TAC v Marsh

[2009] VCC 187

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-07-03622

TRANSPORT ACCIDENT COMMISSION	Plaintiff
v
ANDREW MARSH	Defendant

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JUDGE:	HER HONOUR JUDGE MILLANE
WHERE HELD:	Melbourne
DATE OF HEARING:	3, 5, 6, 19 & 20 November 2008.
DATE OF JUDGMENT:	18 March 2009
CASE MAY BE CITED AS:	TAC v Marsh
MEDIUM NEUTRAL CITATION:	[2009] VCC 0187

REASONS FOR JUDGMENT

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Catchwords: ss.104 & 106 Transport Accident Act 1986 – third party indemnity for transport

accident

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Masel	Wisewoulds
For the Defendant	Mr S Smith	Sparke Helmore
HER HONOUR:

Introduction

1 This is an application by the Transport Accident Commission’s (“the TAC”) for indemnity from a third party (the defendant, Mr Marsh) made pursuant to s.104 of the Transport Accident Act 1986 (“the Act”). Section 104 relevantly provides:

Indemnity by third party

(1) If an injury or death arising out of a transport accident in respect of which the Commission has made payments under this Act arose under circumstances which, regardless of section 93, would have created a legal liability in Victoria or elsewhere in a person (other than a person who is entitled to be indemnified under section 94) to pay damages in respect of any loss suffered by reason of the injury or death, the Commission is entitled to be indemnified by the first-mentioned person for such proportion of the amount of the liability of the Commission to make payments under this Act in respect of the injury or death as is appropriate to the degree to which the injury or death was attributable to the act, default or negligence of the first-mentioned person.

(2) The liability of a person under subsection (1) shall not exceed the amount (including the payment of interest) which, but for this Act and Parts VB, VBA and X of the Wrongs Act 1958, the person would be liable to pay-

(a) to the injured person in respect of the injury: or
(b) …

(3) Judgment against or settlement by a third party in an action in respect of an injury or death referred to in subsection (1), whether by consent or otherwise and irrespective of whether the Commission has taken over proceedings in accordance with section 107, does not eliminate or diminish the right of indemnity given by this section, except to the extent provided in this section.

2 By an amended Statement of Claim pursuant to s.104 of the Act the TAC seeks:

(a)	to be indemnified by the defendant in respect to payments to and on behalf of Dr Leo Cooper and his wife Fanny Cooper of $6,645.20 and $202,979.77 respectively;
(b)	a declaration that the defendant indemnify the TAC in respect to such further payments as the TAC may be required to make to the Coopers;
(c)	costs; and

(d) interest.

3          Based on the pleadings and the evidence, this claim arises out of injury suffered by the Coopers in a transport accident on 24 March 2006 shortly after 2pm. This involved a collision between the Coopers’ Victorian-registered silver 2000 Nissan Pulsar sedan (driven by Dr Cooper with Mrs Cooper as a front seat passenger) which was travelling in a westerly direction along the Great Western Highway (“the highway”) in Springwood in New South Wales, and a New South Wales-registered red Toyota utility, driven by the defendant, which entered the highway from the Macquarie Road T-intersection (“the intersection”). Following this collision, the Coopers’ vehicle travelled across the median strip and collided head-on with a third vehicle, a white Commodore sedan, travelling in an easterly direction along the highway and driven by Matthew Kornacki.

4          The combined effect of the collisions was that both Dr Cooper and his wife suffered significant injuries for which compensation was paid. The injuries suffered by Mrs Cooper (in the main, skeletal and head injuries) were apparently life threatening.

5          The layout of the location of the collision between the Coopers’ sedan and the other two vehicles was not disputed. This is best described by the defendant’s expert witness, William Keramidas (a traffic and transport engineer specialising in collision reconstruction) in his report following his inspection of the site in June 2007. In this report, Mr Keramidas relevantly said:

“The Great Western Highway in the vicinity of the incident location can be described as a highway level road which runs generally east/west, is of paved construction, and generally comprises two carriageways.

On approach to the incident location from the east and travelling west [in the direction of the Claimants] the roadway exhibits a right-hand horizontal bend of approximately 215 metres radius. Approximately 95 metres east of the Macquarie Road intersection the west-bound portion of the carriageway comprises two traffic lanes, each of which measures approximately 3.5 metres in width. In addition, there is a paved shoulder of approximately 1.0 metre width on the southern side of the roadway. At this location the east and westbound carriageways are separated by means of a 2.5 metre wide concrete median.

Further to the west of this point an exclusive left-turn slip lane develops, such that on the immediate approach to the Macquarie Road intersection the westbound carriageway comprises three full traffic lanes with Lane 1 [the left-turn slip lane] measuring about 4.0 metres in width, Lane 2 [the first of the through lanes] measuring about 3.5 metres in width, as does Lane 3 [nearest the centre median]. On the departure side of the Macquarie Road intersection the left-turn lane ‘closes’ approximately 18 metres west of the centre of the Macquarie Road intersection. Further to the west of this point the highway resumes its two through lanes and paved shoulder, while the centre median increases to a width of about 5.0 metres.

With respect to the vertical profile of the highway on approach to Macquarie Road, it was found that the highway crests about 120 metres from the intersection and continues its downhill grade through a ‘sag’ vertical curve, through the area of the intersection prior to again heading uphill further to the west. The combination of a reasonably ‘tight’ right-hand horizontal bend and crest on approach to the intersection makes the negotiation of this intersection from the Macquarie Road intersection particularly hazardous, especially when combined with an expected approach speed of westbound traffic in the order of 80 km/h [being the posted speed limit].

With respect to the intersection itself, the author noted that the width of Macquarie Road was generally about 11 metres, while the intersection flared to about 25 metres in the vicinity of the control line. The intersection itself is controlled by means of a stop sign and single solid control line painted on the road surface. The effect of the left-turn lane and its continuation beyond the intersection over a short distance means that drivers positioned at the control line are in fact positioned about 4.5 metres south of the first of the through lanes. In total, drivers are required to negotiate the two through lanes over a distance of at least 12 metres prior to entering the opening in the centre median where they would be sheltered from both east and westbound traffic, having then available to them a right-turn slip lane [or acceleration lane] prior to merging with the eastbound traffic flows. …”

The issues

6          In accordance with a Notice to Admit dated 30 September 2008 (Exhibit “P7”), prior to the hearing, the defendant admitted the respective payments of compensation pursuant to the Act as particularised in printouts dated 21 September 2008. The reasonableness of these payments was not an issue at hearing.

7          The contest, as articulated by the pleadings amended at hearing, was particularised as follows.

8          As to the particulars of the defendant’s negligence:

“Particulars of Negligence

(a) Failing to give way

(aa) failing to comply with Regulation 67 of the Australian Road Rules (now repealed, but in force at the date of the accident);

(b)	Failing to keep a proper lookout
(c)	Driving into the path of the Coopers’ vehicle
(d)	Attempting to cross the Great Western Highway when there was neither time nor space to do so
(e)	Failing to apply the brakes on his vehicle
(f)	Failing to see the claimants’ vehicle
(g)	Failing to ensure the road was clear before attempting to cross it”

9          Relevantly, the now repealed Regulation 67 (Exhibit “P13” including the “Dictionary” – Schedule 99) provided that:

“AUSTRALIAN ROAD RULES - REG 67

Stopping and giving way at a stop sign or stop line at an intersection without traffic lights

67 Stopping and giving way at a stop sign or stop line at an
intersection without traffic lights

(1) A driver at an intersection with a stop sign or stop line, but without traffic lights, must stop and give way in accordance with this rule.

Penalty: Offence provision.

Note: “Intersection” and “stop line” are defined in the dictionary. This rule applies also to T-intersections–see the definition of “intersection”.

Note: For this rule, “give way” means the driver must remain stationary until it is safe for the driver to proceed–see the definition in the dictionary.

Note: Part 6 deals with stopping and giving way at an intersection with traffic lights.

Note: This rule only applies to a driver turning left using a slip lane if the stop sign or stop line applies to the slip lane–see Part 20, Divisions 2 and 3, especially rules 330 and 345.

(2) The driver must stop at the stop line or, if there is no stop line, the driver must stop as near as practicable to, but before entering, the intersection.

Note: “Enter” is defined in the dictionary.

(3) The driver must give way to a vehicle in, entering or

approaching the intersection except:

(a) … , or

(b) a vehicle turning left at the intersection using a slip lane,

or

(c) …

Note: “Give way line”, “oncoming vehicle”, “slip lane” and “U-turn” are defined in the dictionary.

