Stephenson v Qcity Transit Pty Ltd ACN 001 260 242 (Civil Dispute)
[2020] ACAT 48
•1 July 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
STEPHENSON v QCITY TRANSIT PTY LTD ACN 001 260 242 (Civil Dispute) [2020] ACAT 48
XD 1191/2019
Catchwords: CIVIL DISPUTE – motor vehicle accident – car turning left in front of bus – whether car indicated in sufficient time – whether car entered bus lane with appropriate distance before turn – contributory negligence
Subordinate
Legislation cited: Road Transport (Safety and Traffic Management) Regulations 2000
The Australian Road Rules – Rules 46, 126, 154, 158
Road Transport (Road Rules) (Consequential Amendments) Regulations 2017 (No 1)
Tribunal: Senior Member D Mulligan
Date of Orders: 1 July 2020
Date of Reasons for Decision: 1 July 2020
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL XD 1191/2019
BETWEEN:
LUKE STEPHENSON
Applicant
AND:
QCITY TRANSIT PTY LTD ACN 001 260 242
Respondent
TRIBUNAL: Senior Member D Mulligan
DATE:1 July 2020
ORDER
The Tribunal orders that:
1.The applicant’s case is proved and he is entitled to damages in the sum of $9,480.
2.The applicant’s contributory negligence is assessed at 20 percent and the damages he is entitled is consequently to be reduced by $1,896.
3.In total the respondent is to pay the applicant the sum of $7,821.39. This comprises damages in the sum of $7,584 together with the ACAT filing fee of $156 and the payment of a repair quote of $81.39.
4.The respondent’ s counterclaim is dismissed.
………………………………..
Senior Member D Mulligan
REASONS FOR DECISION
1.At about 8:10am on 13 September 2016, the applicant in this matter, Mr Luke Stephenson was driving his white Nissan Tiida (the car) in a north-westerly direction on Canberra Avenue, Fyshwick.
2.Canberra Avenue is a major arterial road. In Mr Stephenson’s direction of travel, it is comprised of a bicycle lane, a bus lane and two lanes for regular traffic. I will refer to the three motor vehicle lanes as the bus lane, the centre lane and the outside lane.
3.The speed limit on this portion of Canberra Avenue is 80km/h.
4.Mr Stephenson was driving home to the Canberra South Motor Park (the motor park) which is located at 226 Canberra Avenue.
5.At the same time Ms Lynn Forsyth was driving high school students to school in a Volvo B10M school bus (the bus). The bus was operated by the respondent.
6.Ms Forsyth was driving in same direction as Mr Stephenson, who was a short distance in front of her.
7.The bus was in the bus lane and the car was in the middle lane.
8.According to Mr Stephenson as he approached the motor park, he put on his left turn indicator[1]:
indicating my intention to enter the bus lane and turn left into the Canberra South Motor Park driveway (the driveway).
Once the line of the bus lane had turned from a solid line into a broken line, I performed a head check, slowed the Tiida, and turned left into the bus lane, intending to enter the driveway. The Tiida’s left blinker had been activated for no less than five seconds when I performed this turn.
The front of the Tiida had entered the driveway when, without warning, the rear left side was hit from behind by the bus.
[1] Exhibit A2 paragraphs 6-8
9.According to Mr Stephenson, he turned his left-turn indicator at least five seconds before the accident occurred at 8:11:58am.
10.Mr Stephenson was able to be precise with his timings as the bus had a CCTV capturing images in its forward direction of travel and a CCTV directed towards the driver of the bus.[2] The images were time stamped.
[2] Exhibit A5
11.According to Ms Forsyth’s statement[3] she was driving in the bus lane at about 65 km/h when she saw the car veer “slightly to the right in its lane, prior to suddenly turning on its left indicator and steering left sharply over the broken line and into the bus lane to turn left at Canberra South Motor Park.”[4]
[3] Exhibit R2 paragraph 7
[4] Exhibit R2 paragraph 11
12.During the course of Ms Forsyth’s evidence, she clarified the speed at which she had been driving just prior to the accident. In evidence she said that she had been driving the bus at somewhere between 70 and 80 km/h when she first saw Mr Stephenson’ s car veer slightly to the right before executing the left-hand turn into the motor park.
13.Ms Forsyth’s evidence was to the effect that upon noticing the applicant’s sudden change of direction, she immediately applied the brakes in an attempt to bring the bus to a halt before it collided with the car.
14.From Ms Forsyth’s perspective the collision was unavoidable.
15.Ms Forsyth believes that the applicant had plenty of time and distance to indicate his intention to turn left and gradually steer his car into the bus lane, some distance prior to him turning left into the motor park.
Findings after viewing the CCTV
16.Neither party introduced evidence of the distances between the bus and car at material times. It has been left to me to try and estimate those distances from what I have seen on the CCTV images.
17.I have looked at the CCTV footage, leading up to the accident, on numerous occasions. I record the following facts from my observations:
(a)At the start of the video (8:11:51am) the bus is located in the bus lane and the car in the middle lane. I estimate the car to be about 100 metres ahead of the bus.
