintiff are meagre.
Yang Liu
Mr Yang Liu was a passenger in the defendant's vehicle. He was seated in the middle of the back seat. He was dozing with his eyes closed for part of the journey. When he opened his eyes, the cyclist was about 20m in front of the car and looking at the car. After one or two seconds, the cyclist turned his head back and then moved to the centre of the road. The defendant braked very suddenly and they hit the cyclist.
The evidence of Mr Liu was consistent with the defendant's evidence that the plaintiff turned and looked, that this was apparent to those in the vehicle, and that the response of the defendant to the situation was to suddenly brake. His account seemed to share the defendant's perception that the events unfolded very suddenly. I note that his evidence as to distance also seems unreliable given the matters noted above at [54].

A statement of Jing Wei Chen

A statement of Jing Wei Chen was tendered and it was agreed she had made a statutory declaration in the same terms. She noticed two cyclists when they were about 10m from the vehicle. Ms Chen saw one of the cyclists looking back towards them. Her account was, "I remember Phillip attempting to avoid the push bike by driving around them to give them space and I recall Phillip braking at the same time. I think at this point we collided with the cyclist, I am not sure of where we hit the cyclist but I remember the front windscreen breaking".
Ms Chen also stated that, "at the time we were travelling at a relatively slow speed". She thought the defendant was travelling under the speed limit of 100km/h but she could not be sure. Again, the evidence is consistent with the defendant's account. It does not advance my consideration of the defendant's speed.

Sergeant Rodney Carrick

Sgt Rodney Carrick is a police officer with Tasmania Police and is the Officer in Charge of Crash Investigation Services, Southern Police District. At the time of the accident in question, he had attended and investigated over 120 fatal and 200 serious injury crashes. Since the early 1980s, he has successfully completed numerous courses in accident investigation, gaining both theoretical and practical instruction in this area.
Sgt Carrick, as an expert in accident investigation, gave evidence bearing on how the collision occurred and the point of impact, and gave an opinion about the course of travel of the vehicle immediately before the collision. He advanced an opinion about the minimum speed of the vehicle at the time it commenced to skid. He also gave general evidence about driver perception reaction times. Sgt Carrick was called by the defendant but his expertise and objectivity were not in question, and his evidence was unchallenged. Indeed, it was submitted for the plaintiff that he is a highly skilled and reliable expert and I was urged to give all of his evidence full weight. It is a case where the parties sought to highlight aspects of his evidence, or some responses over other aspects. His calculations were in evidence and the foundation for his opinions was set out. There is no need to set out the detail of his evidence and all the observations he made, and the foundations for his opinion. I set out below his evidence which is both uncontentious and accepted by me.
Sgt Carrick gave evidence about the approximate point of impact. In the south-bound lane, between the two parallel skid marks on the bitumen, there was shattered glass and some scrape and gouge marks. These marks indicated the approximate point of impact between the bike and the car, a little south of the gouge mark on the roadway. Sgt Carrick explained that precision was not possible and that he could only identify the approximate point of impact. Referring to his plan, the point of impact is approximately 1.2m east of the centre line of the road, and approximately 48m south of the middle of the junction with Fingerpost Road.