… ”

10        In addition to denying any negligence, further, and in the alternative, the defendant alleged that:

“8 …

PARTICULARS OF MR COOPER’S NEGLIGENCE

(a) Travelling in the designated left hand turn lane, and signalling an intention to turn left, as he approached the intersection of the Great Western Highway and Macquarie Road;

(aa) Breach of Regulation 92 of the Australian Road Regulations (now repealed but in force as at the date of the collision);

(b)	Failing to drive in the designated lane for traffic continuing west on the Great Western Highway as he approached the intersection with Macquarie Road;
(c)	Moving into the path of the Defendant’s vehicle from the designated left hand turn lane;
(d)	Failing to travel at a safe speed;
(e)	Failing to keep a proper lookout;
(f)	Failing to take steps to avoid the collision;
(g)	Failing to pay any, or any adequate attention to the task at hand;
(h)	Failing to adequately apply the brakes of the vehicle;

(i)         Failing to adequately, or at all maintain control of the vehicle following the first impact;

(j)	Failing to adequately, or at all, steer the vehicle to avoid further collision;
(k)	Failing to adequately, or at all, manage and steer the vehicle following the first impact to avoid further collision.”

11        Relevantly, Regulation 92 (Exhibit “D5”) dated 22 October 2003 (tendered by the defendant who also relied on the Dictionary already tendered by the plaintiff) required that:

“92 Traffic lane arrows

(1) If a driver is driving in a marked lane at an intersection (except a roundabout) and there are traffic lane arrows applying to the lane, the driver must:

(a)	if the arrows indicate a single direction – drive in that direction; or
(b)	if the arrows indicate 2 or more directions – drive in one of those directions.

Offence provision.

Note 1 Marked lane and traffic lane arrows are defined in the

dictionary.

Note 2 Part 9 deals with traffic lane arrows at roundabouts.

(2) …”

12        In his final submissions, the defendant’s counsel noted that the defendant did not rely on paragraph (d) of his particulars of negligence and also confirmed that the defendant did not rely on any break in the chain of causation. Moreover, the defendant conceded that the left turning lane at the intersection was not a ‘slip lane’ and that he had breached the obligation imposed by Regulation 67 to stop and give way. Nevertheless the defendant submitted that, when account was taken of Dr Cooper’s negligence, the degree to which the injury was attributable to the defendant’s act, default or negligence should not be found to be “greater than 40 per cent”.

13        Accordingly, allowing for the concessions made, the defendant was bound to prove that Dr Cooper’s negligence was also a cause of the injury.

14        During the course of the hearing, amongst the rulings made by me, paragraphs 28-32 of a statement reportedly made by the defendant on 4 July 2006 to an investigator (Exhibit “D3”) and the statement of Constable Burston (Exhibit “D4” and in particular paragraph 7) who said that he spoke to the defendant at the scene of the collision, were admitted into evidence, providing as they did some rebuttal of the implicit imputation (arising from cross- examination) that some parts of the defendant’s evidence were unreliable because they were based on reconstruction. These statements were not admitted as proof of their content, although the plaintiff specifically relied on any inconsistencies between the defendant’s evidence and the statement made to the investigator.

15        One consequence of the admission into evidence of his statement was that Constable Burston was not required to attend to give evidence.

16        During final submissions, the defendant argued that having sought to rely on what in the past has been described as the “agony of the moment rule” it was incumbent on the plaintiff to plead this matter. In relation to the second collision, on the facts of this case, I was not satisfied that this challenge to the plaintiff’s pleadings was sustainable because the circumstance of Dr Cooper finding himself in a situation of emergency is a relevant factor in assessing the reasonableness of his reaction and, therefore, relevant to a determination of the issue of contributory negligence. I will say more about this matter in due course.

The evidence called and tendered

17        On behalf of the plaintiff, the Coopers, Paul Stephen Hughes (the driver of a vehicle travelling in a westerly direction along the highway), Senior Sergeant McWhinnie (formerly Senior Constable McWhinnie, who, amongst other things, attended the scene of the collision, obtained statements, and who was one of three police officers to conduct a taped record of interview with the defendant – Exhibits “P21” and “P22”) and Mr Kornacki were called. They gave evidence and each witness was cross-examined.

18        In addition to the defendant, Mr Marsh, (and on his behalf) Mr Jose Michael Gonzales (the driver of a vehicle travelling in an easterly direction along the highway) and Mr Keramidas, all gave evidence, although only Mr Marsh and Mr Keramidas were cross-examined.

19        Apart from the documents already mentioned, further documents tendered by

both parties comprised─

(a)	photographs (Exhibits “P1”, “P12”, “P15”);
(b)	hospital reports (Exhibits “P2”, “P3”, “P4”, “P5”, “P6”);
(c)	statements made by witnesses and police officers (Exhibits “P8”, “P14”, “D4”) ;
(d)	hand drawn sketches (Exhibits “P16”, “P17”, “P18”, “P19”);
(e)	claims forms and related documents (Exhibits “P9”, “P10”, “P11”);
(f)	documents relating to the police investigation (Exhibit “P20”);
(g)	a tape recording of the police record of interview of the defendant conducted by police together with a transcript (tendered as an “aide memoire”) (Exhibits “P21”, “P22”);
(h)	the report (with enclosures) of the defendant’s expert witness, Mr Keramidas (Exhibit “D1”); and

(i)      a copy of ‘Reconstructed Scene Diagram’ as marked by Mr Keramidas during the hearing. (Exhibit “D2”)

Background factors

20        At the time of the collision, Dr Cooper was 84 years of age. He is a holocaust survivor and an author who evidently undertook tertiary studies in Australia leading to a Doctorate and an Honorary Senior Fellowship of the Melbourne University Faculty of Arts. His wife of many years, Fanny Cooper (a retired paymaster), was 77 years of age. She was the front-seat passenger and navigator.

21        According to Dr Cooper, his mental and physical health were excellent and he held an unrestricted Australian driving licence (first obtained in 1951, the year he and his wife arrived in Australia).

22        Dr Cooper told the Court that some five to six days prior to the collision, he and his wife left Victoria in their Nissan sedan intending to take a leisurely drive to Sydney where they were to attend a wedding.

23        The night before the collision was spent north of Nowra in a motel in Kangaroo Valley and, on the morning of the collision, the Coopers proceeded north, intending to travel to Katoomba, the location at which they had spent their first annual holiday in Australia in the 1950s. This involved travelling in a westerly direction along the highway. Both the Coopers recalled that as they drove along the highway, they saw a sign – “Katoomba”, and Mrs Cooper, the navigator, also recalled saying , “… oh, that’s where we’re going”, and to her husband, “That’s the way to Katoomba, that’s fine”. This evidence is consistent with the Coopers having seen road signage located before the intersection (also referred to by other witnesses and depicted in the copy photographic evidence) which, amongst other things, informed west-bound vehicles travelling on the highway that Katoomba lay ahead.

24        Essentially then, to reach their intended destination, as they said, when their vehicle came upon the intersection the Coopers had no reason to leave the highway or change the direction in which they were travelling. Indeed, apart from directing Katoomba-bound traffic to proceed along the highway, the road signage I have mentioned also clearly directed traffic travelling to places such as Richmond and Springwood to turn left.

25        Accordingly, had the Coopers been travelling to, for instance, the Springwood Town Centre, they could have departed the highway at the intersection by entering the left turning lane which would have brought them into Macquarie Road where the defendant (whose vehicle faced both a stop sign and a single solid control line) was attempting to cross the west-bound lanes of the highway to join the traffic travelling in an easterly direction along the highway.

26        Whilst from time to time, in both the documents tendered and during the hearing, the left turning lane (with painted traffic arrows indicating a left turning direction) was referred to as a ‘slip lane’, by closing addresses it was common ground that the left turning lane did not meet the dictionary description of a ‘slip lane’ for the purposes of Regulation 67. Therefore, the defendant, positioned as he was at a stop sign and stop line, was obliged to stop and give way to vehicles “in, entering or approaching the intersection …”, and, as I have already mentioned, in closing the defendant’s case his counsel conceded that the defendant had breached Regulation 67 by not giving way to the Coopers’ vehicle prior to the collision.

