Singh v Ward
[2022] VSC 155
•29 March 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S ECI 2020 03312
| GURTEJ SINGH | Plaintiff |
| v | |
| GRANT GEOFFREY WARD | Defendant |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 February, 1–4, 7 March 2022 |
DATE OF JUDGMENT: | 29 March 2022 |
CASE MAY BE CITED AS: | Singh v Ward |
MEDIUM NEUTRAL CITATION: | [2022] VSC 155 |
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NEGLIGENCE – Motor vehicle accident – Pedestrian struck on highway – Pedestrian out of vehicle to change drivers – Driver did not see collision – Whether plaintiff contributorily negligent – Whether collision occurred in emergency lane or northbound left lane – Whether plaintiff parked car in safe position – Defendant 90% liable for collision – Plaintiff 10% contributorily negligent.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis and Mr T Nathanielsz | Slater & Gordon Limited |
| For the Defendant | Mr WR Middleton QC and Mr AW Middleton | Transport Accident Commission |
TABLE OF CONTENTS
A. Background................................................................................................................................... 1
B. What happened in the accident?............................................................................................... 1
B.1The general area and the parties’ positions....................................................................... 1
B.2The evidence........................................................................................................................... 4
B.2.1 General approach....................................................................................................... 4
B.2.2 The police report........................................................................................................ 6
B.2.3 The debris.................................................................................................................... 8
B.2.4 Mr Ward’s evidence................................................................................................... 9
B.2.5 Mr Singh’s evidence................................................................................................. 12
B.2.6 Ms Kaur’s evidence.................................................................................................. 13
B.2.7 Mr Lamba’s evidence............................................................................................... 14
B.2.8 Mr and Ms Ades’s evidence................................................................................... 15
B.2.9 The damage to Mr Ward’s car................................................................................ 20
B.2.10 Jones v Dunkel........................................................................................................ 21
B.3Conclusions as to what happened.................................................................................... 21
C. Conclusions on liability............................................................................................................ 25
C.1 Is Mr Ward liable?................................................................................................................ 25
C.2Was Mr Singh contributorily negligent?.......................................................................... 26
D. Disposition................................................................................................................................... 28
HIS HONOUR:
A. Background
Gurtej Singh, the plaintiff, along with his wife Ms Kaur, his mother-in-law, his two-year-old daughter, and a friend, spent a hot summer’s day in Sorrento and Queenscliff on New Year’s Eve of 2014. In the afternoon they left to drive northwards back to Melbourne along Peninsula Link, which is a four-lane, divided highway. Mr Singh was driving, was not familiar with that road and was following his Toyota Prius’s GPS directions system. His friend, Amardeep Lamba, was in the front passenger seat, and Ms Kaur, his mother-in-law and his daughter were in the back seat. The weather conditions were fine. The traffic was not particularly heavy. His two-year-old daughter started crying loudly and could not be settled. After some time, Mr Singh decided to stop the car, so that he could swap seats with Mr Lamba and assist in trying to comfort his daughter. He pulled over, using the emergency lane, between the Bungower Road exit and the Baxter exit (or Frankston-Flinders Road exit) at a point where there was a gentle sweeping bend to the right. He opened his door, got out, closed his door, and was walking towards the front of his car when he was struck from behind by a car being driven at approximately 100 kilometres per hour by Grant Ward, the defendant. There were two independent witnesses to the accident, Benjamin and Nicole Ades, who were driving behind Mr Ward’s car and saw the accident unfold in front of them.
Mr Singh has sued Mr Ward for damages in negligence. Mr Ward has denied that he drove negligently, and has alleged, in the alternative, that Mr Singh was contributorily negligent. There is a dispute as to where Mr Singh stopped his car and whether he did so in a safe place. There is also a dispute as to whether Mr Ward drove across into the emergency lane and hit Mr Singh there, or whether Mr Singh stepped into the northbound left lane.
B. What happened in the accident?
B.1. The general area and the parties’ positions
There is a part of the highway, in the general area of the collision, that passes over an old railway line or creek in a north–south direction. Along this elevated section there is a green steel barrier to the left (when travelling north) of the emergency lane (‘the green bridge’). After the green bridge stops, to its north, there is a cable safety barrier that runs for at least 100 metres. Alongside the cable safety barrier there is a few feet of concrete that runs between it and the left edge of the bitumen emergency lane. The emergency lane itself has the typical dimensions of an emergency lane on a major, modern highway. After the cable safety barrier has ended, there is an open grassed area to the left of the bitumen of the emergency lane. These features can be seen in the photographs shown below, that were taken by Mr Ward the weekend before the hearing commenced.[1] The photograph to the left is looking south, and the photograph to the right is looking north. The car is Mr Ward’s work car and not the car involved in the collision. This
[1]The licence plate in the first photograph has been redacted.
is the position that Mr Ward said Mr Singh’s car was in when he struck Mr Singh.
Mr Singh tendered a police photograph that was taken when he was being attended on by an ambulance officer shortly after the accident, a copy of which is set out below.[2] That photograph shows Mr Singh’s car parked facing north with the right half of his car in the emergency lane and the left half his car on the open grassed area to the left of the emergency lane. That photograph was taken at a point after the green bridge and the cable safety barrier. Mr Singh said that this was the position of his car when he was struck by Mr Ward. That location is to the north of the elevated section of the highway, and after the safety barrier has ended.
[2]The licence plate in this photograph has been redacted.
Mr Ward is familiar with the road. He did not stop at the scene of the accident, but did return to it shortly afterwards, at which time Mr Singh’s car was in the position shown in the police photograph. Mr Ward contended that Mr Singh’s car had been moved in the meantime. Mr Ward estimated that there was about 300 metres between where he said the car had been at the time of the accident and the position where Mr Singh said his car had been.
Mr Singh was knocked forward by the collision, his leg was broken, and he had to be assisted back to his car by Mr Lamba and Ms Kaur. Ms Kaur did not then have a licence, and neither did Mr Singh’s mother-in-law. Accordingly, Mr Ward’s contention amounted to a contention that Mr Singh was brought back to the car, placed in the passenger seat, and then Mr Lamba drove the car from the location where the accident happened about 300 metres or so to a safer area with its tyres on the grass verge.