(b)From about the start of the video at 8:11:51am until the accident occurred at 8:11:58am, the car appeared to be slowing in preparation for the left-hand turn into the motor park.
(c)At about 8:11:53am the car did veer slightly to the right before it turned left.
(d)At about 8:11:55am the car crossed the dotted line between the middle lane and the bus lane. At this point I estimate the bus to have been about 40 metres behind the car.
(e)At about 8:11:57am the car was wholly in the bus lane.
(f)At 8:11:58am the bus collided with the car. This occurred as the car crossed the driveway into the motor park and was about two thirds across the bicycle lane. The car was hit on its left rear side, just behind the left rear wheel. It was struck by the front left corner of the bus.
(g)The video quality, whilst very good, was not sufficient for me to be able to determine when Mr Stephenson activated his left-turn indicator.
(h)The second video showed Ms Forsyth as she was driving the bus. In the seconds immediately prior to the accident, she is depicted looking in the direction of travel, apparently concentrating on the road conditions ahead.
18.As noted above, Mr Stephenson began to slow down at least by at 8:11:51am.
19.He claims to have put his indicator on at least five seconds before he started the turn into the bus lane.
20.On the balance of the probabilities I accept his evidence on this point and I accept the proposition that by about 8:11:50am Mr Stevenson had turned on his indicator and had begun to indicate his intention to turn left into the motor park.
Results of the accident
21.As a consequence of the accident the car was written off. I accept from the evidence that the car had a pre-accident value of the car was $9,480.
22.The bus suffered a small amount of damage to the front left of the cab. I accept from the evidence that the costs to repair the bus were $2,250.10.
Proceedings before ACAT
23.Notwithstanding the fact that the accident occurred in September 2016, proceedings were only commenced by the applicant in ACAT on 19 December 2019.
24.The applicant is seeking damages in the sum of $9,480 for the loss of the car, the ACAT filing fee of $156 and the payment of a smash repair quote of $81.39. In total the applicant seeks $9,711.39 plus interest.
25.The respondent denies that Ms Forsyth was negligent or otherwise responsible for the accident and claim that Mr Stephenson was responsible for the accident.
26.The respondent has filed a counterclaim seeking $2,250.10 for the costs of repairing the bus, the ACAT filing fee of $151 and interest, which at the date of filing the counterclaim was $382.80. The total sought by the respondent, on the day the counterclaim was lodged, is $2,783.90.
The law
27.The accident occurred in September 2016. At the time the relevant law was the Australian Road Rules (the rules), which were incorporated into ACT law under the Road Transport (Safety and Traffic Management) Regulations 2000.
28.The Australian Road Rules were repealed by the Road Transport (Road Rules) (Consequential Amendments) Regulations 2017 (No 1).
When to indicate?
29.The starting point to determining whether or not Mr Stephenson’ s driving was appropriate in the circumstances are rules 46(1) and (2) of the rules.
30.These rules require a driver in Mr Stephenson’s position to give notice of his intention to turn left, by turning on his left-turn indicator “for long enough to give sufficient warning to other drivers and pedestrians”. Rules 46(1) and (2) provide:
Giving a left change of direction signal
(1) Before a driver changes direction to the left, the driver must give a left change of direction signal in accordance with rule 47 for long enough to comply with subrule (2) and, if subrule (3) applies to the driver, that subrule.
Offence provision.
Note Changes direction to the left is defined in rule 45 (2).
(2) The driver must give the change of direction signal for long enough to give sufficient warning to other drivers and pedestrians.
31.These rules do not provide any guidance as to how much time the driver must indicate before executing a left-hand turn; the requirement is simply that he indicates for long enough to give sufficient warning to other drivers and pedestrians.
32.In contrast to rules 46(1) and (2), rule 46(3) does provide a minimum time (five seconds) in circumstances where a stationary vehicle is effecting a change of direction:
(3) If the driver is about to change direction by moving from a stationary position at the side of the road or in a median strip parking area, the driver must give the change of direction signal for at least 5 seconds before the driver changes direction.
33.As noted above, I accept Mr Stephenson indicated his intention to turn left, by turning on his left-hand indicator. I also accept the proposition that he turned on the indicator about five seconds before he started to turn left.
34.It appears to me that Mr Stephenson complied with his requirements under rules 46(1) and (2), in that he turned on his left-hand indicator and gave notice of his intention to turn left for a period of about five seconds.
35.In my opinion five seconds is “long enough to give sufficient warning to other drivers and pedestrians”.
When could Mr Stephenson enter the bus lane?
36.Rule 154(1)(a) prohibits drivers in Mr Stephenson’s position from driving in a bus lane. Rule 154 (1) (a) states:
154 Bus lanes
(1)A driver (except the driver of a public bus) must not drive in a bus lane, unless the driver is permitted to drive in the bus lane under rule 158.
37.There are exceptions to rule 154 (1)(a).