In Sgt Carrick's opinion, the driver of the car braked heavily prior to impact, locking up all wheels, causing the tyres to skid. The driver lost all steering control of the vehicle as a result of the skid. The vehicle did not have ABS braking. Sgt Carrick explained that a driver of a skidding vehicle does not have steering control over the vehicle.
At impact, the rear of the bicycle was aligned squarely or diagonally to the front of the vehicle, but was not at right angles to it. Sgt Carrick stated that the bicycle was at an angle of less than 45 degrees to the front of the car, which itself was at a shallow angle to the line of travel of the road.
In cross-examination, Sgt Carrick was asked to calculate the time the plaintiff may have taken to travel from the broken line to the point of collision, making assumptions about his speed and angle of divergence.
If the angle of divergence was 15 degrees and the plaintiff's course remained at 15 degrees to the road until the point of collision, then the distance from the beginning of the broken line to the approximate point of impact was 18m. If the bicycle was travelling at 15km/h, then it was travelling at 4.16m/s, and that would take about 4.33 seconds to travel the distance of 18m. Repeating these calculations, if the angle of divergence was 20 degrees, the distance from the broken line to the point of impact was 14m. If the bicycle was travelling at 15km/h then it was travelling at 4.16m/s, and that would take about 3.36 seconds to travel the distance of 14m. It must be noted that these scenarios were postulated as hypotheticals only, and that an opinion expressed by Sgt Carrick in cross-examination, that the plaintiff's angle to the line of the road was probably 15 to 20 degrees and, "more erring on the side of fifteen" was challenged by the defendant.
Perception reaction time varies depending on the circumstances, including whether the hazard is expected or not, as this will dictate whether the driver is aware or vigilant, and whether the circumstances the driver is confronted with require the driver to concentrate on making more than one decision at the same time. For an incident that is not unforeseeable (for example, the changing of traffic lights as a motorist approaches), perception reaction time can be as low as 0.25 seconds and up to 0.7 seconds. For unforeseen circumstances, in urban areas, perception reaction time can be up to 1.6 seconds in daylight hours and up to 2.5 seconds during hours of darkness. In rural areas, perception and reaction time can be up to 2.5 seconds or longer, whatever the time of day. Where there is a need to make more than one decision in response to unforeseen circumstances (for example, to swerve and brake in response to a pedestrian stepping onto the road or a cyclist turning in front of a driver), perception and reaction time can be as high as 3 seconds or more. Sgt Carrick clarified that the words "foreseen" and "unforeseeable" in this context can be read to mean "expected" and "unexpected", where an expected event is one that the driver has notice of and may know or believe is going to happen.
Some of the cross-examination asked questions of Sgt Carrick as to the circumstances in this case that may cause a driver to be an alert or "braked" driver. He identified the cyclists and the T-junction. This was obvious evidence and did not contribute to my assessment of the facts. It went further and asked how a prudent or braked driver would respond to those circumstances. I admitted evidence on the basis that it was probing the notion of a braked driver. Having regard to the line of evidence in its entirety, it trespassed into opinion about what a prudent driver would have done. To the extent that it did, it was not helpful. This evidence did not advance my consideration of the issues in this case or indeed, of the ultimate issue.
Sgt Carrick determined that the minimum speed of the vehicle at the time it commenced to skid on the bitumen was 90km/h. The calculations did not take into account that the vehicle did not stop at the end of the skid mark but continued for another 5m or 6m before it came to rest under a level of braking that was not possible to determine. There were other variables that could have been altered which would result in his calculations producing a faster speed. One possibility was that the co-efficient of friction of the surface was slightly higher, at 0.76 rather than 0.74, which would increase the rate of deceleration. Another possibility was that there was some speed "washed off" before maximum braking and after perception reaction time. In other words, a vehicle will slow down while the brakes are beginning to be activated before the wheels lock and the vehicle starts to skid. It is impossible to say how much the vehicle will slow in this time without testing the vehicle. Sgt Carrick agreed that, in the circumstances, it is more likely than not that the speed of the vehicle was 100km/h. He made this concession with regard to the additional distance travelled by the car beyond the skid mark and allowing for some speed to be washed off before the skid.
Sgt Carrick advanced the opinion that, based on the scene examination and statutory declarations he had obtained from various witnesses, the information he gleaned was consistent with the driver of the vehicle having to react to a sudden, unexpected situation. Further, "the driver has swerved right and applied the brakes causing each and every wheel on the vehicle to skid. This action is consistent with the cyclist moving into the path of the vehicle a short distance in front of him." In broad terms, that opinion is not disputed; the nuanced details of the reference to a sudden, unexpected situation, the cyclist "swerving", and moving a "short distance" in front of the vehicle beg the questions whether it should have been unexpected, how suddenly the cyclist swerved and what distance. The detail of these matters is to be determined by me on the evidence in this trial. Indeed, the evidence on the trial is more expansive than that taken into account by Sgt Carrick. The evidence-in-chief and cross-examination of Sgt Carrick regarding these matters of opinion is of limited assistance. A further aspect of his evidence was that, "A normal reaction in such circumstances is to veer away from the hazard and apply braking." That is not challenged and is accepted.

Findings and analysis

There is a great deal that is not in dispute and about which I do not need to make findings. Such matters are that the defendant was, on his approach, well aware of the presence of the cyclists on the left-hand side, that the plaintiff turned and looked and saw the defendant approaching, and that the defendant saw the plaintiff turn and look. The plaintiff did not turn and look again before diverging towards the centreline. The plaintiff's speed, at approximately 15km/h, is not in dispute. The approximate point of collision is not in dispute. It was on the eastern side of the centreline, consistent with the defendant moving to his right to avoid the plaintiff as the plaintiff moved in the same direction to execute his right-hand turn. It is not disputed that the defendant locked up the wheels of his car and skidded for the distance mentioned. The key areas of dispute that I need to make findings about are the speed of the defendant's vehicle (whether it was more than 90km/h, the minimum speed being conceded in accordance with Sgt Carrick's evidence), whether the plaintiff signalled before he diverged, and the nature of the plaintiff's manoeuvre in diverging from the broken line. The defendant's position is that the plaintiff moved into the defendant's path in a "sudden and unheralded" fashion.

The defendant's speed

I am not able to make a precise finding about the defendant's speed at the point of collision. I find that the defendant was driving at a speed within a range of 95-100km/h at the point of impact. By this, I mean that I am satisfied that the defendant's speed was at least 95km/h and not more than 100km/h. Before seeing the cyclists, he was driving at nearly 100km/h. I accept that he slowed to a speed of approximately 90-93km/h and then sped up again on his approach to the cyclists. The estimate of speed he gave in the MAIB form is sound. The speed of 97km/h is a discernible but not significant increase from the speed of 90-93km/h. The speed of 97km/h is consistent with Sgt Carrick's opinion that it is more probable than not that the defendant was travelling at 100km/h. His account of a minimum speed of 90km/h at the point of impact did not take account of variables in the plaintiff's favour which, evidently from Sgt Carrick's evidence, it is reasonable to take into account. The approach I have taken is to allow for some but not all the variables adverted to by Sgt Carrick that might reasonably be accepted.
However, whilst I find that a speed of 97km/h accurately reflects the weight of the evidence, I am not able to be precise to a kilometre, even on the balance of probabilities. For this reason, my conclusion is that the defendant was travelling at a speed between 95 and 100km/h at the time of the collision.
The plaintiff looked behind him and considered that the speed of the vehicle was approximately 70km/h. He was wrong about that. It is difficult to assess speed when vehicles are square on and there are no markers or references points. The plaintiff's observations may have been influenced by his expectations of the speed of vehicles when approaching cyclists.