27        At the time of the collision the defendant, then aged 23, had been working as a landscape gardener at his employer’s home located some two to three minutes drive from the intersection in a street off Macquarie Road in Springwood, and, as he told the Court at hearing, he was on his journey home when the first collision occurred. Indeed, it was clear from the defendant’s evidence that he was familiar with the intersection having, in the previous 12 months, regularly passed through it travelling to and from his employer’s home.

28        Without repeating the detailed description of the highway and the intersection provided by Mr Keramidas, I have proceeded on the basis that it was common ground that, as the Coopers’ vehicle approached the intersection, the highway consisted of the left driving lane (with painted arrows) and two through lanes for traffic travelling in a westerly direction (referred to throughout the hearing as Lanes 1, 2 and 3), the third lane being the lane closest to the median strip separating west-bound from east-bound traffic on the highway.

The Cooper’s evidence

29        Whilst neither of the Coopers were able to recall the number of lanes on the highway at the time (and Mrs Cooper could not recall the lane in which their vehicle was travelling), Dr Cooper was adamant that, prior to the collision, his vehicle was being driven “in the lane next to the divide, to the median strip. This I clearly remember …”, that is Lane 3, and that when he “heard the knock

at the back of the left-hand side of my car. I immediately found myself across

the median strip and facing the traffic”.

30        Dr Cooper described the time it took to cross the median strip as “in the split of second” and he recalled seeing a vehicle (as it turns out, probably Mr Kornacki’s Commodore) coming before he heard another “knock”; that is, before his vehicle collided with Mr Kornacki’s vehicle and Dr Cooper passed out. His next recollection was of an ambulance officer taking him by the arm and leading him to an ambulance.

31        Mrs Cooper’s recollection of the collision is even less detailed, although she recalled “a bang”, “a feeling of being pushed” and being “thrown over the dividing line” which during cross-examination she confirmed referred to the median strip.

32        Otherwise, Mrs Cooper appeared to have no recollection of the second collision, although she did recall seeing “an ambulance man” before she passed out.

33        Neither of the Coopers could recall seeing another vehicle and on his part Dr Cooper did not recall seeing the intersection prior to the collision.

34        Having been discharged from the Western Hospital the day after the collision, Dr Cooper subsequently moved into hospital accommodation to be near his wife who, because of the serious injury suffered by her (and prior to being transferred to the Alfred Hospital), remained in Intensive Care for about a month.

35        During Dr Cooper’s stay in hospital accommodation whilst his wife remained unconscious, Senior Sergeant McWhinnie obtained a statement from him, apparently handwritten by her and signed by Dr Cooper, although an unsigned typed copy was tendered at hearing (Exhibit “P8”). According to the evidence of Dr Cooper and Senior Sergeant McWhinnie, she also drew a sketch of, in Dr Cooper’s words, “where the accident happened and where my car was located”, which is dated 5 April 2006, and, as confirmed by Dr Cooper at hearing, bore his signature. Two copies of this sketch were tendered. The first as part of Exhibit “P8”, the second being Exhibit “P17”.

36        As to the ‘X’ marked on the sketch (which is located just west of the intersection in Lane 3 for west-bound traffic, with marks placed above and below the ‘X’ on the northern edge of the median strip), in his evidence-in- chief Dr Cooper identified this as being where the policewoman had explained to him that the accident happened.

37        Dr Cooper was also taken to parts of the typed statement, and relevantly confirmed telling the policewoman that:

(a)	He remembered the median strip along the middle of the road, but not the intersection where the collision occurred;
(b)	“From” the police officer’s sketch he could not recall seeing any vehicles stopped at the intersection; and
(c)	He did not recall “what lane I was driving in prior to the intersection until being in the lane next to the median strip, before I went over it”.

38        As my summary of the defendant’s evidence demonstrates in due course, a crucial issue to be determined in this case was the lane (that is, the location) in which the Coopers’ vehicle was travelling at the point of impact between their vehicle and the defendant’s vehicle; although, as submitted on behalf of the plaintiff, if Dr Cooper was wrong about being in Lane 3 his vehicle was probably in Lane 2 and the plaintiff should nevertheless succeed in this action.

39        In any event, in his evidence-in-chief and during re-examination, Dr Cooper, whose evidence I found to be credible and plausible, sought to explain any perceived discrepancy between his evidence at hearing and the record of his statement to the policewoman that he did not recall the lane in which he was driving prior to the intersection, by saying “I mean by that that I may have

changed lanes, say one kilometre, two kilometres before but I don’t

remember” and by also emphasising that just prior to the collision he had not
changed lanes.

40        Importantly, during cross-examination Dr Cooper did not resile from this evidence, notwithstanding the challenge to accept that the statement made to Senior Sergeant McWhinnie meant, and was intended to mean, that he had no recollection of the lane in which his vehicle was travelling at the time of the collision.

41        This then is the context in which Dr Cooper also explained in his evidence-in- chief that the ‘X’ marked on the police sketch was where he believed the collision occurred, because he “wasn’t aware exactly where it happened but

the Constable, she explained to me, according to – because the police came there and they saw what happened and she made a sketch and showed me, this is where you were and I said yes.”

42        Relevantly, in cross-examination Dr Cooper denied (as it turns out probably correctly) that the ‘X’ was a mark he made on the sketch. Moreover, he was not asked whether or not he had instructed the police officer to make this mark. Perhaps not surprisingly, during cross-examination Senior Sergeant McWhinnie, whilst acknowledging that she may have made the ‘X’ mark on the sketch, nevertheless rejected any suggestion that she had indicated to Dr Cooper the point of collision.

43        In cross-examination, amongst other things, Dr Cooper also:

(a)	recalled having driven a couple of hours before the collision;
(b)	acknowledged that apart from his visit to Katoomba in the 1950s he was not familiar with the area;
(c)	was unable to recall when he had last driven a long distance;
(d)	confirmed he probably complied with the rule to drive in the left lane of a highway unless overtaking;
(e)	stated that he only remembered “driving straight ahead of me next to the median strip.”;
(f)	demonstrated little familiarity with the features of the highway or the location of the intersection;
(g)	was unable to recall the speed of his vehicle. Nevertheless, based on his usual practice and his recollection that he was following the traffic, Dr Cooper was adamant that he was travelling under the 80 kilometre per hour speed limit;
(h)	after being shown photographs which indicate the likely point of impact extending from the front left hand side of his vehicle, agreed that when he said it felt as though it occurred “at the back” he was guessing;
(i)	when taken to an aerial photograph of the intersection (and consistent with his earlier evidence) stated that he could not recall the lane in which his vehicle was travelling prior to the commencement of Lane 1, and said “the only thing that I recall clearly is where I was when the accident occurred, that’s all I recall.”;
(j)	gave evidence that, from the time when his vehicle was hit, only a fraction of a second elapsed before his vehicle crossed the median strip, but added that “[m]aybe another half a second” elapsed before his vehicle collided with the white Commodore;
(k)	disagreed (“absolutely”) with the suggestion that immediately prior to the collision his vehicle was travelling in the left hand lane (that is, Lane 2) and that as he approached the left turning lane (that is, Lane 1) his vehicle moved into that lane;
(l)	consistent with the evidence given by him and his wife that they were travelling to Katoomba, denied the defendant’s allegation that his vehicle was one of a number of vehicles the defendant saw move into the left hand turning lane (that is, Lane 1) with its “left hand blinker” operating;
(m)	expressed his belief that, had there been time, he would have braked to avoid the collision with the white Commodore, although he was unable to recall having applied the brakes. These responses were given to a sequence of questions presumably based on counsel’s interpretation of the expert’s opinion that “even if [Dr Cooper] had not responded to the

initial impact for nearly 2.0 seconds he still would have been able to bring

his vehicle to a halt prior to colliding with the Holden” (Exhibit “D1”). I propose to deal with the issue of the reasonableness or otherwise of Dr Cooper’s reaction in due course. However, having reviewed the transcript of the questions posed on this issue during cross-examination (and not having had the benefit of the expert’s evidence beforehand) it became apparent that the primary question asked of Dr Cooper incorrectly interpreted the expert’s report to mean that Dr Cooper “had at

least 2 seconds after the collision with the utility took place in which to brake, and if you had applied the brakes there wouldn’t have been any

collision at all?”;

(n) reiterated that he had not seen the defendant’s vehicle before the collision.

The evidence of the defendant

44        In summary, in his evidence-in-chief, the defendant said that he stopped at the stop sign and watched the traffic (matters about which he was not cross- examined), at which time he noted that “there was traffic along both directions

as I pulled up to the stop sign. There was after a minute or so a break in east- bound traffic coming down the hill. I could see at about 400 metres away there was light traffic on the west-bound. The west-bound traffic cleared up and there was four cars in the turning lane with their indicators on to turn into

Macquarie Road”.