I should note that:
(a) if the car had been positioned as shown in the police photograph, then there would have been, in my view, sufficient distance between the right-hand side of the car and the left side of the northbound left lane for Mr Singh’s decision to stop in that position and to exit his car to be beyond criticism; and
(b) if the car had been positioned as shown in Mr Ward’s photograph, then the car would still have been entirely within the emergency lane, and there would still have been sufficient room for Mr Singh to open the driver side door and to get out and then to walk around the front of his car without the door or him necessarily moving into the northbound left lane. However, Mr Singh would have been much closer to the northbound left lane than if his car had been parked with half of it on the grass verge.
B.2. The evidence
B.2.1. General approach
The evidence concerning the position of Mr Singh’s car at the time of the accident included a police report that was completed the same day, evidence from Mr Singh and others in his party, evidence from Mr Ward, evidence from Mr and Ms Ades, and evidence in relation to the location of, or absence of, debris from the accident. Mr Singh, Ms Kaur, Mr Lamba and Mr Ades each said that the car had not been moved and that the car was in the location shown in the police photograph, half on the emergency lane and half on the grass verge, at the time of the accident. None of these people had made a statement at the time of or shortly after the accident, and so each was giving evidence in March 2022 as to what had happened in December 2014 unassisted by any contemporaneous record of events. Some of the witnesses had in more recent years been interviewed for the purpose of this case, and the persons interviewing had typed up their versions of what the witnesses had said. On two occasions, those versions were signed by the person interviewed. There were many inconsistencies, or tensions, in the evidence.
There are starkly diverging views on how and where the accident occurred. I am required to form a view having regard to the whole of the evidence, but I am not required either to accept or to reject the entirety of any particular witness’s evidence, and am able to accept some parts of it and to reject other parts of it.[3] I can use the impressions I formed of the way in which the witnesses gave their evidence, and the extent to which their evidence accords with what I consider to have been likely behaviour in the circumstances having regard to human experience and commonsense. Also, as Mr Ward pointed out, I must bear in mind that recollections with the passage of time may, with the best will in the world, become distorted by unconscious bias[4] and even through the process of coming to court to give evidence for one side, rather than the other side, in a dispute.[5] Ultimately, my decision is to be on the balance of probabilities, doing the best I can on the evidence led, with the onus remaining on Mr Singh to establish any negligence on the part of Mr Ward, and the onus on Mr Ward to establish any contributory negligence on the part of Mr Singh.
[3]See, eg, Cubillo v Commonwealth (2000) 103 FCR 1, 45 [118]–[125] (O’Loughlin J).
[4]See Onassis and Calogeropoulos v Vergotis [1968] 2 Lloyd’s LR 403, 431 (Lord Pearce).
[5]Nominal Defendant v Cordin (2017) 79 MRV 210, 240–46 [165]–[166] (Davies J).
I will first refer to some of the more important parts of the evidence that was presented, in the course of which I will make some comments. Then, at the end, I will express my findings as to what probably happened.
B.2.2. The police report
The contemporaneous police incident report records that ‘both vehicles moved from point of collision’, and has a diagram of two cars with Mr Singh’s car in the emergency lane with its right side hard up against the solid line separating the emergency lane from the left lane. That position is inconsistent with Mr Singh’s car being half on the emergency lane and half on the grass verge adjacent to the emergency lane. The police report also describes Mr Singh as ‘walking on carriageway against traffic’, which, according to Detective Hardisty, the officer who completed the report back when he was a junior constable, means that Mr Singh walked ‘onto the road’.
The incident took place more than seven years ago and Detective Hardisty no longer had any recollection of speaking to any of the persons present at the time. Detective Hardisty said that his principal duty was to remain with Mr Ward as it was Mr Ward who had struck Mr Singh, to test Mr Ward for alcohol, and to ‘get a story’ from him. So it would make sense that Detective Hardisty was given Mr Ward’s version of events. The incident report has Mr Singh’s and Mr Ward’s contact details on it. Mr Singh was badly hurt and in the hands of ambulance officers. The report does not include Mr Lamba’s or Ms Kaur’s, or Mr Singh’s mother-in-law’s names or details. Detective Hardisty said that if there had been another witness that was known to him, he would have put that in the report. There were several other police officers present, and Detective Hardisty also said that if the other police present had obtained information that would have assisted from those in Mr Singh’s party then they should have passed that information on to him and he would have included it in the report. In these circumstances, if the other members of Mr Singh’s party were sources of relevant information, or had acknowledged that Mr Singh had walked into the northbound left lane or that his car had been moved significantly since the accident, I would have expected this to have been noted in the report. The absence of a reference to any of Mr Singh’s party suggests that neither Detective Hardisty nor the other officers present spoke to any of them about these matters. The fact that Ms Kaur and Mr Lamba believed that they spoke to the police on the day does not amount to evidence that they were asked for and gave their versions of how the accident happened.
Mr Ward also relied on a ‘CAD Event Report’ which is a ‘computer aided dispatch’ record prepared at the time by the emergency services. This document has a note ‘PT NOW SITTING IN CAR PULLED OVER ON SIDE OF RD’. This does not, to my mind, indicate that somebody has told the police that the car has been moved after the incident, as it is equally consistent with a simple description given by the police of where the car was when the police arrived.
Detective Hardisty did say that he ‘wouldn’t attend a scene and only take the version of one person of events to be the correct version’. Detective Hardisty was an impressive witness. But this assertion did not sit comfortably with his evidence that if there had been a witness known to him he would have ‘put them in the report’ and ‘grab their details and what they observed’. He was at the time a junior constable and not the lead officer present at the scene. Ms Kaur and Mr Lamba would have been under stress at the scene. They spoke with thick accents and had, on occasions, to communicate through an interpreter, particularly when upset, so it may not have been easy for a junior constable, whose first language was English, to obtain details from them. This is not to say that communication barriers should have prevented the police officers attending the scene from obtaining information from witnesses, but it is a possible explanation. Be that as it may, in all the circumstances, I consider it probable that the information in the police report came from Mr Ward, and was accepted by the police, and that they did not obtain details from Mr Singh or his party as to where on the road Mr Singh was when he was hit, or where precisely the car was located when he was hit. In this way, the conclusions expressed in the police report cannot be seen to be admissions by Mr Singh or to reflect prior inconsistent statements by him, Ms Kaur, or Mr Lamba.