Did the plaintiff signal?

I find that the plaintiff did not signal before diverging from the broken line. His account was that he made the signal for some time before diverging, from almost the commencement of the broken white line. I accept Mr Dunn's evidence, that he saw the plaintiff move from the broken line before Mr Dunn looked down. Mr Dunn did not see the plaintiff signalling. If he had seen him, it would have had significance for Mr Dunn and it is likely he would have remembered it.

The plaintiff's manoeuvre

I find that the plaintiff was riding approximately on the broken line, at the commencement of the turn-out lane, before he diverged. The defendant's evidence referring to the plaintiff crossing the broken line was unclear, and if he meant the plaintiff travelled from inside to outside the broken line, it was inaccurate.
I find that the plaintiff diverged from the broken line, at a shallow angle, in order to gradually shift to the centre line and cross. I found the plaintiff's evidence and Mr Dunn's evidence on this point persuasive. I note that this finding is consistent with the location of damage to the bicycle to the rear of the bicycle rather than the side.
The defendant's evidence of the suddenness of his awareness of the plaintiff in his path does not cause me to doubt this finding. I find that the defendant's account of the sudden appearance of the plaintiff is explicable on account of his speed and the limited nature of his observations of the plaintiff in the preceding moments before he was in his path.
The plaintiff's angle of divergence was shallow. I accept Mr Dunn's evidence that he saw the plaintiff depart from the broken line, he looked down for two or three seconds and then looked up as the vehicle was passing. Mr Dunn's account of the seconds that lapsed is consistent with his evidence and the plaintiff's evidence that the angle was slight or shallow. Mr Dunn's notation on the plan showed a shallow angle of less than 15 degrees and a distance of approximately 24m before the point of collision. The plaintiff gave evidence that he began to diverge close to the beginning of the broken line and that is consistent with Mr Dunn's markings on the plan. The descriptions given by Mr Dunn and the plaintiff of the slight or shallow angle, and Mr Dunn's notation on the plan, are consistent. I note that a sharp line of divergence is not consistent with the plaintiff's intention to cross into Fingerpost Road still many metres ahead. From the point of collision there was a distance of some 30m to the closest point at which he may have been likely to enter the junction. I find the evidence of Mr Dunn and the plaintiff to be persuasive with respect to the angle involved. I find with confidence that the plaintiff's angle of departure from the broken line was less than 20 degrees. I reject any suggestion of a more drastic angle.

Was the defendant paying attention to the plaintiff?

The defendant's evidence is revealing about his lack of attention. His observations of the plaintiff at certain times lacked content. He swerved to the right when he was sure the front cyclist was going to turn, and he had a sense before that but without any content to his observation. I note his evidence that after he touched the brake, he looked down at his speedometer which may explain the gap in his observations. He observed the plaintiff on the broken line turn and look behind him and he noted that this was for two or three seconds, but then his next observation with any content is when the plaintiff was in front of him. He lacks recollection of the time in between, which suggests inattention.
Having regard to my findings referred to above, that the plaintiff rode away from the broken line for some distance in a gradual path to the centreline, the defendant only made partial observations of that manoeuvre. He only observed or was attentive to the plaintiff slowing down and crossing the broken line, as he perceived it, and then in front of him. On his account, as soon as he saw the plaintiff slowing and crossing, it was apparent that the cyclist was not taking a steady forward course. If he had been paying attention, he would have observed the plaintiff gradually diverging from the broken line.