45        The defendant stated that he had a sideways view of all the vehicles in the turning lane indicating to turn left and, although he “… couldn’t see each

individual car on its own with space around it but I could definitely see all the

cars in the lane”, he “could clearly see that all four cars had their indicators
on”.

46        Even though he claimed to have stopped his vehicle “right at the white line, not over it or not – if behind it, not by far”, when his counsel took the defendant to a copy photograph taken at the stop line (Exhibit “P15” – p.196), the defendant explained that his view “… was a little bit back behind where it

appears the photo was taken. I had a better view of the side-on view of the

lane, the turning lane and both west-bound lanes”.

47        Indeed, allowing for his responses during cross-examination, the photographic evidence and the scene diagrams drawn by Mr Keramidas, the latter of which provide some idea of the probable view available to a driver of a vehicle waiting at and behind the stop sign, I was not persuaded that if waiting at the stop line, the defendant could and did have as clear a view of all of the vehicles in the turning lane and their left-hand turn indicators as claimed. Moreover, on the evidence I was satisfied that the defendant was wrong (and this was in part demonstrated by his expert’s evidence on this issue), if, as he claimed at hearing, he believed that the turning vehicles did not obscure his view of west-bound through traffic.

48        In any event, having noted that the “westbound lanes were clear”, the defendant said that he “glanced at the eastbound lanes to my left. There was

cars starting to come up and over the hill. I glanced back to my right and then again to the left as it was a pretty cautious sort of intersection. Then I glanced

back to my right again as I pulled out from the stop sign” (sic).

49        The defendant estimated that between 10 and 20 seconds elapsed from the time he first looked right to the time he commenced to pull out into the highway, although he also explained that the “last glance” he took was “like a few seconds before I pulled out onto the highway”.

50        Moreover, the defendant said that when he last glanced to his right, it was “…

to mostly look to where I was pulling out into the other side of the landing to

the waiting bay area”, that is, the gap in the centre median strip.

51        In cross-examination the defendant denied that he had glanced left to ensure that traffic was clear on both sides. However, he did indicate that his practice was to wait until there were no vehicles between the crest of the hill and the intersection other than vehicles in the left turning lane, after which he would proceed with his right hand turn and, on this occasion he could have waited up to 5 minutes before moving when the only west-bound traffic he saw was in the left turning lane, the east-bound traffic having cleared up a minute or so earlier.

52        As to the other matters on which the defendant commented during his evidence-in-chief he stated that:

(a)	he had “barely moved” from his “stopping position when I collided with the – the car coming out of the turning lane”; that is, “Mr Cooper’s car, sorry”;
(b)	he rolled his vehicle forward “and because there was nothing coming in

the east bound – two lanes of the highway – I hadn’t rushed my acceleration, mostly just was driving at a slow pace across the highway to get into the turning lane – into the waiting bay on the other side of the

median”;

(c)	he could not estimate the speed of his vehicle “because the impact was almost instantaneous” as soon as his vehicle “left the stop line”;
(d)	(in response to a question about whether his vehicle moved backwards or forwards after the collision) following the initial collision, his vehicle “stopped still, I had my foot on the brake and it didn’t move anywhere”;
(e)	prior to the collision he had observed the Coopers’ vehicle as “the last car in the turning lane”, that is, the fourth vehicle, and he reiterated this during cross-examination;
(f)	(whilst he was not able to say anything about the “state of the indicators” on the Coopers’ vehicle at the time of the collision) when he saw the Coopers’ vehicle in the left-hand turning lane, he did notice that “all four cars had their indicators going – activated”. During cross-examination the defendant repeated that he had seen the left hand indicators operating on each of the four vehicles in the left hand turning lane. However, he was unable to recall the colour, make, or type of the first three of the four vehicles, all of which were moving without being far enough apart to discern a clear gap around each vehicle. As to the first of these vehicles, the defendant agreed that to execute its turn it would have slowed down considerably, and that it was almost upon the corner when he saw the four vehicles. He also appeared to accept that this first vehicle was probably travelling at no more than 20–25 kilometres per hour preparatory to turning the corner with the speed of the following vehicles being not very much greater;
(g)	he sat in his vehicle and watched the Coopers’ vehicle veer “across both

westbound lanes on a right-hand arc. It seemed to be speeding off almost. It was driving pretty fast. It veered across to the right-hand side

before mounting the median strip” where the vehicle “continued on its

right-hand arc across to the opposite side guardrail on the eastbound lane before swerving at another arc back to the left this side, back

towards the median strip”, after which the defendant saw the vehicle collide “head-on with another car coming down the hill”;
(h)	his estimate of the time between the two collisions (“It seemed like I was watching it in slow motion”) was “maybe ten, 15 seconds maybe”;

(i)      he had not seen the brake lights on the Coopers’ vehicle;

(j)

following the second collision, he “put [his] car in to park, pulled the hand brake on” and ran up to the scene of the collision. Subsequently the defendant said that he returned to his vehicle and (to clear the way for traffic leaving Macquarie Road) he reversed his vehicle into a street around the corner (which I took to mean Railway Parade with intersects with Macquarie Road before the highway); and

(k)

before he moved his vehicle, it was parked “just out of the stop sign, the

white fixed line, about halfway in between what would be the turning lane if the turning lane kept straight ahead. There was like a shoulder like

unbroken – I mean – sorry – broken lined lane almost”.

53        In addition to the matters I have already summarised, during cross- examination the defendant relevantly:

(a)	acknowledged that, having used the intersection for most working days in the year prior to the collision, he had never been confused as to which of the lanes on the highway was for travelling straight ahead or for turning left;
(b)	stated that right turning traffic at the intersection faced busy traffic during peak hour although on the date of the collision, at just after 2 pm, the traffic was “not particularly” busy. This response was clearly at odds with his response that he could have waited up to 5 minutes before moving and, as it turns out, the statement he made to an investigator some months after the collision (Exhibit “D3”);
(c)	agreed that in keeping with the evidence of more extensive damage to the front passenger side of his vehicle the strongest point of collision was between this side of his vehicle and the passenger front corner of the Coopers’ vehicle; and
(d)	agreed that his vehicle had “partially” commenced its turn, and, whilst he was not certain of this, he described the angle his vehicle had reached as less than 45 degrees.

54        A significant part of the cross examination of the defendant was directed to the record of interview conducted by police on 29 March 2006 and to the reliability of the defendant’s evidence that the Cooper’s vehicle was one of four vehicles seen by him in the left turning lane with its indicator operating.

55        This issue was explored first by replaying the taped record of interview (Exhibit “P21”. See also Exhibit “P22”, which, subject to one correction, was accepted as an accurate transcript) in which, amongst other things, the defendant said

“…I waited until there was approximately three or four cars, probably four cars in the turning lane, to turn left, all with their left indicator on and the other two lanes were clear all the way up to the crest, so I looked back to my left just to check the traffic on the other side coming down the hill and that was a fair way away as it was probably at the top of the hill as well. So I looked back to the right again and both lanes were still clear and there were still cars in the turning lane to turn right – left, sorry, with their indicator on. I glanced back up to the left just again just to make sure there was no traffic like about to come in on me. I turned my head back around and went to pull into the intersection into the middle of the median strip where there was like a little waiting bay. When I turned back around and drove maybe a metre forward before colliding with the other car…”

56        At question 10 of the record of interview the defendant was relevantly asked and responded as follows:

“Q10. With the car that you did collide with, where did you last see that before the point that you pulled out and then collided with it?

A It was – I didn’t recognise it amongst the cars in the turning lane ‘cause at the time all I was looking for was cars on the two lanes of traffic and I saw all the cars in the turning lane with their blinkers on, indicators on, so I just was just watching for the other lanes.”

57        Based on this question and answer it was put to the defendant that he could not swear that the Cooper’s vehicle was in fact one of the vehicles in the turning lane to which the defendant said:

“When I had pulled out from the intersection, the cars in the turning lane – there was still at least two cars in the turning lane when I’d last glanced to the right. There wasn’t enough time for them to complete the turn. If there had been another car behind Mr Cooper, it would have witnessed the collision between myself and him.”