The police incident report is relevant, however, because it establishes that Mr Ward asserted that Mr Singh’s car had been moved at the first available opportunity; it was not a recent invention by him. That said, there is nothing in the incident report that indicates that Mr Ward had then said that Mr Singh’s car had been moved some 300 metres from a completely different area to the south. The incident report merely mentions that Mr Singh’s car had been moved, and, by reference to the diagram contained on it, moved from a position where it was stopped with its right edge on the boundary of the emergency lane to a position where it was much further to the left. The incident report is consistent, for example, with the accident having taken place in the general area where the car had stopped, but with the car afterwards having been moved only a few metres but further away from the road.
B.2.3. The debris
Mr Ward’s car had its left external side-view mirror damaged in the collision. Photos taken by the police after the accident show the mirror dangling by electrical cables and its white plastic cover absent. There was no evidence that there was glass from the mirror or the white cover in the area where Mr Singh’s car was parked by the time the police and ambulance officers arrived. Detective Hardisty said, and I accept, that if there had been any debris in the vicinity of the car at the location it was when he arrived then he would have taken a photo of it. The police did photograph the damage to Mr Ward’s car, and it would make sense that they would photograph any debris that they associated with that damage. I am prepared to assume that there was no obvious debris at this point.
That does not establish that the accident did not take place where Mr Singh said. It is possible that the debris from the mirror was located further down the road, bearing in mind that Mr Ward said that his mirror had bounced against his car after he drove off after the accident and indeed that it was that noise that ultimately notified him that something must have happened. I refer to this evidence below.
However, Mr Ward said he had gone back approximately a week after the accident and had located the white cover from his external mirror in the vicinity of where he said the accident had occurred. This evidence, if correct, would be powerful evidence that the accident had taken place at the location mentioned by Mr Ward. Mr Ward also said that after the accident a police car stationed itself at the position where he found the mirror cover approximately a week later, and that the police had indicated to him that they knew that that was the position of the accident.
There is, however, reason to doubt Mr Ward’s evidence that a week later he had located his mirror cover 300 metres south of the location of Mr Singh’s car as shown in the police photograph. First, Mr Ward had not kept or taken any photographs of the debris. Second, and more significantly, he did not mention the fact that he had done so in a statement that he made and signed on 8 July 2019 to an investigator for the Transport Accident Commission (‘the TAC’), despite him asserting in that statement where he said the accident had taken place and that Mr Singh’s car had been moved after the accident. That omission is surprising, and remained unexplained. And third, it is also surprising, if an obvious piece of debris were in the location where a police car was stationed, that those police officers did not notice, and collect or at least record, its existence. A pedestrian had been hit at high speed, and Mr Ward had asserted that he was not responsible in part on the basis that the car had been moved from the place where the accident took place. One would expect the police to observe and to make a record of any obvious debris if they saw it. Of course, it is also possible that any police car to the south of Mr Ward’s car was there to provide a warning to oncoming motorists that an accident had taken place, rather than to participate in any investigatory process.
B.2.4. Mr Ward’s evidence
Mr Ward gave evidence in a straightforward manner. He said that he was travelling to the left of centre of his lane in his normal driving position. He said that he saw Mr Singh’s car when he was about 400 or 500 metres away, and that it was ‘probably 40 to 50 centimetres’ inside the white line, by which he must have meant 40 to 50 centimetres inside the emergency lane. He said that when he was two or three seconds away he saw Mr Singh open his door, and then ‘scoot around’ the door and move about 30 centimetres into the northbound lane. Mr Ward did not say that he took any evasive action. Rather, he said that he ‘just continued around the corner’, by which I took him to be saying that he continued in the same position within his lane as it curved to the right. He said that he heard a sound, but did not realise that he had hit Mr Singh until he heard his mirror banging against his door several seconds and some 150 to 200 metres later and he looked in his internal rear-view mirror.
However, there were significant difficulties with parts of his evidence, as follows:
(a) Mr Singh’s case was that Mr Ward did not stop after the accident, or call the police, until after he had been made aware that he had been seen by Mr and Ms Ades, who had followed him after the accident. It would have been a ‘hit and run’ if Mr and Ms Ades had not seen the accident and followed Mr Ward. This was said to indicate a consciousness of guilt. Mr Ward denied this. He said that it took him a short time to realise what had happened, but that he then took the next exit, pulled over, and was on the phone to ‘000’ by the time Mr and Ms Ades approached him. That evidence was given in a direct and definite manner. No doubt was expressed. When the hearing commenced, the parties had transcripts of the ‘000’ calls. These initial transcripts did not contradict Mr Ward’s evidence. However, it emerged during the hearing that these transcripts were incomplete, and so the actual recordings of the ‘000’ calls were tendered, along with further agreed transcripts of those recordings. The recordings and subsequent transcripts revealed that Mr Ward’s evidence was wrong. They revealed that, in the opening part of his call, Mr Ward informed the ‘000’ operator that ‘another guy has already called the police’ and that ‘apparently the police are on their way’. These comments are consistent only with Mr Ward calling ‘000’ after he had been contacted by Mr and Ms Ades and told that they were on the phone to the police. They compel a conclusion either that Mr Ward was giving dishonest evidence in this respect, or that his recollection was unreliable.
(b) Mr Ward seems to have told the police, based on the police report, that Mr Singh’s car had been at the extreme right edge of the emergency lane such that Mr Singh could not have opened the door or exited the car without encroaching into the northbound left lane. But that was not his evidence in court. In court, he said that Mr Singh’s car was ‘probably 40 to 50 centimetres’ inside the white line, by which he must have meant 40 to 50 centimetres inside the emergency lane, as his estimate was that Mr Singh was about 30 centimetres inside the northbound left lane when he hit him, and that this was a safe position to stop (but not from which to exit) the car. This difference between the version given in evidence and the diagram in the police report was not explained. It is possible, as was suggested by Mr Singh’s counsel, that he changed his evidence so as to prevent an argument that, if Mr Singh’s car was right on the edge of the northbound left lane (rather than inside the emergency lane), he should have slowed down or moved to the right or kept a particularly close lookout.