Relevant principles of breach of duty and standard of care

The Civil Liability Act 2002 governs the court's determination in identifying whether there has been a breach of the duty owed by the defendant. Section 11 sets out applicable general principles:
"11      General principles
(1)       A person does not breach a duty to take reasonable care unless –
(a)there was a foreseeable risk of harm (that is, a risk of harm of which the person knew or ought reasonably to have known); and
(b)       the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the position of the person would have taken precautions to avoid the risk.
(2)       In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things):
(a)       the probability that the harm would occur if care were not taken;
(b)       the likely seriousness of the harm;
(c)       the burden of taking precautions to avoid the risk of harm;
(d)the potential net benefit of the activity that exposes others to the risk of harm.
(3)       For the purpose of subsection (2)(c), the court is to consider the burden of taking precautions to avoid similar risks of harm for which the person may be responsible."
Section 12 sets out some other principles to be borne in mind:
"12 Other principles
In a proceeding relating to liability for breach of duty –
(a)the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
(b)the subsequent taking of action that (had the action been taken earlier) would have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute evidence of liability in connection with the risk."
The defendant relied upon the summary of principles set out by Evans J in Rayner v Cochrane [2011] TASSC 45 at [13]. I set out some of those which have general application and which have been articulated in light of ss 11 and 12 as to the standard of care and identifying whether there has been a breach. These principles are not in contention:
"•The exercise of reasonable care does not require a driver to drive in such a way as to be in a position at all times to anticipate anything that a pedestrian might do, or be in a position to reduce the speed of the vehicle to a level which will avoid any risk of a collision; Wensink v Marshall [2010] WASCA 117 at [54], citing Knight v Maclean [2002] NSWCA 314 at [68]; and also Mobbs v Kain [2009] NSWCA 301 at [4] and [101].
• The standard of reasonable care required of drivers is a high standard (because cars are dangerous) but it is not a standard measured by success or perfection assessed with the wisdom of hindsight; Hawthorne v Hillcoat (2008) 51 MVR 523 at [47].
• The question to be addressed is not whether different conduct on the part of those involved would have produced a different result, but whether the plaintiff has proved the defendant has not acted in accordance with reasonable care; Hamshere v Favelle [2009] NSWCA 4 at [21] referring to Derrick v Cheung (2001) 181 ALR 301 at [13]; and also see Dennis v Keep [2002] NSWCA 227 at [18].
• It is relevant to take into account s12 of the Act which provides that the fact that a risk of harm could have been avoided by doing something in a different way does not, of itself, give rise to, or affect liability for the way in which the thing was done; Mobbs v Kain at [92].
• The liability of a driver is not absolute or strict such as to require a driver (in the absence of a specific perceivable danger) to slow down to a speed where he could stop in any conceivable circumstances and avoid an accident. This would supplant the obligation to take reasonable care; the Act, s11, Mobbs v Kain at [101] and [103] and Knight v Maclean at [66]."
It is worth emphasising that the question is whether the driver failed to exercise reasonable care. Even if driving in a different fashion or at a lower speed might have avoided the collision, this is not sufficient. As stated by the High Court in Derrick v Cheung (2001) 181 ALR 301 at [13]:
"Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence. That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care."
Of course, this is one of the principles set out in the Civil Liability Act, s 12(1). It is also another way of expressing the court's obligation not to engage in retrospective reasoning.
The defendant drew upon a number of authorities in relation to breach of duty of care, seeking to draw analogies and distinctions with previous factual scenarios. In doing so, it was the defendant's case that the movement of the plaintiff into his path was entirely unexpected. It was submitted that, factually, the situation was akin to that in Stuart v Walsh [2012] NSWCA 186. In that case, a cyclist riding in a breakdown lane on a highway moved into the path of a truck in order to make a 90 degree turn out of that lane. It was held on appeal that there was error in finding the defendant truck driver negligent. In characterising the situation the defendant was in, it was said at [63] that the defendant "was forced to react to a sudden, unexpected and unheralded scenario when he observed a cyclist, suddenly and without warning, move into his path a relatively short distance in front of him".
It was argued that the facts of this case are distinguishable from those in Vale v Eggins [2006] NSWCA 348. In that case, a pedestrian stumbled away from the respondent driver's line of travel. The driver increased his speed up to the speed limit just before the appellant, without warning, turned and quickly stumbled back towards the lane in which the respondent was driving. It was held on appeal that the driver had been negligent. The judgment of Beazley JA, with whom McColl JA agreed, explained that there was negligence in that it was incumbent upon the respondent, having observed a danger on the roadway, to take such reasonable steps as were necessary to react to the danger. He needed to continue to drive in a manner that enabled him "to take reasonable steps to react to [the] events" that were occurring before him: Manley v Alexander (2005) 80 ALJR 413 at [12]. In Manley v Alexander, the appellant ran over the respondent, who was intoxicated and lying on the roadway. The accident occurred at night and the respondent was dressed in dark clothing. At the time, the appellant's attention had been drawn to another person at the side of the road and he continued to drive at the same speed. He took his eyes off the road to watch for that person for about two or three seconds. Commencing at [11], Gummow, Kirby and Hayne JJ stated:
"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.
12 It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Road at 4.00 am is properly to be described as remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events."

It can be seen that there is support for the notion that if there is a need for simultaneous attention, then reasonable care may require adjustment of speed and direction. Here, there was a need for the driver to give simultaneous attention to two cyclists and the road ahead. It is not possible to nominate a speed which might have been reasonable in the circumstances, as there was more at play than just speed.
It was submitted for the defendant in this case that the defendant did all that was humanly possible once he was faced with the unheralded and unexpected event, but that once the plaintiff made the move he did, a collision was inevitable. Further, to impose liability on the defendant in these circumstances would be to abandon the proper test for negligence, impose on the defendant with hindsight a standard of care dependent on perfection in terms of foreseeability, and rely on his lack of success in terms of the actions he took to try and avoid the collision. Of course, we return to the factual question of whether there was a sudden unheralded movement into his path.
To draw analogies and distinctions between this case and Stuart v Walsh and Vale v Eggins is largely an unproductive exercise. They are different cases and involve different facts. As I have found, the plaintiff's movement was not unheralded and sudden. It was a case of a gradual divergence from the edge of the road when the defendant was not being attentive.