58        Whilst this answer was illuminating it was not responsive and when pressed I was satisfied that the defendant acknowledged that during the record of interview he had not made clear to police that (as claimed by him at hearing) he recognised the Cooper’s vehicle as being among the “probably four” vehicles seen by him in the left turning lane with their indicators operating. In a series of responses given by him the defendant’s explanation for this was that he was overwhelmed and intimidated by the interview with police and that he was not:

“… sure of a few answers. I didn’t want to give anything that may be held against me… Well, I didn’t mean, I didn’t want to answer anything that at the time I wasn’t 100 per cent sure of. So that’s why I gave the answer I did… At the time, even though it’s fresh in my mind, there were still things I hadn’t had time to think about in full.”

59        Ultimately, the defendant agreed that his recollection that the Cooper’s vehicle was “one of the cars that had its indicator on” had come to him subsequent to the record of interview.

60        I accept that a fair understanding of the defendant’s evidence requires consideration of the whole of the record of interview and the various other accounts given by him (Exhibits “D3” and “D4”), admitted into evidence not as proof of their content but to rebut the imputation of reconstruction and, insofar as the statement given to the investigator demonstrates this, to highlight any conflict between the various accounts he gave.

61        For instance at question 25 of the record of interview the defendant was also asked had he seen whether the Cooper’s car had any indicators on before or after the collision, to which he replied “no, no I didn’t notice”.

62        However, having also been asked by the police about the number of cars in the left turning lane when the defendant “decided to turn out and go right” I think it clear from the answers given that before entering the intersection (“maybe a metre or so”) he noted that the number of vehicles in the left turning lane was down to two and that they both had their left indicators operating.

63        Without repeating all of the content of Constable Burston’s statement it is apparent from this statement that at some stage after 2.11pm he noted a conversation with the defendant from which he quoted the defendant as saying:

“I stopped and they had there (sic) blinker on. I thought they were turning left. You know I was gonna move out to the gap on the side to get across. I thought they were turning. I started to turn onto the road and they were in front of me. I hit them on the side. They were in front of me and when I hit them they seemed to go across the road. The other car hit them in the front…” (Exhibit “D4”)

64        However, in addition to this account three and a half months after the collision and the police record of interview, the defendant also made a statement to an investigator, the relevant parts of which said:

“…

28. On approach to the intersection I stopped at the stop sign

and the unbroken white line across the intersection. I waited for
2-3 minutes as traffic heading westbound was quite heavy.

29. I recall that there was a line of four cars that had exited lane 1 westbound of the Great Western Highway. These cars were in the left hand turning lane and were all indicating they were turning left into Macquarie Road.

30. I recall that three of these vehicles had made their turns. I

had looked beyond these cars and saw that there was a break in
the traffic heading westbound on the Great Western Highway.

31. The claimant’s car was the last car of the four and the left hand blinker was activated. I then rolled forward from the solid white line and was making my way across the intersection. The front of my vehicle had rolled about two metres into the turning lane.

32. I did not see the claimant’s vehicle just before it impacted with mine. My assumption is that the claimant who was driving had realised he was in the wrong lane and had accelerated out from the turning lane.

…” (Exhibit “D3”)

65        There are some obvious discrepancies between the defendant’s accounts at different times not the least of which was his estimate of the time he waited at the intersection, the number of vehicles in the left turning lane that had completed their turn and the distance over which his vehicle travelled into the void to the point of collision.

66        In my view, having regard to all of the evidence and in particular his various accounts, I formed the view that the defendant’s belief that the Cooper’s vehicle was the last in a line of four vehicles he said entered the left turning lane with indicators operating was most likely his reconstruction (not recollection) of from where he thought the Cooper’s vehicle had emerged. In reaching this conclusion I have given particular weight to the evidence of the “blind spot” created by vehicles in the turning lane and the defendant’s failure to appreciate or, as it turns out, acknowledge this particularly dangerous feature of this intersection.

67        One further matter which emerged during cross-examination was that the defendant persisted in his belief (wrongly as his counsel has since conceded) that under the applicable road rules he was not required to give way to vehicles in the left turning lane.

68        In short, the defendant alleged that the Coopers’ vehicle entered the first lane with its left-hand indicator operating as the last vehicle in a line of four vehicles turning left from the highway and that, instead of turning left, the Coopers’ vehicle drove forward and struck his utility after it had “barely moved” from behind the stop line and it was still negotiating the void.

The witness evidence

69        On the date of the collision, as part of the west-bound traffic on the highway, Mr Hughes, an ambulance officer, and his wife, a front-seat passenger, were travelling home (in Lane 3). Both in his evidence-in-chief and during cross- examination, Mr Hughes explained that prior to this event he was familiar with the intersection as he had used the highway over a 14 or 15 year period. Indeed, Mr Hughes said that during 15 years as an ambulance officer, he had attended about “a dozen” accidents at the intersection, all of which involved a vehicle attempting to exit from Macquarie Road and colliding with vehicles travelling on the highway. In cross-examination, he agreed it was a dangerous intersection.

70        In his evidence-in-chief, Mr Hughes relevantly said that on the date of the collision, after passing through the intersection and as his vehicle followed the right curve of the highway, he heard “a crunch and a thud” behind him. This apparently caused him to check first his left (“rear”) mirror, then his rear-vision mirror at which time Mr Hughes saw a “red ute” almost completely into Lane 2 of the highway and it was moving or rolling slowly backwards “in reverse”.

71        Subsequently, when he glanced into his right side mirror, Mr Hughes also described seeing a silver sedan “bouncing across the median strip” and onto the incorrect side of the road which caused some east-bound vehicles (possibly three) to swerve around the sedan before Mr Hughes saw the brake lights on a white Commodore “go on” and “the back of this car seemed to rise

up a little bit and collided head on with this car travelling on the wrong side of

the road”.

72        Mr Hughes was shown a bundle of copy photographs (Exhibit “P13”) variously depicting the intersection, the view from west of the corner of Macquarie Road, the road signage, the west and east-bound lanes of the highway and the median strip.

73        Having examined these photographs, Mr Hughes identified and marked where he saw “more [or] less of the whole of the… red ute, was across the dotted line” separating Lanes 1 and 2; identified and marked the location of his vehicle in the lane next to the median strip; stated that the road signage I have already mentioned was located after the point at which the left lane commenced and about 500 metres before the intersection and from his knowledge of the intersection agreed that if, rather than turning left, a vehicle in the left turning lane proceeded approximately west over the Macquarie Road intersection, it would eventually collide with the guard rail. In other words, had the Cooper’s vehicle continued its alleged journey through the continuation of Lane 1 (the void) and not been deflected by the collision with the defendant’s vehicle or otherwise changed course, it would have collided with the guard rail.

74        Mr Hughes also told the Court that, whilst driving on the highway (and this evidence was consistent with that given by the defendant), he had never felt confused, nor had he observed other drivers to be confused, as to whether Lane 1 was a left turn lane and Lane 2 was for continuing traffic. This evidence tends to counter any suggestion that after his vehicle came over the crest of the hill Dr Cooper was in some way confused by the presence of a third lane, albeit one for left turning vehicles.

75        During cross-examination, Mr Hughes─

(a)	was taken to a statement made to police (which was not tendered) and to a sketch drawn by Senior Sergeant McWhinnie and dated 28 March 2006 (Exhibit “P18”) on which he agreed he drew squares depicting the location of the silver sedan (that is, the vehicle that crossed the median strip), his west-bound vehicle and the red ute, the latter square as drawn showing that when Mr Hughes first saw the red ute, the front of this vehicle was in line with the lane marking dividing Lanes 1 and 2. However, notwithstanding his acknowledgement of this, in re-examination Mr Hughes explained that he saw the front of the red ute in the “centre lane marker as I was slowing up going west” and added that the red ute was “just in front of the centre lane marker, between lane 2 and lane 1”;
(b)	agreed that his memory of the position of the vehicles when the sketch was drawn was better than at the date of hearing;
(c)	explained that he had reduced the speed of his vehicle by the time he saw the red ute;
(d)	said that he did not hear the sound of heavy braking in association with the “silver car”;
(e)	at first estimated that the “silver car” was on the wrong side of the road for a “few seconds” before the collision with the Commodore “but it seemed like forever like it does with a lot of MVAs”;
(f)	agreed that there were a couple of seconds between the last vehicle swerving to avoid the silver car before the collision with the “white car”. However, on re-examination, whilst he did not say this with any confidence, Mr Hughes thought 10, “even” 15 seconds could be the time that elapsed between the Coopers’ vehicle passing on to the wrong side of the road and the second collision.