(c) The police photograph of Mr Ward’s car shows that it hit Mr Singh with the front part of the wheel arch over its front left wheel. The damage to the panel was significant. Mr Singh was upright when he was hit. As noted above, Mr Ward said that he saw Mr Singh’s car as he approached, that he saw Mr Singh open his door, and that he saw him ‘scoot around’ the door and about 30 centimetres into his lane, but that he did not appreciate that there had been a collision until well after he had passed Mr Singh when he heard his side mirror banging against his car and looked in his rear-view mirror some 150 to 200 metres down the road. It is inconceivable, in my view, that if Mr Singh had moved into Mr Ward’s lane, and Mr Ward were looking forward or even (as he said) slightly to his left, that Mr Ward would not have been aware, immediately, that he had hit Mr Singh. His failure to observe the collision or to appreciate immediately that he had hit Mr Singh, in light of the location of the damage and the fact that he had seen, he said, Mr Singh get out of his car indicates that Mr Ward was not, in fact, keeping a proper lookout as he arrived alongside Mr Singh’s car. This causes me to doubt his evidence that he saw Mr Singh move 30 centimetres or so into the northbound lane prior to the collision and allows for the possibility that in fact Mr Ward remained in the emergency lane and the collision occurred because Mr Ward drifted into it.
(d) In the statement that Mr Ward gave to TAC’s investigator on 8 July 2019 referred to in para 19 above, Mr Ward said that he observed Mr Singh’s door opening, but he did not say that he saw Mr Singh leave his car or that he saw Mr Singh move into Mr Ward’s lane. Again, if Mr Ward were observing Mr Singh as he approached and he saw Mr Singh move from the emergency lane into the northbound left lane, then, because that material would have been exculpatory, I would have expected Mr Ward to say this in his statement in clear terms.
(e) In his evidence-in-chief, immediately after saying that Mr Singh had moved about 30 centimetres into his lane, Mr Ward was asked whether he had ‘deviated’ or to describe the path he took. He said that he ‘just continued round the corner’. That is, he conveyed that he continued on without taking any evasive action. But, in his 8 July 2019 statement, Mr Ward said that he steered his car ‘slightly to the right’ immediately prior to the collision.
It is, perhaps, surprising that in the statement that he gave to the TAC’s investigators Mr Ward described Mr Singh’s car as red, when it was white. It seems that Mr Singh was wearing red, or earth-coloured trousers, and there were red marks left on Mr Ward’s car in the indent from where his car had struck Mr Singh. This, perhaps, suggests that Mr Ward’s recall has been affected by a degree of reconstruction, but I do not consider that this is a significant mistake.
B.2.5. Mr Singh’s evidence
As noted above, Mr Singh was unfamiliar with the road and stopped to change drivers because his baby was upset and this was distracting him. He said that he stopped his car in the position shown in the police photograph, which gave him one to two metres between his car and the northbound left lane, put on his hazard lights, did a ‘head check’, ‘waited for a clearance’, then half-opened the door and got out and closed the door. He said that he was then inside the emergency land about a metre from the northbound left lane. Then, after he had started to walk to the front of his car, he was hit from behind. He had not seen Mr Ward’s car. He was helped back to the car, and was in a lot of pain. He said that no one moved the car prior to the police and ambulance arriving.
In cross-examination, he was taken to a diagram he had drawn in answer to interrogatories. The diagram was drawn without him having looked at the police photograph. It has his car’s left wheels at the border between the emergency lane and a grass verge, rather than half-way across that verge. But it does show his car a significant distance from the northbound lane. He said: ‘all I can recall is that my car was a little bit on the grass.’ He maintained that he never entered the northbound left lane.
Although the diagram is inconsistent with the police photograph, it is consistent with the accident happening away from the position that Mr Ward said it happened, and in the vicinity, albeit not as far to the left, that Mr Singh said.
Both Mr and Ms Ades, both of whom had a clear view of the lead-up to the accident and who had no pecuniary stake in the outcome of the case, and if anything were minded to assist Mr Singh rather than Mr Ward, said that the hazard lights were not on. I accept this evidence. It follows that I reject Mr Singh’s evidence in this respect.
B.2.6. Ms Kaur’s evidence
Ms Kaur, Mr Singh’s wife, was seated in the back seat on the left side. Her mother was next to her, and her baby on the other side of her mother. She confirmed that Mr Singh stopped the car so that he could try to settle their upset baby. She said that:
(a) her husband parked in the way shown in the police photograph, and that no one moved the car after the accident and before the police and ambulance arrived; and
(b) after the impact, she saw Mr Singh’s turban fly through the air, and Mr Ward’s car move from the emergency lane into the northbound lane.
However, Ms Kaur also said that she saw (and by implication that she can remember seeing) her husband first do a ‘head check’ by looking over his right shoulder, then turn on the hazard lights, and only then exit the car.
I accept Ms Kaur’s evidence that she saw her husband’s turban fly in the air when he was hit and that this was, clearly enough, very distressing. I do not accept her evidence that she saw her husband first do a head check, and then turn on the hazard lights, before exiting the car. It seems unlikely that she would have been watching her husband this carefully when there was no particular cause for her to do so at the time and she was also tending to her distressed baby. But also, as stated above, both Mr and Ms Ades, both of whom had a clear view of the lead up to the accident and who had no pecuniary stake in the outcome of the case, said that the hazard lights were not on. I prefer their evidence in this respect. It is likely that the hazard lights were not turned on until after the accident. I consider that Ms Kaur was saying that she could remember her husband turning on the hazard lights, when she had no such memory, because she thought that doing so would benefit her husband’s case. The alternative is that her memory, expressed with definiteness, is flawed because of her later becoming aware that the hazard lights had been turned on, or was a reconstruction based on what she considered to be her husband’s usual practice.
Also, as noted above, Ms Kaur indicated several times that she saw Mr Ward’s car move from the emergency lane into the northbound left land. Then, under cross-examination, she accepted that she couldn’t say that Mr Ward’s car was in the emergency lane at the time of the collision because she hadn’t seen it. Then, in re-examination, she said again that she did see it in the emergency lane. I found this evidence unsatisfactory.
For these reasons, I do not place any weight on Ms Kaur’s evidence that the car was not moved, or as to the location of Mr Ward’s car at the time of the impact.