38.Rules 158(1)(a) and 158(4) allow a driver in Mr Stephenson’s position to enter into a bus lane and drive a distance of up to 100 metres in the bus lane, if he is intending to leave the road within that distance. Rules 158(1)(a) and 158(4)(b) provide:
Exceptions to driving in special purpose lanes etc
(1) The driver of any vehicle may drive for up to the permitted distance in a bicycle lane, bus lane, tram lane, transit lane or truck lane if it is necessary for the driver to drive in the lane:
(a)to enter or leave the road; or
(4) In this rules:
permitted distance means:
(a)for a bicycle lane or tram lane — 50 metres; or
(b)for any other lane — 100 metres.
39.From my viewing of the CCTV footage it appears that when Mr Stephenson first crossed into the bus lane, he was well within 100 metres of his exit point from Canberra Avenue into the motor park and consequently entitled to be travelling in the bus lane at the time of the collision.
40.It is difficult for me to be accurate, but based on my observation of the CCTV, he first appeared to cross into the bus lane when he was about 25 metres from the driveway of the motor park. At this time the bus was about 40 metres behind him.
41.From my observation it appears clear that Mr Stephenson did not offend against rules 158(1)(a) and 158(4) as he did not enter the bus lane prematurely, that is by more than 100 metres from his exit point from Canberra Avenue into the motor park.
42.It should be remembered that pursuant to rules 158(1)(a) and 158(4) he could have entered the bus lane earlier than he did. In my opinion he could have entered the bus lane about 75 metres before he did so.
43.The unfortunate effect of a driver like Mr Stephenson complying with rules 158(1)(a) and 158(4) is that a driver in Ms Forsyth’s position has a very limited period of time when the driver of a motor vehicle is entitled to be in the bus lane in front of her, before it executes a turn off Canberra Avenue.
44.The more a car driver delays entry into the bus lane, the shorter the amount of time a person in the Ms Forsyth’s position has to adjust to their presence ahead of them.
45.This is particularly concerning when one notes that in this case the speed limit was 80km/h and the person in Mr Stephenson’s position can only legally enter the bus lane within 100 metres of his exit point from Canberra Avenue into the motor park.
Ms Forsyth’s obligation to maintain a safe distance behind the car
46.Ms Forsyth’s position is further complicated by rule 126 which places an obligation on her to maintain a safe distance behind a vehicle in front of her. Rule 126 provides:
Keeping a safe distance behind vehicles
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.
47.The accident occurred when the car was in front of the bus.
48.Pursuant to rule 126 Ms Forsyth was required to maintain a sufficient distance behind the car travelling in front of her, so that she could stop safely to avoid a collision with the car.
49.She did not do so and as a consequence she is liable for the result.
50.In my view, Ms Forsyth was negligent in failing to avoid the collision by maintaining a safe distance between the bus and the car.
51.She should have seen and acted on:
(a)the car’s left-hand indicator being turned on about five seconds before the car began to turn left;
(b)the car slowing as it prepared to change lanes; and
(c)the car being driven into the bus lane.
52.Had she taken notice of those factors she may well have avoided the collision.
Contribution
53.Ms Forsyth’s inability to stop safely and avoid the collusion with car was exacerbated by Mr Stephenson’s late movement into the bus lane.
54.Mr Stevenson could not enter the bus lane prior to 100 metres from the entrance to the motor park.
55.He did not do so until he was about 25 metres from the motor park.
56.By my estimate he could have crossed into the bus lane about 75 metres before he did.
57.A vehicle travelling at 70km/h is moving at about 19.44 metres per second. A vehicle 80 km/h is moving at about 22.22 metres per second.
58.If one accepts Ms Forsyth’s evidence that she was driving between 70 and 80 km/h she would have had roughly another three and a half seconds to apply her brakes had Mr Stephenson intervened to the bus lane at about 100 metres from the entrance to the motor park, rather than about 25 metres from the motor park.
59.In my opinion Mr Stephenson contributed to the accident by failing to enter the bus lane at an earlier stage than he did. He could have entered the bus lane 75 metres earlier than he did which would have given Ms Forsyth more of an opportunity to stop before the accident occurred.
Summary
60.I find the applicant’s case is proved and that he is entitled to damages in the sum of $9,480.
61.I also conclude that the manner of his driving contributed to the accident. I estimate his contribution to be 20 percent ($1,896) and I reduce the claim for damages by that amount.
62.The respondent is consequently required to pay the applicant $7,584 in damages together with the ACAT filing fee of $156 and the payment of the smash repair quote of $81.39.
63.In total the respondent has to pay the applicant $7,821.39.
64.I do not intend to make an award of interest as it appears this action has been delayed for a significant period of time as other related litigation has progressed.
65.I dismiss the respondent’s counterclaim.
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Senior Member D Mulligan
HEARING DETAILS
FILE NUMBER:
XD 1191/2019
PARTIES, APPLICANT:
Luke Stephenson
PARTIES, RESPONDENT:
QCity Transit Pty Ltd ACN 001 260 242
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
Maliganis Edwards Johnson
SOLICITORS FOR RESPONDENT
Chamberlains
TRIBUNAL MEMBERS:
Senior Member D Mulligan
DATES OF HEARING:
June 2020
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