The Road Rules

Before turning to an analysis of whether there was a breach of duty, I turn to a matter raised by both parties in submissions. Both the plaintiff and the defendant relied upon the Traffic (Road Rules) Regulations 1999 (the "Road Rules"). The plaintiff argued that what a reasonable man might have done in the circumstances is informed, at least in part, by the Road Rules. The defendant argued that the defendant's expectations of the plaintiff's movement are informed by the plaintiff's obligations under the Road Rules. For the purpose of the rules relied upon, a cyclist is a driver and a bicycle is a vehicle: rr 15 and 19.
The plaintiff relied on the following rules.
•     Rule 126 - a driver must keep a safe distance behind vehicles so that the driver can if necessary stop safely to avoid a collision with the vehicle.
•     Rules 132(2) and 134 - a driver should keep to the left of the centre of the road or the dividing line.
•     Rule 140 – a driver must not overtake unless it is safe to do so.
•     Rule 144 – drivers must keep a safe distance when overtaking.
It is submitted that these rules inform the defendant's obligations. The plaintiff submits that in the circumstances, the defendant was not permitted to cross the dividing line and he was obliged to keep a safe distance behind vehicles so that he could, if necessary, stop safely to avoid colliding with them.
It was submitted for the defendant that he was entitled to assume that the plaintiff would observe the rules of the road and continue to act prudently, taking normal precautions for his own safety. It was also submitted that the plaintiff's breach of the Road Rules demonstrated his negligence. The defendant asserts that the plaintiff has breached the following rules.
•     Rule 48, by failing to signal (see r 45(3)(c) as to the meaning of "changing direction").
•     Rule 125(1), by unreasonably obstructing the path of another driver or pedestrian.
•     Rule 129, by failing to keep as near as practicable to the left-hand side of the road.
•     Rule 253, specific to bicycles, by causing a traffic hazard by moving into the path of a driver or pedestrian.
(The defendant also relies upon the Reader's Guide at the commencement of the Road Rules with reference to the obligation to give way, as assisting with the operation of r 253).
As can be seen, both counsel submitted that it was demonstrated that the opposing party had breached the Road Rules. The Road Rules create offences, and to determine whether there has been a breach requires an evaluative exercise. It involves an enquiry beyond what is required to determine negligence. So, for example, r 126 involves a question about the meaning of "behind", and may involve a factual question of whether the vehicle was "behind" the bicycle at a time when it can be said that the defendant was too close to amount to a safe distance behind. The word "safely" must be given effect: Penrith City Council v East Realisations Pty Ltd [2013] NSWCA 64, per Tobias AJA. However, these considerations must, as a matter of common sense, be tempered by consideration of other matters, including the conduct of the plaintiff. Presumably this rule would not be invoked if the unsafe distance was created by the plaintiff pulling out in front of the defendant, creating the unsafe situation such that a collision could not be avoided.
Similarly, and relevant to the issue of the plaintiff's negligence, r 253 requires consideration of the meaning of "traffic hazard" before considering whether a "traffic hazard" was caused by the plaintiff's manoeuvre. The term "obstruction" is defined and includes a traffic hazard, but the term "obstruction" does not include a vehicle only because it is travelling more slowly than other vehicles. These rules do not clearly delineate what is or is not a traffic hazard. It would seem that whether or not there is a traffic hazard must depend on the context and that not all occasions involving a bicycle moving into the path of a vehicle will qualify as a traffic hazard. The question of whether a bicycle moves into the path of the car is not in itself a straightforward factual issue. The enquiry involved in determining whether the plaintiff caused a "traffic hazard", and assessing whether he is in breach of this rule, is a different line of enquiry to whether he has been negligent in the circumstances.
Further, the defendant relies on an obligation of drivers to drive as close as practicable to the left-hand side of the road. It is clear that this is not absolute in its application to bicycles, just as it is not in relation to cars. Bicycles, like cars, are permitted to make turns which would involve movement in their lanes. The Road Rules do not require a cyclist to stop at an intersection and cross perpendicularly to the road. Some movement within the lane must be contemplated as reflected in the expression "as near as practicable".
As a matter of principle, determining whether or not the plaintiff or defendant has breached the Road Rules does not resolve the question of negligence. In Sibley v Kais (1967) 117 CLR 424, the High Court explained that breach of regulations is not definitive of the respective duties of drivers to each other or in respect of themselves. Further, the breach of such regulations is not conclusive as to the performance of the duty owed: at 427. It was stated at 427 that, "whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation must remain a question of fact to be judged in all the particular circumstances of the case".
The fact that conduct is prohibited may be one factor pointing to the conclusion that reasonable care was not taken: Penrith City Council v East Realisations Pty Ltd, per Tobias AJA at [53], and also see McColl JA at [4]. In this case, it is unnecessary to determine the application of the rules that are relied upon. There is no single and clear rule that might have been breached by the defendant which advances the question of his negligence. The same situation applies with respect to the question of the plaintiff's compliance and contributory negligence.
The defendant advanced another argument relating to the Road Rules. It was submitted that a reasonable prudent driver was entitled to drive with the expectation that others will obey the Road Rules. As identified, however, the rules which apply to these factual circumstances are not absolute. The Road Rules set up competing obligations upon drivers in an attempt to regulate shared use of the road. Whether in the circumstances of this case it was reasonable for the defendant to act upon the assumption that the plaintiff would obey a particular rule or rules is not a useful question to explore. If the defendant's expectation was to be defined by reference to the Road Rules, then the defendant cannot be selective. It is all the road rules that bear on the situation. A raft of rules would be applicable and, as I have discussed, they involve an evaluative exercise. Compliance would depend on some factors not known to the defendant. The Road Rules do not point unequivocally to certain "compliant" cycling behaviour beyond the legitimate expectation that the plaintiff would take reasonable care - the need to take care for his own safety and those of other road users. There is not a rule couched in such definitive and unqualified terms such that the defendant could have proceeded with a confidently held expectation of the plaintiff's actions. For example, he might reasonably anticipate that if the plaintiff was going to turn right, he would signal before doing so. However, that does not dictate that the plaintiff might not move from the far left of his lane for some reason, such as to avoid a pothole or to allow his cycling companion to ride alongside him.
The defendant would naturally have an expectation or an assumption that the plaintiff would not move away from the edge without first looking out for traffic behind him. But that is no more than an assumption that the cyclist would take reasonable care, to which I will return. As will be seen, any assumptions that might have been held by the defendant that the plaintiff would take a consistent course and not diverge were challenged the moment the plaintiff slowed and began to diverge from the edge. The defendant has then witnessed an indication to the contrary. If the defendant held that assumption, it was no longer reasonable at that point, no matter why it was held, whether it was an expectation of compliance with a regulation, or because he assumed the cyclist would take reasonable care for his own safety.
In conclusion, I find it unnecessary to decide the ambit and application of the Road Rules invoked by the plaintiff and the defendant. Instead, I proceed to consider the question of whether reasonable care was taken by the defendant and the plaintiff.