B.2.7. Mr Lamba’s evidence
Mr Lamba said that Mr Singh stopped the car approximately 1.5 metres from the northbound left lane, and with his left tyres on grass, as shown in the police photograph. Mr Lamba thought, but was not ‘100% sure’, that the hazard lights were on. As noted above, if the car were moved, it was probably him who moved it. When asked, he only said that as far as he could remember, he did not ‘think’ that he had moved the car. That is, he could not categorically say that he had not moved it.
B.2.8. Mr and Ms Ades’s evidence
Mr and Ms Ades were travelling behind Mr Ward’s car and saw the accident unfold before them. Mr Ades, who is a fifty-year-old owner of a plumbing business, drives up and down that road four to six times a day and is very familiar with it. He was driving, and Ms Ades was in the front passenger seat. They both saw Mr Singh’s car on the side of the road, saw him get out, and saw him get hit. They both said that Mr Singh remained in the emergency lane, that Mr Ward moved to the left and that this movement caused the collision, and that Mr Ward did not apply his brakes or slow down before or after hitting Mr Singh. They both formed the view that he had engaged in a ‘hit and run’. They followed Mr Ward, flashing their lights and honking their horn. They pulled up next to Mr Ward, and told him that they had seen him hit Mr Singh. It was then that Mr Ward, who was holding his phone, told them that he was already on the telephone to the police.
Both Mr and Ms Ades were impressive witnesses. Neither had any financial stake in the outcome. Neither has ever met Mr Singh or his family. Both were, I am satisfied, giving their evidence honestly and doing their best accurately to describe their recollections of what they saw. Again, however, neither made a contemporaneous statement, and they were recalling events of many years ago. There were variations in the evidence that they gave, and some internal inconsistencies. Mr Ward suggested that their recollection was influenced by the view they wrongly formed that he was endeavouring to flee the scene after hitting Mr Singh; that they were unconsciously biased against him and recalling things in a way favourable to Mr Singh.[6]
Mr Ades
[6]See Onassis and Calogeropoulos v Vergotis [1968] 2 Lloyd’s LR 403, 431 (Lord Pearce); Nominal Defendant v Cordin (2017) 79 MRV 210, 240–46 [165]–[166] (Davies J).
Mr Ades was, however, unshaken in his evidence that Mr Singh was in the emergency lane, and that Mr Ward crossed into the emergency lane and caused the impact. He said:
So, basically, um, the car in front of me, ah, it basically veered off the road and drifted, and to the, to the point where we actually thought it was on purpose. Mr Singh had got out of the, the driver’s seat, closed the door, um, was walking around to the front of the vehicle, when the car in front of me basically drifted off the road and hit Mr Singh in the backside, um, yeah, hip area.
…
He was … to the left of the white line.
…
So, after he, sort of, drifted over and hit him, and we’d – to the point where we always, we thought he’d hit him on purpose, because, or, he’d just drifted over the, over the white line and, and, and hit this man.
…
So, he’d crossed the white line, and hit Mr Singh, um, yeah, over the white line.
…
I feel it was almost like he’d fallen asleep and drifted off the road to – to hit him. That’s what it – it felt like.
Consistently with this evidence, Mr Ades also said that that Mr Singh’s car was parked at such a distance from the northbound left lane that he doubted that the door, even if fully opened, would have intruded into the northbound left lane, and that he was ‘positive’ that Mr Singh’s door did not in fact intrude into the northbound left lane.
There was, however, a difficulty with Mr Ades’s evidence. He said that the accident took place where there was grass and then a large black fence to the left of the emergency lane, and where there were no ‘structures’ in the vicinity. He then said that the location shown in the police photograph was where the accident occurred. But he also said that it was parked ‘just over the bridge … past the barriers.’ He clarified that he thought that the accident took place no more than 10 metres after the green bridge. Mr Ward then produced ‘Google’ images dated from December 2014 that confirmed that the long cable safety barrier was in existence at the time of the accident. Accordingly, Mr Ades’s evidence that the location of the accident was only 10 metres after the green bridge was inconsistent with his evidence that the accident took place where there was grass and an open area to the left of the emergency lane, and was consistent with Mr Ward’s evidence that the accident happened alongside the cable safety barrier.
After viewing the Google images, Mr Ades drove back to the area where the accident took place and reflected on his evidence. I am satisfied that he did so for the purpose of clarifying things in his mind, and that he was not motivated by any desire to assist Mr Singh or to harm Mr Ward. He took some photos of where he thought the accident had, on further reflection, taken place. The photographs showed an area not far north of the point where the cable safety barrier finished, and where there was then grass to the left of the emergency lane. In substance, he prioritised his recollection that Mr Singh’s car had been in a location beyond the cable safety barrier and where there was grass to the left of the emergency lane over his recollection that this had been at a spot only 10 metres after the green bridge.
When the accident took place, Mr Ades was travelling at 100 kilometres per hour up the highway and watching the cars in front. He would, naturally, be more focused on the layout at the location of the accident than precisely where he was in relation to the bridge. It makes sense to me that his memory that the accident took place in a spot where there was not a safety barrier and there was sufficient room and grass to the left of the emergency lane would be more reliable than his memory that this location was only 10 metres after the bridge, or otherwise where precisely that location was. I accept his evidence as to the layout of the location where the accident took place, but I do not accept that the accident took place at the precise location shown on the road in his more recent photos.
There were some other inconsistencies in his evidence. On several occasions he said that Mr Singh had parked his car with between 500 millimetres and one metre between his car and the left edge of the northbound left lane, which he also said was ‘nowhere near the actual lane itself’. But on another occasion, he estimated this distance as being at least a metre. I am not troubled by these sorts of variation. It is, in my view, unrealistic to expect witnesses of events such as these to have memories that are so precise as to be able to state with any certainty whether a distance was above or below a metre. Rather, they will have a broad impression of there being a distance that in the circumstances of the case was of a significant dimension. For the same reason, I am not concerned, for example, that Mr Ward estimated his distance from Mr Singh’s car when he first saw it variously at 300 metres and 400 metres.
Finally, counsel for Mr Ward extracted from Mr Ades at the end of his cross-examination a concession that he ‘could be’ mistaken about certain aspects of his evidence. I understood, from the way these answers were given, that Mr Ades was accepting that as a possibility, in the sense that anything is possible; I did not understand Mr Ades to be conveying by those answers that he did not consider that his evidence was reliable.