76        I found Mr Hughes to be an impressive and generally credible witness. Whilst there appears to be a discrepancy between his evidence and the position at which he drew the defendant’s vehicle on the police sketch, I think, at least in part, this is explicable by reference to his evidence that when it was first seen by him, the defendant’s vehicle was moving backwards. In any event, even if the position of the defendant’s vehicle was as drawn in the sketch, it nevertheless makes more likely the plaintiff’s submission that the collision occurred whilst the Coopers’ vehicle was travelling west in a lane for through traffic but certainly not in the area of the void as claimed by the defendant. Indeed, as I have already mentioned, the plaintiff submitted, I think correctly, that for the purpose of this case, it did not matter if the Coopers’ vehicle was travelling in either Lane 2 or 3, although its primary submission was that Dr Cooper was probably correct when he said that he was in the lane nearest to the median strip, that is Lane 3.

77        In her evidence-in-chief, Senior Sergeant McWhinnie –

(a)	was taken to and adopted paragraphs 1 to 49 inclusive of a statement made by her on 7 August 2006 (Exhibit “P14”);
(b)	explained the sequence of photographs taken on the date of the collision (Exhibit “P15”);
(c)	acknowledged that she prepared each sketched outline of road details to which she and/or the witnesses (that is, the defendant, Dr Cooper, Mr Hughes, and Mr Gonzales, Exhibits “P16”, “P17”, “P18” and “P19”) added information;
(d)	identified the Police Event document created by her as part of the computer operational policing system (“COPS”, Exhibit “P20”); and
(e)	confirmed that the record of interview of the defendant conducted by her, Constable Roach, and Sergeant Schneider, on 29 March 2006 (Exhibit “P21”) was taped (Exhibit “P22”).

78        Amongst other things, her statement indicates that Senior Sergeant McWhinnie attended the scene more than an hour and a half after the collisions and some time after three other police officers (one of whom was Constable Burston) had arrived and, as his statement dated 13 June 2006 (Exhibit “D4”) confirms, on that date Constable Burston spoke to the defendant about the cause of the collision.

79        In amongst the many matters Senior Sergeant McWhinnie addressed in her statement, she noted that:

(a)

notwithstanding the presence of debris (that is, broken glass) on the highway, because traffic using the highway had scattered the debris, she was unable to ascertain the point of impact between the Coopers’ vehicle and the defendant’s vehicle. However, at hearing, relying on her memory, this police officer said, “it had been spread between what I called the void area and Lane 1, west-bound”. In cross-examination on this issue, Senior Sergeant McWhinnie confirmed that she made “a careful observation of the debris” and said that the debris “pattern” she observed (presumably that described in her evidence-in-chief) was consistent with the collision occurring either in Lane 2 (that is a continuous lane of the highway) or the void (that is Lane 1);

(b)

the front nearside and offside tyres of the Coopers’ vehicle were deflated and the rims were buckled and damaged (Exhibit “P14”). As my discussions of the expert evidence reveals in due course, this evidence of damage to both front tyres and wheel rims is consistent with both tyres being damaged and deflated prior to the second collision, and as the expert evidence indicates a deflated tyre would have reduced Dr Cooper’s capacity to brake before the second collision.

80        In respect to the separate sketches drawn by Senior Sergeant McWhinnie to which either she or a witness added information, Senior Sergeant McWhinnie said that –

(a) the defendant “drew in his vehicle, which is shown by the rectangle at the

stop line at the intersection of Macquarie Street, and it is also indicating a

mark that says one metre ...” (Exhibit “P16”);

(b) she recalled looking at Dr Cooper’s statement (Exhibit “P8” and see the sketch Exhibit “P17”) in which he stated that she “drew a rough drawing

of the intersection where the collision happened. From this drawing, I don’t recall seeing any cars that were stopped at the intersection to the left hand side of the road. I don’t recall what lane I was driving in prior to the intersection, until being in the lane next to the media (sic) strip,

before I went over it”.

(c)	she recalled that the ‘X’ (in Lane 3 just west of the intersection) represented the place that Dr Cooper “remembered being on that stretch of roadway”, but she could not recall whether she or Dr Cooper (who said in his evidence-in-chief that the ‘X’ represented “the spot where the policewoman explained to me, this accident happened”) “made the cross depicting the point he was indicating ...”. However, I note that in cross- examination Senior Sergeant McWhinnie rejected (in all the circumstances I think quite plausibly) any suggestion that the ‘X’ marking was made by her as an indication to Dr Cooper of where the collision had taken place;
(d)	she took a statement (not tendered at hearing) from Mr Gonzales which included the sketch drawn by her (Exhibit “P19”), but, apart from her written comments, Senior Sergeant McWhinnie could not recall whether she or Mr Gonzales had added the details concerning the cars, all of which information she thought would have been obtained from Mr Gonzales; and
(e)	she took a statement from Mr Hughes (not tendered at hearing) on 28 March 2006 which included the sketch drawn by her (Exhibit “P18”), but again could not say whether, on the information provided by him, she or Mr Hughes drew the details on the sketch.

81        In cross-examination Senior Sergeant McWhinnie was taken to photographs (Exhibit “P15”) and her statement (Exhibit “P14”) in the latter of which she noted, amongst other things, road markings such as tyre burns and scuff marks and brake marks. In all, Senior Sergeant McWhinnie agreed that this evidence was consistent with –

(a)	the Commodore having braked heavily;
(b)	the brakes on the Coopers’ vehicle not being applied, with this vehicle steering to the right and back to the left before the collision with the Commodore; and
(c)	the brakes on the Coopers’ vehicle not being applied “to cause tyre burn marks” on the western side of the highway.

82        Following the collision, Senior Sergeant McWhinnie prepared reports to her superiors (Exhibit “P20”) in which, amongst other things, she alluded to various features of the intersection (as, for example, the left hand bend followed by a negative grade at the approach to the intersection and the offset between the east and west curves of the intersection which create a void between the stop line and the western curve of Macquarie Road). These features, combined with the 80 kilometre per hour speed limit on the highway, Senior Sergeant McWhinnie opined, produced a dangerous intersection, a circumstance on which both parties relied for the determination of the appropriate standard of care applicable to each of the drivers.

83        Relevantly, the reports to Senior Sergeant McWhinnie’s superiors also contain her report to the Crash Investigation Unit (CIU) as part of which Senior Sergeant McWhinnie informed her superiors that: “MARSH stated, he saw

COOPER and 2 further vehicles with their left indicators on, in the left hand

turn lane…” As Mr Keramidas’ report shows, he used this particular report to the CIU including the statement I have extracted above as part of his analysis of the dynamics of the collisions. In doing so it appears to me that the expert failed to appreciate, amongst other things, the order in which the defendant alleged the vehicles (including the Cooper’s vehicle) entered the left-turning lane.

84        In his evidence-in-chief Mr Kornacki recalled “travelling down the mountain

towards Penrith. I saw a car crossing the median strip with a front right-hand tyre that was flat and as I saw the car crossing the median strip, I applied my

brakes and went into a skid and hit the other car head-on”.

85        Mr Kornacki estimated –

(a)

his speed as being “roughly 90 kilometres per hour”, which, he said, “dropped when he applied his brakes”. (Mr Keramidas’ opinion that, due to the “very similar” extent of crush damage to each vehicle, both Mr Kornacki’s vehicle and Dr Cooper’s vehicle had contributed “similar approach speed characteristics… about 40 km/hr each…” tends to confirm that Mr Kornacki probably braked heavily prior to impact); and

(b)

the time between first seeing the Coopers’ vehicle on the median strip and the impact as being “about 8 seconds”.

86        In cross-examination, Mr Kornacki, amongst other things, accepted that in view of the evidence of Senior Sergeant McWhinnie and the expert witness he may have been wrong about the collision occurring as soon as the Coopers’ vehicle left the median strip. He also accepted that the shock he experienced in the collision may have impacted on his recollection of having seen a flat tyre, although in re-examination Mr Kornacki nevertheless confirmed that he recalled noticing that the front right-hand tyre was flat. In these circumstances I have accepted that his stated recollection on this matter is probably accurate.

87        Mr Gonzales, a council worker, told the Court that he saw an advertisement in the newspaper as a result of which he contacted police and was interviewed by a female police officer. He said that on the date of the collision he was working at Penrith and travelling downhill in an easterly direction on the highway to work at Faulconbridge. Mr Gonzales gave evidence that he was very familiar with the intersection, and that at the time he estimated the speed of his vehicle at between 65 and 70 kilometres per hour. Mr Gonzales told the Court that he noticed a “ute” waiting at the intersection, although he could not recall the colour, but nevertheless appeared to remember the vehicle as one he had seen driving around Springwood.