Analysis: breach of duty

The particulars of the defendant's negligence asserted by the plaintiff are as follows:
"(a)      Drove too fast in the circumstances;
(b)       Failed to brake sufficiently or at all or in time to avoid a collision;
(c)       Failed to swerve sufficiently or at all or in time to avoid a collision;
(d)       Failed to heed the presence of the plaintiff on the roadway;
(e)       Drove into the path of the plaintiff's bicycle;
(f)       Failed to keep a proper lookout."
The particular of negligence set out in (c) was not pressed, no doubt in light of Sgt Carrick's evidence that the defendant reacted as any driver would do – braking heavily and swerving away to his right. The car was not under effective control because the wheels were locked and from this point, there was nothing more the defendant could do. Particulars (a) and (b) assert negligence with respect to the defendant's speed and failing to brake to reduce his speed. The particulars in (d) and (f) are allegations of inattention. Particular (e) is said by the plaintiff not to add anything to the other particulars.

Speed

In assessing the defendant's speed and level of attention, the following circumstances need to be considered. The defendant was approaching two cyclists who may not undertake manoeuvres in unison. One of the cyclists had turned to look at him, but the other had not. There was the prospect that one or both cyclists may be turning right at the junction. The view of Fingerpost Road was partially obscured by trees, and if the defendant needed to move into the incorrect lane due to the movement of the one of the cyclists, there was the prospect of a vehicle coming out onto Colebrook Road and travelling south on the other side of the road. The circumstances included the fact that either cyclist may have shifted to his right for some other reason, such as a mechanical difficulty with his bicycle or an obstacle in his path. There was a confluence of factors ahead being the T-junction, the prospect of vehicles entering Colebrook Road, or the cyclists leaving it or otherwise altering their course. If a cyclist or the cyclists did intend to turn right, the possibility they may do so by taking the turn wide and crossing from the edge of the lane to the centreline some distance before the intersection would not be abnormal or completely unexpected.
It is clear that there are inherent dangers when a cyclist and motorist share the road in close proximity. Motorists need to drive with those dangers in mind. The circumstances are all important. What is clear is that for the defendant, the situation ahead, even before the plaintiff began to shift across, required caution and his close attention.
Was the defendant entitled to assume that the plaintiff would continue on his course and not diverge from the left without checking the road behind him was clear? I consider that even if that was a reasonable expectation, there were still reasons why it was necessary for the defendant to reduce his speed. That he sped up on his immediate approach to the cyclists, to a speed of at least 95km/h, was not a prudent and safe response. If the defendant intended to pass the cyclists, the prudent and safe response would have been to reduce his speed, which would have given him opportunity to avoid a collision if one of the cyclists diverged into his path. A collision at 95km/h with a cyclist or another car travelling in the opposite direction would give rise to risk of very serious injury.
Having seen the junction and the section of road on the view, I am struck by how unsafe the defendant's speed was vis-à-vis a cyclist. His speed amounted to a clear breach of duty to other road users, including the cyclists.

Inattention

The circumstances that the defendant was in demanded his close attention. Approaching the cyclists, before any divergence from the broken line by the plaintiff, a reasonably prudent driver would have been driving poised for a quick reaction and alert to the movements of the cyclists. Referring to the evidence of Sgt Carrick, it was a situation where danger would reasonably be expected. He should have been alert and attentive, such that he was able to react quickly as he approached the cyclists. The defendant did not observe the plaintiff start to diverge from the edge; the defendant failed to heed the presence of the plaintiff. The plaintiff was gradually shifting on a shallow angle of less than 20 degrees and the defendant should have observed him as he commenced to do so. Given this finding, the defendant thereby failed to keep a "proper" lookout. It seemed that perhaps the defendant was not sufficiently cognisant of the danger that his presence posed to the cyclists. According to the defendant's observations, he observed the plaintiff slowing and crossing the broken line. If that was so, that should have been enough to alert his attention to a possible change in direction. Certainly, his conduct in speeding up suggests a complacency or lack of appreciation of the danger of his motor vehicle and the plaintiff's bicycle being in close proximity. Further, it seems his own response of swerving to the right was not until he was "certain" the cyclist was going to turn.
The defendant may have been distracted by passing two cyclists. If that was the case, and if as a consequence his level of attention was impaired, then an adjustment to his speed was required to compensate for this impairment. The need for the defendant to give simultaneous attention to the road ahead and the two cyclists required that he reduce his speed to allow him to pay adequate attention to these matters. Speed and capacity to make adequate observations and react to such observations are inextricably linked.
Any assumption the defendant made about the cyclists maintaining their forward path on the far left-hand edge of the lane did not negate the need for him to continue paying attention to them. Moreover, it is clear that any assumption or expectation that the defendant may have held that the cyclists would maintain their path was unreasonable once the plaintiff started to make his gradual move from the edge of the road.
At the moment the plaintiff began to diverge, the defendant should have been alerted to a situation of uncertainty that required that he brake and afford distance between his car and the cyclist so as to avoid a collision if the cyclist continued into his path. At this moment, the plaintiff's course became unclear; he may have been intending to cross, to take up a more central position in the road, or intending to ride two abreast with his companion. If the defendant had been attentive in the circumstances, the divergence would not have been sudden; it "heralded" a change in the situation. A reasonable prudent driver exercising a reasonable degree of care and skill would have been paying close attention, would have drastically reduced his or her speed and continued to drive attentively to the potential danger in front of him or her.