Ms Ades
Ms Ades spoke to Mr Angelopoulos, a solicitor with the TAC, on 20 October 2021. Mr Angelopoulos gave evidence. His file note records that Ms Ades told him that the accident took place ‘adjacent to safety barriers’ where there was ‘not much space for a car to stop’ and where there was no grass. Mr Angelopoulos’s file note also suggests that Ms Ades did not tell him that Mr Ward crossed into the emergency lane, but only that Mr Ward was ‘pretty close to the left of his lane’.
Ms Ades also ‘electronically signed’ a ‘conversation log’ prepared by an investigator retained by Mr Singh’s solicitors following a conversation with the investigator on 5 December 2021, which is less than two months after her discussion with Mr Angelopoulos. In that document, Ms Ades is recorded as saying that Mr Ward ‘veered’ or ‘swerved’ towards Mr Singh, that she ‘cannot recall if the car was on the grass or not’ and that she could not recall the car being on any grass, and that there was a barricade ‘near’ where the car was stopped. On the important point as to whether or not Mr Ward left the northbound left lane and moved into the emergency lane, the conversation log is not completely clear. Ms Ades is recorded as saying, in answer to a question as to whether Mr Ward’s car moved out of his lane, that it was ‘hard to say’ and that ‘it looked like to me that he was in his lane’, but that, instead of moving away from Mr Singh, Mr Ward ‘sort of moved toward him’, or ‘did swerve a little bit’ towards him rather than go the other way. Ultimately, she is recorded as saying that she didn’t think that Mr Ward did get into the emergency lane, but only ‘got close to it’. She is recorded as saying that although Mr Singh’s car was in the emergency lane, it was ‘tight’, ‘narrow’, and ‘close’, and that she did not think that it was a safe place for him to get out of the car.
In her oral evidence, Ms Ades said that Mr Singh was ‘in the emergency lane and … not on the freeway at all’, that there was ‘enough distance for him … to walk around the car’, that Mr Ward ‘swerved’ or ‘veered’ before he hit Mr Singh, and that if Mr Ward had continued in a straight line he ‘definitely wouldn’t have hit’ Mr Singh. She said that she could not recall where Mr Singh’s tyres were, or whether or not there were any structures near his car. She then accepted that the police photograph accorded with her memory of the position of Mr Singh’s car.
In cross-examination, Ms Ades was taken to some of the tensions between what she is recorded as having said to Mr Angelopoulos and in her conversation log. She confirmed her belief that it was ‘ridiculous’ for Mr Singh to be getting out of the car where he did. On several occasions, she said that she could not remember giving the answers that were put to her. She was not asked whether she had carefully read over the conversation log before she ‘clicked on a button and was able to sign it somehow’. I formed the impression that her recollection of some of the details was quite vague. But she did say, emphatically:
[Mr Ward] veered over and hit Mr Singh who was in the emergency lane. So, I guess his car did veer into the emergency lane.
Later, she said:
[A]ll I know is the car was in the emergency lane, the man got hit. To all those other details I really can’t remember.
…
I wasn’t looking at where the car was parked at the time.
…
Not at one point did he step onto the freeway.
Then, she agreed that she could not in fact say whether or not Mr Singh’s car was in the position shown in the police photograph.
Ultimately, I consider that Ms Ades has a strong, and accurate, memory of Mr Ward moving surprisingly to his left and hitting Mr Singh as a result. I consider that she was an honest witness. But, I formed the view that she otherwise now has no clear memory, and no reliably accurate memory, as to whether the collision took place in the emergency lane or at the left edge of the northbound left lane.
B.2.9. The damage to Mr Ward’s car
As noted above, Mr Ward’s car was damaged to the front of its left wheel arch and its left external side-view mirror was damaged, and Mr Singh’s car was undamaged. Mr Ward argued that this, and in particular the lack of damage to the front of his car, was inconsistent with Mr and Ms Ades’s evidence and indicated instead, as I understood it, that Mr Singh had probably initiated the accident by moving into the side of Mr Ward’s car.
I do not accept this. Both Mr and Ms Ades had Mr Ward drifting left into the emergency lane with that movement being the immediate cause of the accident. Neither said that Mr Ward drifted into the emergency lane before he reached Mr Singh’s car and drove forwards into Mr Singh. On the contrary, Mr Ades said that he did not see ‘any indication of bad driving’ before Mr Ward hit Mr Singh and that Mr Ward had been in the left lane until ‘the one time he drifted over and hit Mr Singh’. In my view, the damage to Mr Ward’s car is entirely consistent with him drifting to the left across the emergency lane as he approached Mr Singh and making contact with Mr Singh with his left front wheel arch. This is consistent with Mr and Mrs Ades’s evidence.
Similarly, the lack of damage to Mr Singh’s car merely indicates that Mr Singh was further to the right than his car’s side or door was when he was hit, which was consistent with his evidence that he was on the right side of his car moving forwards. The lack of damage to his car is of no real consequence.
B.2.10. Jones v Dunkel
I have not drawn any Jones v Dunkel[7] inferences against either party from the failure to call the other police officers that were present. It seems likely that the other officers, as was the case with Detective Hardisty, would have no independent recollection of the events beyond those that are recorded in the police report. But, in any event, they were equally in each side’s ‘camp’.
[7](1959) 101 CLR 298.
Ms Singh obtained a report from a traffic collision engineer Mr Shane Richardson. That report was served on Mr Ward. Mr Richardson was not called. I infer that Mr Richardson’s evidence, if called, would not have assisted Mr Singh. But I do not infer that his evidence would have assisted Mr Ward’s case or that it would have harmed Mr Singh’s case. In circumstances where there was no damage to Mr Singh’s car, there was no dispute that Mr Ward’s car had hit Mr Singh at about 100 kilometres per hour without Mr Ward first having braked leaving skid marks to be analysed, where Mr Ward’s car had not remained at the accident site, and where there was no debris identified at the site, the inference adds little to the exercise of determining what probably happened.