88        As he was travelling along the highway, Mr Gonzales said that he was “nearly

– close by and suddenly another car was coming up to Katoomba and hit the car and it really scared me because I had a big truck behind me, I couldn’t really do much so I just looked at my mirror and I saw the car crossing the

middle strip, up the hill and that was what I saw”. If anything, the evidence of the presence of Mr Gonzales’ east-bound vehicle followed by a truck is inconsistent with the defendant’s claim at hearing that east-bound traffic had cleared a minute or so before he moved his vehicle.

89        Without being able to recall the colour of the “car”, Mr Gonzales described it as a sedan which he had seen coming “up to Katoomba and around the – it was coming around the bend. It just suddenly hit the car...” and also explained that he “was nearly close to Macquarie – Macquarie Street” when he saw “the car coming”.

90        Through a series of questions asked during his evidence-in-chief it became apparent that Mr Gonzales’ recollection of the circumstances of the collision was very fragmented and confused. Nevertheless, prior to being taken to the sketch he acknowledged he signed (Exhibit “P19”), Mr Gonzales’ further evidence was to the effect that when he first saw the sedan and at the time of the collision it was in the left lane of the highway (that is Lane 2) travelling west to Katoomba, whereas at the point of collision the “ute” was stationary at the “T-intersection”. However, Mr Gonzales was not able to say what course the sedan took from when first seen by him because his attention was diverted by the fact that he had a “big truck” behind him.

91        In relation to the sketch, notwithstanding the many objections raised and the opportunities given to counsel to ask the witness whether there was anything further he recalled, the questioning of Mr Gonzales proceeded in a very unsatisfactory manner because the witness was again questioned, for instance, as to the course the Cooper’s vehicle took and the lane in which it was travelling. This questioning elicited further responses from Mr Gonzales to the effect that he had not observed the Cooper’s vehicle change lanes and that prior to the collision he recalled that it was travelling close to the left hand side of its lane.

92        Mr Gonzales was not cross examined. In any event, allowing for the circumstances in which his evidence was given, I did not find his evidence as helpful as it might otherwise have been in establishing the relevant facts in this case.

The evidence of the expert witness

93        Mr Keramidas prepared a report dated 14 December 2007 with enclosures (Exhibit “D1”), the content of which was adopted by him in his evidence-in- chief. Relevantly, in amongst the material relied on to prepare this report, Mr Keramidas had access to three witness statements, that is, from Mr Gonzales, Mr Hughes and Mr Hughes’ wife (the latter of whom did not give evidence).

94        Dr Cooper’s statement (Exhibit “P8”) with the sketch (Exhibit “P17”) which Mr Keramidas wrongly believed contained markings made by Dr Cooper, a copy of Constable Burston’s statement (Exhibit “D5”, containing his report of a discussion with the defendant at the scene), and Senior Sergeant McWhinnie’s statement and the report by her to CIU also formed part of the materials to which the expert said he referred. Otherwise, Mr Keramidas did not have access to, amongst other things, the transcript of the record of interview conducted by the police or, it seems, to the investigator’s report.

95        These omissions may in part explain the expert’s failure in his report to emphasise the likely “blind spot” created by the presence of any vehicles in the left turn lane prior to the first collision, and more significantly his failure to appreciate that the defendant had previously said (and reiterated this at hearing) that the Cooper’s vehicle followed other vehicles into the left turning lane.

96        Relevantly, Mr Keramidas’ report contained the following conclusions:

“1. The probable impact location was assessed as being marginally into Lane 2 of the westbound lanes [although there could be some variation to this point], and at a time when the Claimant had applied heavy steering to the right.

2. The likely approach path of the Nissan was consistent with the account of the eastbound witness, being that the vehicle entered [or at least partially entered] the left-turn slip lane immediately prior to the collision with the Insured’s Toyota.

3. It appears that the speed of the Insured’s Toyota [as evidenced by the crush profile] would have been in the order of about 10 km/h or so, while the speed of the Claimant’s vehicle is assumed to have been about 80 km/h.

4. The trajectory of the Nissan across the centre median, as well as the likely proximity to the centre median where the first impact occurred, matches the physical evidence of the impact configuration outlined in the body of the report, being slightly greater than at right angles.

5. The Claimant is likely to have had an opportunity to significantly reduce the severity of the impact by taking some action in the 75 metres or so from the first impact [with the Toyota] until reaching the point of the second impact [with the Holden].

6. It is almost certain that the injuries sustained by the Claimant and his wife are likely to have been solely caused by the second impact with the Holden, being a far more severe impact than the first [with the Toyota] and frontal in nature.

7. The author is unable to identify why the driver of the Nissan has drifted or moved into the left-turn slip lane, other than to indicate that such a driver error would be assisted by the road layout at that point.

8. The physical features and geometry of the intersection are

likely to have been significant contributing factors to the subject
collision having taken place.”

97        A number of matters of interest emerged during Mr Keramidas’ evidence-in- chief. In summary, he –

(a)	explained that because of the particular features of the intersection and the highway, if vehicles were contained within the left turning lane they would have obstructed the view of a driver waiting at the stop line to turn right and the view of a west-bound driver. According to this witness the defendant probably had a clear view of west-bound vehicles coming over the crest. However, his view of vehicles travelling in Lane 2 or partially in the left turning lane could become obscured by the vehicles in the left turning lane. Similarly, vehicles in the left turning lane would also tend to obscure a west-bound vehicle’s view of a vehicle waiting at the stop line;
(b)	calculated that a west-bound vehicle travelling at a couple of kilometres under 80 kilometres per hour would take 5.5 seconds to travel from the crest of the hill to the intersection;
(c)	said that depending on the number and size of the vehicles in the left turning lane, the obscuring element would affect the driver waiting at the stop line subject to potential glimpses for very small fractions of a second as the vehicles moved ;
(d)	estimated the safe turning speed for vehicles in the left turn lane as being in the order of 10-15 kilometres per hour;
(e)	explained that at the stop line a driver’s view of vehicles in Lane 2 would have improved with the diminution in the number of vehicles in the left turning lane;
(f)	(based on the defendant’s evidence that his vehicle travelled one metre into the intersection and assuming “normal” acceleration) estimated that would have taken the defendant’s vehicle about 1.15 seconds to travel one metre into the intersection;
(g)	(allowing for factors such as the supposed speed of the Cooper’s vehicle and the defendant’s belief that the collision occurred one metre from the intersection) accepted that the Cooper’s vehicle could have been 25½ metres from the point of collision when the defendant commenced his turn;
(h)	said that in this case the location of the debris “more eliminates the

areas where it’s unlikely to have occurred, rather than identify a precise

area where it did”. To this purpose Mr Keramidas marked a reduced “Reconstructed Scene Diagram” (Exhibit “D2”) excluding all of Lane 3 and, if the debris was within the void, excluding “a small section just on the departure side of the stop line”. Mr Keramidas appears to have eliminated Lane 3 because, in his view, the passage of vehicles would cause debris to migrate left (and I interpolate here if changing lanes these vehicles could also impact on the debris pattern) and said he would have expected debris to straddle the broken white line between Lanes 2 and 3. Nevertheless, Mr Keramidas did not exclude Lane 2 because he reasoned that the passage of vehicles could have pushed debris from Lane 2 out into the void. However, notwithstanding the defendant’s evidence on this, Mr Keramidas excluded an impact one metre or so from the stop line because he said that he would have expected the debris to migrate closer to Lane 2 and, if anything, further back toward the stop line. In any event, as with Senior Sergeant McWhinnie, based on the debris pattern alone, Mr Keramidas could not nominate the likely point of collision ;

(i)         noted the potential for west-bound drivers faced with a crest and right hand curve to drive to the left of the marked lane and possibly stray.

98        Mr Keramidas was cross-examined at length at which time he confirmed that based on the materials received, his site inspection and the site markings left by the police, the conclusions reached by him in his report amounted to a “best fit” scenario. He also said that ultimately he preferred what he called “the physics” to the witness evidence because in this case he found sufficient physical evidence to generate a “best fit” scenario, which allowed him to assess whether this physical evidence matched the witness accounts.