Causation

It has not been contended on behalf of the defendant that the defendant's breach of duty, if established by the plaintiff, as it has been, was not causative of the harm to the plaintiff. However, it is in issue on the pleadings, denied in the defence, and I shall proceed to make a determination with respect to it.
General principles of causation are set out in s 13(1) of the Civil Liability Act:
"13 General principles
(1) Prerequisites for a decision that a breach of duty caused particular harm are as follows:
(a)the breach of duty was a necessary element of the occurrence of the harm ('factual causation');
(b)it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused ('scope of liability')."
It can be seen that the provision divides the determination of whether negligence caused particular harm into two separate elements: factual causation and scope of liability. Factual causation is determined by the "but for" test: but for the negligent act or omission, would the harm have occurred: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 429 at [42]-[45], confirmed in Strong v Woolworths Ltd (2012) 246 CLR 182 at [18].
Here, the "but for" test has been established. It is more probable than not that, but for the defendant's failure to keep a proper lookout and his speed, which was excessive in the circumstances, the collision would not have occurred. If not for his driving, negligent in these respects, he would have observed at an earlier time the plaintiff's divergence from the broken line. This would have provided him with vital seconds on his approach to the plaintiff, giving him time to reduce his speed and/or avoid colliding with the plaintiff. Calculations performed by the plaintiff in closing submissions revealed the significance of the defendant's inattention, demonstrating that had the defendant reacted as though to an expected hazard, even at a speed of 100km/h, he could have braked to avoid the plaintiff.
Of course, the defendant was not only inattentive but also travelling at an excessive speed. Arguably, his inattention was so significant that on its own it amounted to negligence causative of the collision. However, that does not need to be decided and it is artificial to extract one aspect of his negligent conduct and subject it to the "but for" test in isolation. If the defendant had driven as a reasonable prudent driver, he would not have been travelling at the speed of 95-100km/h in close proximity to the plaintiff. If he had reduced his speed as he should have done in his approach to the cyclists, then, at the point in time that the plaintiff diverged, he would have covered less distance during the perception reaction time and his stopping distance would have been less. Having regard to the defendant's conduct as a whole, his speed of 95-100km/h and his inattention was clearly causative of the collision. It has been proved that but for the defendant's negligence, being his inattention and excessive speed having regard to the circumstances, the collision would not have occurred.

In relation to the scope of liability in s 13(1)(b), s 13(4) provides that "for the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty". This involves application of policy considerations that inform the judgment of whether legal responsibility should attach to the defendant's conduct: Strong v Woolworths at [19]. Here the scope of liability determination is uncontentious and presents no difficulty. Factual causation having been proved, it is appropriate that the scope of the defendant's liability extends to the harm that the plaintiff suffered.

Contributory negligence

The defence asserts that the collision was wholly caused by the negligence of the plaintiff. In the alternative, the defendant pleads contributory negligence. The pleadings of negligence and contributory negligence are the same and provide:
"(a) failed to keep any or any proper lookout;
(b)failed to give any or any adequate signal of his intention to turn right at the intersection of Colebrook Road at its intersection with Fingerpost Road;
(c)suddenly rode directly to his right, across the path of the vehicle being driven by the Defendant, without providing any warning of his intention so to do and/or when the proximity of the vehicle being driven by the Defendant to his bicycle rendered inevitable collision between the vehicle that the Defendant was driving and the bicycle he as riding;
(d)endeavoured to effect a right hand turn into Fingerpost Road from the turnout lane immediately to the left of that lane of Colebrook Road that is provided for north bound vehicular traffic instead of endeavouring to effect such turn from within the north bound lane and as nearly as practicable to the centre lines on Colebrook Road dividing the lanes provided for north and south bound traffic."
My findings are set out above. There is no dispute that the plaintiff did not look behind him immediately before diverging from the edge of the road. He looked behind once, saw the defendant's car, rode along the broken line for a distance and then gradually moved away from the edge without looking again.
I have rejected the plaintiff's account that he gave an arm signal before diverging from the edge of the road. He did not give any such signal.
I have found that his angle of divergence from the edge of the road was slight and that he gradually moved away from the edge.
I have found that he endeavoured to effect a right-hand turn from the edge of the north-bound lane, not from the turn-out lane. I have not accepted the defendant's account that the plaintiff crossed the dividing line between the turn-out lane and lane travelling north.