There was some vague evidence that Mr Lamba had taken some photographs, and those photographs were not produced or tendered. But the evidence, such as it was, suggested merely that Mr Lamba had taken some photographs of Mr Ward’s car after he returned after the accident. The damage to Mr Ward’s car was not in dispute. There was no suggestion that there were photographs that showed Mr Singh’s car in a position different to that shown in the police report. I do not draw an inference against Mr Singh from a failure to produce any photos.
B.3. Conclusions as to what happened
I conclude, on the balance of probabilities, that the following happened:
(a) Mr Singh stopped in the emergency lane because he was ‘very distracted’ from his driving by the continuous crying of his baby, who would not settle, in the back seat;
(b) the accident happened at a point beyond the cable safety barrier where there was grass to the left of Mr Singh’s car;
(c) Mr Singh stopped his car at a point where he had sufficient room to exit his car while staying entirely within the emergency lane;
(d) Mr Singh, when exiting his vehicle, did remain within the emergency lane; and
(e) the accident happened because Mr Ward momentarily lost concentration and drifted from the northbound left lane into the emergency lane as he passed Mr Singh.
I have preferred the evidence of Mr Ades as to the positioning and movement of the cars and Mr Singh on the road to the evidence of Mr Ward. Mr Ades impressed me as an honest and careful witness. He had nothing personally to gain in the case. He was in a good position to make the observations he did. I consider that his memory of the immediate cause of the accident and the lead-up to it are reliable. It is, I consider, understandable that he might have a reliable recollection of the accident and its lead-up, yet be mistaken as to how far after the bridge it took place. As a matter of commonsense, the feeling or sense of an accident alongside the safety barrier would be different to the feeling or sense of an accident alongside open ground. I was not concerned by his estimates of the distance between Mr Singh’s car and the northbound left lane varying from between 50 centimetres to one metre to at least one metre. The accident happened suddenly and he was not in a position to make precise measurements. This sort of variation in estimation was, I consider, understandable, just as was the variation in Mr Ward’s estimates as to how far he was when he first saw Mr Singh’s car.
On the other hand, Mr Ward’s evidence had the inconsistencies identified in para 21 above. I am particularly influenced by the fact that he said he did not recall hitting Mr Singh and that he did not at first realise that he had hit him, despite also saying that he saw him get out and move into the northbound left lane shortly before the incident and that the point of impact was forward of the windscreen. This is consistent with him momentarily losing concentration. I do not consider that Mr Ward was deliberately lying. Rather, I consider that his memory of the events was unreliable.
I have preferred the evidence of Mr Ades to the evidence of Ms Ades where they are in conflict. Mr Ades struck me as a more thoughtful and considered witness, and someone whose memories were more reliable. I do not consider that his memory was distorted by a desire to assist Mr Singh out of a belief that Mr Ward had tried to avoid responsibility for the collision.
I should note that it would be wrong to treat Ms Ades’s answers to questions as recorded and written down by an investigator as being more reliable than her oral testimony given in court. There is a temptation to do so, because of the bias towards accepting written, rather than oral, statements. But in this case, the discussion with the investigator took place on 5 November 2021, and so wasn’t at a time when her memory might be expected to be better than it was at trial. It was a discussion that took place by telephone, rather than in the formal environment of a court case where people might be expected to be more considered. The answers were written down by the investigator and sent to Ms Ades. Although Ms Ades no doubt read them over and electronically signed the document, her answers were not on oath, and I am not sure how carefully she would have read them over, or felt free to change them. I do not consider there is any reason to think that the answers said to have been given in that conversation are likely to be more accurate than the answers given on oath in the courtroom. Indeed, I consider instead that her evidence given in court is likely to be more reliable than the answers as recorded in that document. But, as noted above, where they are in conflict, I have preferred the evidence of Mr Ades.
I consider that Mr Ward’s statement given to the TAC investigator on 8 July 2019 is in a slightly different category. I assume that the statement was being taken at least in part in order to ascertain whether Mr Ward had caused the accident and so it was an occasion upon which he might have been expected to give fully considered and complete answers. Further, the statement was typed up in his presence at the time of the interview, rather than from notes taken in a telephone discussion.
Much was made, by both parties, of inconsistencies in evidence as to the precise location of Mr Lamba at the time of the accident, the time for which Mr Singh was stationary before he started to get out of his car, the distance at which parties had first seen Mr Singh’s car, or how far Mr Ward had travelled before he stopped. These matters were peripheral to the central issue of where Mr Singh was located on the road and whether Mr Ward remained inside his lane, and I do not consider any of these inconsistencies to have been significant.
I reject Mr Ward’s case that the car was moved from some 300 metres south of the impact where it was alongside the safety cable barrier, and I reject the version contained in the diagram in the police report to the effect that Mr Singh’s car was parked immediately adjacent to the northbound left lane, and I reject Mr Ward’s evidence that Mr Singh moved into the northbound left lane thereby causing the accident. Rather, I accept Mr Ades’s evidence that there was sufficient room for Mr Singh to exit his car and to remain entirely in the emergency lane, and that Mr Ward drifted into the emergency lane and struck Mr Singh within the emergency lane.
However, I do not accept that Mr Singh’s car was as shown in the police photograph at the time of the collision. That shows a car only half in the emergency lane, and well over a metre from the northbound left lane. Despite Mr Ades accepting that position, it is inconsistent with his primary memory that the car was only a metre (more or less) from the northbound left lane, and is inconsistent with Ms Ades’s memory. There is nothing in the ‘000’ transcripts that suggests that Mr Ward moved half a lane or so left into the emergency lane. It seems to me probable that Mr Singh’s car was moved after the accident, not from some 300 metres south of the point of impact, but simply a short distance forward to make it even further to the left than it had been when it was first stopped. This would be consistent with the diagram that Mr Singh included in his answer to interrogatories. It would also be consistent with Mr Ward’s assertion, recorded in the police statement, that the car had been moved. As noted above, the police statement does not indicate how or from where Mr Ward then said that the car has been moved. If the car were in the emergency lane when Mr Ward drove past it, but had been moved further to the left after the accident so that it was only half in the emergency lane, that would explain him asserting at the time that it had been moved, in a context where he was providing information to the police in relation to how close Mr Singh’s car was to the northbound left lane, and the absence of any indication in the police report that it had been moved some 300 metres. It could explain why the exit sign is not visible in the police photo.[8]
[8]Another possibility is that the exit sign has been moved since the time of the accident. In this respect, it is significant that substantial roadside service stations or rest stops that are now present near the site of the accident were in the process of being built at the time of the accident, but, it seems, the necessary exits and entrances from the highway to those areas had not yet been built.
