Spurek v Lee & Anor (Civil Dispute)
[2021] ACAT 89
•23 September 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SPUREK v LEE & ANOR (Civil Dispute) [2021] ACAT 89
XD 1316/2020
Catchwords: CIVIL DISPUTE – motor vehicle accident – application for cost of repairs, car hire and ACAT filing fee – questions of fact – liability for accident under the road rules – obligations of drivers under the rules to not unreasonably obstruct traffic and to maintain a safe distance between vehicles – apportionment of liability between the applicant, first respondent and second respondent
Subordinate
Legislation cited: Road Transport (Road Rules) Regulation 2017
Tribunal: Senior Member D Mulligan
Date of Orders: 23 September 2021
Date of Reasons for Decision: 23 September 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1316/2020
BETWEEN:
EMMA SPUREK
Applicant
AND:
KENT KAN-YIN LEE
First Respondent
AND:
MARY CLARK
Second Respondent
TRIBUNAL: Senior Member D Mulligan
DATE: 23 September 2021
ORDER
The Tribunal orders that:
1. The first respondent is ordered to pay the applicant the sum of $378.24 within a calendar month of the publishing of this decision.
2. The second respondent is ordered to pay the applicant the sum of $126.08 within a calendar month of the publishing of this decision.
………………………………..
Senior Member D Mulligan
REASONS FOR DECISION
1. The applicant, Ms Emma Spurek owns a blue Kia car, which at about 11:30am on 4 June 2019, she was driving in a northerly direction on Flemington Road in Mitchell. She was heading towards her home in Ngunnawal. Her son was a passenger in the car.
2. The evidence as to the speed limit at this point of Flemington Road was unclear, but is most likely 60 or 70km/h
3. As she approached the Sandford Street intersection (the intersection) the road in her direction of travel is separated into three lanes.
4. The right-hand lane is dedicated to traffic turning right onto Sanford Street.
5. The middle lane is dedicated to traffic which is carrying on in a northerly direction on Flemington Road.
6. The left-hand lane is dedicated to traffic which is either turning left onto Morisset Road or is carrying on in a northerly direction on Flemington Road.
7. The tracks for the Gungahlin to Civic light rail service run between, and parallel to, the northbound and southbound lanes of Flemington Road.
8. The intersection is controlled by traffic lights.
9. As the applicant approached the intersection she was travelling in the left-hand lane and the traffic light for her direction of travel was green.
10. As Ms Spurek approached the intersection, she saw a tram facing her. It was stationary and located on the other side of the intersection. Ms Spurek became confused by the presence of the tram and decided to stop her vehicle, notwithstanding the fact that she had a green light that authorised her to travel through the intersection.
11. Very shortly afterwards the rear of her vehicle was struck by the white BMW being driven by the first respondent Mr Kent Lee.
12. A very short time after that impact Mr Lee’s car was struck by the silver Subaru being driven by the second respondent Ms Clark. The impact from Ms Clark’s vehicle caused Mr Lee’s vehicle to hit Ms Spurek’s car a second time.
13. Mr Lee’s version of events was, to an extent, similar to that of the applicant. He said he was immediately behind the applicant’s car and was travelling at about 40 – 50km/h when he saw the applicant stop her vehicle when the light was green.
14. His evidence was to the effect that he managed to stop his vehicle safely behind that of the applicant without hitting her car. He says the second respondent’s vehicle struck his car which resulted in his vehicle being propelled into the rear of Ms Spurek’s car.
15. Ms Clark’s evidence was similar. She was about two car lengths behind Mr Lee when things “happened very quickly”. The cars in front of her stopped very suddenly. She heard Mr Lee’s car hit that of Ms Spurek and then her car collided with the rear of Mr Lee’s car, which was propelled into Ms Spurek’s car for a second time.
16. Both Ms Spurek and Ms Clark disagree with Mr Lee’s contention that he managed to stop his vehicle without it hitting Ms Spurek’s car. Both women agree that his car hit that of Ms Spurek before his car was struck by that of Ms Clark. Both women also agree that his car was propelled into Ms Spurek’s car for a second time after his vehicle was struck by that of Ms Clark.
17. In that regard I accept the evidence of the Ms Spurek and Ms Clark and reject the evidence of Mr Lee.
18. I am satisfied on the balance of the probabilities that despite having a green light, Ms Spurek stopped suddenly at the intersection because she was confused by the presence of the stationary tram, which was facing her. Mr Lee was unable to respond quickly enough to avoid colliding with Ms Spurek’s unexpected manoeuvre and the front of his vehicle collided with the rear of Ms Spurek’s car. A very short time later Ms Clark’s car struck Mr Lee’s car and his car was propelled into the rear of Ms Spurek’s car for a second time. Ms Clark was unable to stop quickly enough to avoid the collision with Mr Lee’s car.
19. As a consequence of the collisions, damage was caused to the rear of Ms Spurek’s car.
20. Ms Spurek seeks compensation for her losses. She seeks:
$1,272.30 – for the cost of repairs to her car
$668.00 – car hire whilst her car was being repaired
$77.00 – ACAT filing fee
$2,017.30 – total
Who is responsible for the accident?