Analysis: breach of duty

It is clear that the plaintiff has breached his duty of care to other road users by failing to look before diverging away from the edge of the lane. He knew that there was a car approaching him. He made an assumption about the speed of the car that it was travelling at approximately 70km/h which was inaccurate. Even if the assumption was correct for the duration of his observation, the speed of the motor vehicle may have increased in the time that lapsed before he diverged, when he rode on before beginning to depart from the edge. To move from the edge of the road, without looking, acting on such an assumption is fraught with risk.
The submissions for the defendant have pointed to calculations that reveal that a motor vehicle travelling at 100km/h, will cover a distance of 60m in 2.16 seconds, and a motor vehicle travelling at 70km/h will cover that distance in 3.08 seconds. This was relied on to make the point that if the plaintiff had continued on his path along the broken line for just 3 seconds longer, the defendant would have gone past. Noting that the plaintiff was travelling at between 10km/h and 15km/h, he would have travelled the distance of 60m to the intersection in between 14.4 and 21.6 seconds. If the plaintiff had waited for 3 seconds before commencing his turn, he would have travelled, at most, an additional 12.5m by the time the defendant passed him, leaving him at least 47.5m before he reached Fingerpost Road. He had plenty of time and distance to effect his turn. There was no justification for him taking the risk that he did. He could simply have waited a few seconds to allow the car to go past him. The obvious point is also shown that the difference in the motor vehicle's speed between 70 and 100km/h translates into less than one second's difference over a distance of 60m. It was pointed out by the plaintiff that he would have safely crossed if he had been correct about the speed of the car and that speed had been maintained. However, the more significant point is that on his own assessments of the speed of the car he placed himself on a collision course with approximately one second to spare. I expect the plaintiff assumed that the vehicle behind him would reduce its speed and safely accommodate his presence in the lane and his turn across the lane. Any such assumption bespeaks complacency. The plaintiff was negligent in failing to keep a proper lookout.
The plaintiff should have signalled his intention to turn right before beginning to effect that turn and diverging from his path. If he had done so, it would have provided the defendant with additional notice.
I conclude that the plaintiff's conduct in moving from the lane without looking, and without signalling before beginning to effect that turn, amounts to a breach of the duty to take care of himself and that which he owed to other road users, particularly the defendant and his passengers. I do not find that executing a sweeping turn into Fingerpost Road was in itself, that is, in a vacuum without regard to the circumstances, inherently unsafe. I note that Mr Dunn was to execute a similar manoeuvre and was to commence his turn before he reached the junction. Whether it was safe or prudent would depend on all the circumstances, such as line of sight into the intersection of Fingerpost Road, and along Colebrook Road, and whether the road was clear. In this case, it was part of this manoeuvre away from the edge into the main part of the lane and across the path of vehicles behind him, which was clearly negligent in the circumstances of this case.

Causation

The plaintiff's negligence was a necessary element of the harm. The "but for" test has been established. If the plaintiff had looked again before diverging, he would have appreciated the defendant's speed was faster than 70km/h and approaching 100km/h. Allowing for the fact that the vehicle would then have been significantly closer than when he last looked, the likelihood is that he would have waited until the vehicle had passed.
Factual causation having been proved, it is appropriate that the scope of the plaintiff's liability extend to the harm that the plaintiff suffered. The plaintiff's negligence contributed to his injuries.

Just and equitable apportionment

Windeyer J stated in Teubner v Humble (1961) 108 CLR 491 at 504: "The degree of care that must be exercised in any operation varies with the risk involved … . When both are at fault the question is how far in the circumstances did the motorist depart from the standard of care of a reasonable man driving a motor car, and the pedestrian from the standard of care of a reasonable pedestrian."
In comparing the extent to which the plaintiff and defendant departed from the standard of care of a reasonable cyclist and motorist, I note the following considerations. The circumstances cried out for the defendant to take care in the vicinity of the cyclists. They were vulnerable and their vulnerability was obvious. To travel at a speed of more than 95km/h in close proximity to them was fraught with danger. To do so, inattentive to the plaintiff cyclist and his movements, represents a substantial departure from the standard of care required. The combination of speed in the vicinity of a vulnerable road user, combined with inattention, is an obvious departure from the standard of care required. The danger, if it eventuated, would be likely to result in fatal or serious injury to the cyclist and also, would place passengers in the motor vehicle at risk of such injury.
The failure of the cyclist to look before diverging in order to cross the lane when there was a vehicle approaching, and without signalling his intention to do so, was a significant departure from the standard of care required of him. His gradual deviation at a slight angle, as I have found, for some distance, when he was conspicuous and easily seen, suggests that his contribution should not be substantial. I accept that his conduct not only put himself at risk but others too. There was a risk that in taking evasive action, the driver and passengers could be injured or killed. There was also such a prospect in the event of a collision.
Making a comparison of the departures from the respective duties of care, I conclude it is just and equitable between the parties that the plaintiff be held liable for his own injuries to the extent of 30%.

Conclusion

I am persuaded that the defendant's liability has been established. I find the plaintiff's negligence contributed to his injuries to the extent of 30%. I will hear from the parties as to orders.