Also, Mr Singh had just been hit by a passing motorist. The car was full, with an elderly lady and a baby in it. The other members of Mr Singh’s party would have wanted to get out of the car, and take the baby out of the car, and walk around while waiting for the ambulance. The police photograph shows that Mr Singh’s mother-in-law had got out of the car. It would make perfect sense to move the car further off the road after the accident to reduce the prospect of any further accident. And finally, as noted above, Mr Lamba, who was the person most likely to have driven the car if it was moved, did not affirmatively assert that he did not move the car. Under cross-examination he said:
As far as I can recall, I didn’t move the car … But I was in such a panic then, I do not know if the car moved or not.
…
I cannot recall everything because it’s so old. But as far as I can remember, I don’t think I moved the car.
C. Conclusions on liability
C.1. Is Mr Ward liable?
I accept that Mr Ward, by moving from the northbound left lane into the emergency lane and hitting Mr Singh within that emergency lane, failed to take reasonable care and that that failure was a cause of Mr Singh’s injuries. It was also a breach of r 146 of the Road Safety Rules 2009 (‘the Rules’), which requires a driver to drive so that the driver’s vehicle is ‘completely in a marked lane’ unless certain irrelevant conditions are met.
Also, even if Mr Singh’s car had been parked in the location where Mr Ward said it had been parked as shown in his photograph, there would have been room for Mr Singh to stand alongside his car entirely in the emergency lane. Accordingly, even if I had accepted Mr Ward’s evidence that the car had been parked as shown in his photographs, given the evidence of Mr Ades and Mr Ward’s unawareness that he had hit Mr Singh, and the fact that Mr Ward did not give any evidence of any measurements taken by him at the time of his photographs, I would still have concluded that Mr Singh had remained in his lane and that Mr Ward had lost concentration and driven out of the northbound left lane and into the emergency lane.
C.2. Was Mr Singh contributorily negligent?
Mr Ward contended that Mr Singh should not have stopped his car on the highway at all, but should instead have driven to an exit and stopped after leaving the highway. Mr Ward relied, in part, on r 178 of the Rules. That rule provides that a driver ‘must not stop in an emergency stopping lane unless the condition of the driver, a passenger or the driver’s vehicle, or any other factor, makes it necessary or desirable for the driver to stop in the emergency stopping lane in the interests of safety’. I do not consider that Mr Singh acted unreasonably, or in breach of this rule, when he decided to stop in the emergency stopping lane. I accept his evidence that his baby was ‘continuously crying and shouting’, had been doing so for a significant period of time, and that his baby’s crying was very distracting. In those circumstances, it was, within the terms of the rule, ‘desirable … in the interests of safety’ to pull over. Indeed, were Mr Singh to have had an accident because he was distracted by the crying of his baby, I could well imagine him being criticised for not using the emergency lane to pull over before the accident had occurred and when he first felt himself being distracted.
Mr Ward contended that Mr Singh had also breached r 269(3) of the Rules by ‘causing a hazard’ by opening a door or getting out of a vehicle. But because, I have found, Mr Singh remained entirely within the emergency lane, I do not consider that he ‘caused a hazard’ by opening his door or getting out of his car.
Mr Singh ought to have, but did not, switch on his hazard lights. But the accident occurred in daylight and Mr Singh’s car was clearly visible, and indeed had been seen by Mr Ward and Mr Ward had appreciated that it had been brought to a stop. In those circumstances, I am not satisfied that the collision would have been avoided if Mr Singh had switched on his hazard lights. Accordingly, the failure to switch on the hazard lights was of no consequence and so cannot amount to contributory negligence.
However, I am satisfied that Mr Singh stopped his car in the emergency lane with no more than about a metre between the left of the northbound left lane and the right side of his car, in circumstances where there was no barrier to his left and he could have stopped his car further to the left so that it was partly, or perhaps almost entirely, on the adjacent flat grass verge. There would be nothing dangerous in doing so, and no reason not to do so. It would have meant that there was a larger distance between him and the northbound left lane when he got out of the car. It may be that he initially stopped where he did in the hope that he could settle his child from the front seat and only decided to change drivers after this had failed. But just as an employer in designing a system of work must take account of the known fact that workers can act inadvertently or carelessly,[9] in my view a person stopping and getting out of their car alongside a major highway (and on the highway side) should take into account the fact that persons driving on the highway can lose attention and drift out of their lane (as I have found happened on this occasion). When the risk of this occurring is weighed with the potential harm if hit by a high-speed vehicle, and where there is a safer place to stop that has no additional inconvenience associated with it, in my view the reasonable driver in Mr Singh’s position, taking care for his own safety, would have stopped at least as far to the left as is shown in the police photo.[10] I am satisfied that if Mr Singh had stopped in that position the incident would have been avoided. Accordingly, I consider that Mr Singh failed to take reasonable care for his own safety and that that lack of care was a cause of the incident.
[9]See, eg, Czatyrko v Edith Cowan University (2005) 214 ALR 349, 353 [12] (Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ).
[10]See Wyong Shire Council v Shirt (1980) 146 CLR 40, 47–8 (Mason J).
Nonetheless, the overwhelming responsibility for the accident must lie with Mr Ward. I do not accept Mr Ward’s submission that there should be an 80% reduction for contributory negligence. Mr Ward, I have found, drove his vehicle at 100 kilometres per hour out of his lane and into the emergency lane where he hit another person, and Mr Singh’s only fault was not to anticipate this negligent act happening. Mr Ward’s deviation from the standard of care required, and the causal potency of his breach, far outweighed Mr Singh’s.[11]
[11]Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529, 532–3 (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ).
I consider it just and equitable, having regard to Mr Singh’s share in the responsibility for the damage,[12] to reduce Mr Singh’s damages by 10%.
D. Disposition
[12]Wrongs Act 1958 (Vic) s 26(1)(b).
There will be judgment for Mr Singh for the agreed amount of damages, with a reduction for contributory negligence of 10%.
I will hear the parties on the form of order and the question of costs.
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