21. The applicant submits that the first and second respondents caused the accident by failing to keep an adequate and safe stopping distance behind her vehicle and that they also failed to exercise due care and control of their vehicles.
22. The applicant submits that had they done so the accident could have been avoided and there would have been no loss.
23. The first respondent says that his vehicle only hit Ms Spurek’s car on one occasion; when his car was propelled into Ms Spurek’s car after being struck by Ms Clark’s car. He says that he is blameless in the accident. As detailed above I have rejected his explanation.
24. The second respondent says that Mr Lee is responsible for the damage to Ms Spurek’s car and that any liability Ms Clark has for the accident “should be limited to any amount reflecting the proportion of the loss and damage claimed by the applicant for which the second respondent is found to have been responsible”.
25. The second respondent did not particularise what damage to the applicant’s car she was responsible for.
26. It is impossible for me to determine precisely what damage was done to the applicant’s car following each of the two impacts.
27. I do accept that the second respondent would likely have been responsible for a smaller amount of damage done to the applicant’s car and I will make an adjustment in the amount of compensation I allow against the second respondent to reflect that fact.
The law
28. The relevant law can be found in regulations 125 and 126 of the Road Transport (Road Rules) Regulation 2017 (the Regulations). The Regulations provide:
125 Unreasonably obstructing driver or pedestrian
(1) A driver must not unreasonably obstruct the path of another driver or a pedestrian.
Maximum penalty: 20 penalty units.
(2) For this section, a driver does not unreasonably obstruct the path of another driver or a pedestrian only because—
(a) the driver is stopped in traffic; or
(b) the driver is driving more slowly than other vehicles (unless the driver is driving abnormally slowly in the circumstances).
Example—driver driving abnormally slowly
A driver driving at a speed of 20km/h on a length of road to which a speed limit of 80km/h applies when there is no reason for the driver to drive at that speed on the length of road.
126 Keeping safe distance behind vehicle
A driver must drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle.
Regulation 125
29. In my view Ms Spurek’s unreasonably obstructed the drivers of vehicles behind her when she stopped at the intersection in circumstances where she had a green light and, objectively speaking, no reason to come to a stop rather than travel through the intersection.
30. Mr Lee and Ms Clark would also have had a legitimate expectation that Ms Spurek would obey the green light and continue through the intersection without stopping.
31. In my view Ms Spurek breached regulation 125 when she stopped at the intersection in those circumstances.
32. Had Ms Spurek obeyed the green light and continued driving through the intersection there would have been no impact with the stationary tram that was facing her and there would have been no obstruction of the vehicles behind her.
33. Put bluntly, had Ms Spurek obeyed the green traffic light and continued through the intersection there would have been no crash.
Regulation 126
34. Pursuant to regulation 126 of the Regulations Mr Lee and Ms Clark had an obligation to “drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle”.
35. Mr Lee failed in that obligation and as a result his car struck the applicant’s car.
36. Ms Clark also failed in that obligation and as a consequence her car hit Mr Lee’s car which in turn was propelled into the rear of Ms Spurek’s car for a second time.
Decision
37. Mr Lee’s failure to “drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle” caused damage to Ms Spurek’s car. I put his liability for the damage done to Ms Spurek’s car at 75 per cent of the quantum for which the first and second respondent are liable.
38. Ms Clarks’s failure to “drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle” also caused Mr Lee’s car to be propelled into the rear of Ms Spurek’s car for a second time and caused damage to Ms Spurek’s car. I put her liability for the damage done to Ms Spurek’s car at 25 per cent of the quantum for which the first and second respondent are liable.
39. Ms Spurek’s decision to stop suddenly at the intersection, on a green light and with, objectively speaking, no reason to stop at that time, was the real cause that an accident occurred at all. The decision was not based on any objective circumstance that warranted that action and she unreasonably obstructed the drivers behind her when she took that action. I put her liability for the accident at 75 per cent and reduce the compensation payable to her by that amount.
40. The result is that I award the respondent 25 per cent of her claim totalling $2,017.30. She is accordingly awarded $504.32.
41. Mr Lee is responsible for 75 per cent of that award. Mr Lee is ordered to pay the applicant the sum of $378.24 within a calendar month of the publishing of this decision.
42. Ms Clark is responsible for 25 per cent of the sum awarded to Ms Spurek. Ms Clark is ordered to pay the applicant the sum of $126.08 within a calendar month of the publishing of this decision.
43. The applicant sought interest on the sum. There has been a long and unexplained delay in bringing the proceedings. In those circumstances I am not prepared to order that the first and second respondent should pay the interest claimed.
………………………………..
Senior Member D Mulligan
Date(s) of hearing
18 June 2021
Solicitor for the Applicant:
Mr T Waugh, Hall and Wilcox
First Respondent:
In person
Counsel for the Second Respondent:
Mr N Oram
Solicitor for the Second Respondent:
Ms B Lin, Mills Oakley
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