99        Mr Keramidas nevertheless acknowledged that he had treated the statement of the witness, Mr Gonzales (which did not form part of the evidence before the court at hearing), as corroborative of his conclusion that the likely approach path of the Cooper’s vehicle was that it had entered (or at least partially entered) the left turn lane immediately prior to the collision, although in re-examination he claimed that the absence of the witness evidence would not alter his opinion.

100       In respect to a number of issues raised in cross examination, Mr Keramidas

also:

(a)	accepted that, as a person who habitually used the intersection, the defendant ought to have known that he did not have an unobscured view;
(b)	(on the assumption that the distance travelled by the defendant was four and a half metres (rather than one metre), at normal acceleration) calculated a velocity of 3.64 metres per second, that is, about 13 kilometres per hour which during re-examination Mr Keramidas estimated would take about two and a half to three seconds;
(c)	confirmed his measurement of four metres from the stop line to the commencement of Lane 2 which measured 3.5 metres;
(d)	accepted that if the collision occurred in Lane 2 and the defendant’s vehicle started from the stop line, it travelled about four and a half metres into the intersection (that is about one car’s length);
(e)	(despite having used an estimated velocity of about 10 kilometres per hour for the defendant’s vehicle and about 80 kilometres per hour for the Cooper’s vehicle) accepted that 15 kilometres per hour was not an unreasonable speed to attribute to the defendant’s vehicle;
(f)	said that he would not expect “an ordinary [west-bound] driver to be specifically looking” in the direction of the intersection obscured by vehicles turning left, rather he would expect the driver to be scanning the road ahead;
(g)	(after being taken to the police photographs (Exhibit “P15”)) acknowledged that the yellow kerb markings on the median strip, on which he relied, may be markings for a different collision. This concession is one of a number of factors which tend to undermine the reliability of the expert’s “best fit” scenario;
(h)	(from the photographs) identified the point at which the contact damage (but not necessarily the first point of impact) started on the defendant’s vehicle as being just left of the number plate extending across to the front passenger side corner;
(i)	(from the photographs) identified the first point of impact on the Cooper’s vehicle as the front corner on the passenger side;
(j)	said that due to the damage on the vehicles the point of impact between the vehicles was probably not too far off being at right angles and that the defendant’s vehicle was probably on a turn;
(k)	explained that for any driver response to have had an impact on the trajectory of the Cooper’s vehicle it had to occur either before the collision and to have continued, or if there was a response after the collision, it would take effect only after the vehicle entered the centre median. Therefore, Dr Cooper could not have altered the trajectory of his vehicle in a half second;
(l)	accepted that if as recalled by Mr Kornacki the front right tyre of the Cooper’s vehicle was deflated (that is from the impact with the median strip) this would have reduced Dr Cooper’s capacity to brake the vehicle by 25-30 per cent. On this issue I have also taken into account the damage to the front left wheel rim and tyre noted by Senior Sergeant McWhinnie, which is consistent with a finding that this tyre was probably also deflated. The evidence of the tyre damage notwithstanding, during re-examination Mr Keramidas explained that based on an expected driver perception reaction time of 1.5 seconds (and a 3.4 second estimate of the time taken to travel 75 metres to the point of the second collision) he would expect a reasonable driver to have taken some evasive action;
(m)	(if there was evidence of two vehicles in the left turning lane at the point of impact, in relation to Mr Keramidas’ collision diagram which represented his view of the probable pre-impact trajectory) accepted that the diagram needed to be adjusted to demonstrate a shallower angle of departure by the Cooper’s vehicle from the left turning lane, that is, somewhere between the first and second of the three turning arrows. This is what the plaintiff’s counsel subsequently called Mr Keramidas’ “revised version”; and
(n)	acknowledged that faced with an emergency drivers respond differently.

101       Apart from the technical aspects of his evidence, in cross-examination Mr Keramidas –

(i) was challenged, I think with some justification, for failing in his report to provide any detailed explanation of the potential for the defendant’s vision of approaching west-bound traffic to be obscured. This is a criticism Mr Keramidas appeared to accept when he said “I certainly

haven’t spelt out perhaps as I should have the extent of potential view

restriction”;

(ii)        agreed that his report would have been more balanced had he discussed the possibility of any contribution to the collision by the defendant proceeding into the intersection when faced with a “blind spot”.

102       In my view, rather than reflecting any conscious bias, some of the failings in the expert’s report are probably attributable to the omission of information that would have allowed Mr Keramidas to appreciate the significance of, for instance, the defendant’s allegation that the Coopers’ vehicle was the last of a number of vehicles in the left turning lane with their indicators operating.

103       Nevertheless, allowing for the deficiencies identified, Mr Keramidas’ report (including his revised version) proved to be of less assistance than it might otherwise have been.

Findings

104       The defendant has conceded negligence and that this was a cause of the injury arising out of the two collisions on 24 March 2006. In assessing any contribution to the collisions by Dr Cooper I have made the following findings of fact.

105       As to the location of the first collision, Dr Cooper said that it occurred when his vehicle was travelling in Lane 3, that is the lane closest to the median strip, whereas the defendant asserted that it occurred after his utility had moved about a metre into the void and after the Coopers’ vehicle had entered (as the fourth vehicle) the left turning lane, Lane 1, with its left hand indicator operating. According to the defendant instead of turning left the Cooper’s vehicle continued at speed in the left hand turning lane on a path through the void.

106       On the evidence I was not satisfied that the first collision occurred in the void. Indeed, depending on the evidence as to the course taken by the Cooper’s vehicle in the period before it entered the intersection, the most likely location was in either Lane 2 or 3.

107       The uncontested evidence of the Coopers is that their destination was Katoomba. There was no reason for the Cooper’s vehicle to depart with its left hand indicator operating from the lanes designated for west-bound traffic to Katoomba and to make a left hand turn. Moreover, whilst Dr Cooper was not familiar with the highway, or the intersection, his account of having a clear recollection of travelling in the lane nearest the median strip is consistent with the ‘X’ marked on the sketch (and probably placed there by Senior Sergeant McWhinnie at Dr Cooper’s direction) and as limited as it was, Dr Cooper’s evidence did not appear to be based on any attempt by him to reconstruct the circumstances of the collision.

108       I was left with some considerable reservations about the reliability and consistency of the defendant’s evidence which suggested a significant degree of reconstruction in circumstances where he failed to give way to a vehicle in, entering or approaching the intersection.

109       On the evidence I was not satisfied that the Cooper’s vehicle had ever entered Lane 1 with or without its left hand indicator operating. This notwithstanding, I accept that prior to the first collision, as he waited to turn, the defendant may have seen up to four vehicles entering the left turning lane. In my view, the presence of even three vehicles in Lane 1, all of which must have reduced their speed to make a safe turn, render it unlikely that the Coopers’ vehicle, travelling at speed, entered Lane 1 and/or remained in this lane before the point of impact.

110       Allowing for the evidence of the likely speed of the Cooper’s vehicle and following cross-examination of the expert, I was not satisfied of the soundness of the “best fit” scenario, postulating as it did that the Cooper’s vehicle travelled in, or remained in, the left turning lane (that is, it had strayed) in circumstances which attract liability on the part of Dr Cooper.

111       In reaching this conclusion I have also considered the further allegation that Dr Cooper breached Regulation 92 of the now repealed Australian Road Regulations. From my understanding of the evidence, and on any fair interpretation of this Regulation, I was not satisfied that it was breached by Dr Cooper. This was so notwithstanding Mr Keramidas’ revised version of the circumstances of the first collision, that is to say his opinion that if there were vehicles already in Lane 1 the Cooper’s vehicle strayed wholly or partly into the left hand turning lane before correcting and leaving the lane somewhere between the first and second turning arrows.

112       In my view, the likely location of the Cooper’s vehicle as it travelled toward the intersection was either in Lane 3, or if it strayed at all (something of which I was not persuaded) it was partially in Lane 2. This is consistent with Mr Hughes’ evidence and to some extent allows for Mr Gonzales’ very uncertain recollection of seeing the sedan travelling to the left of its lane and in Lane 2.

113       Given his familiarity with the intersection, the defendant’s failure to appreciate or acknowledge that his view of the west-bound traffic was obscured by vehicles moving through the left turning lane was surprising and lends weight to the plaintiff’s submission that the defendant should bear primary responsibility for the collision that ensued.

114       In these circumstances I was satisfied that as pleaded the plaintiff has made out each of the particulars of negligence (that is paragraphs (a) to (g) inclusive).

115       As to the allegations of negligence made against Dr Cooper (that is paragraphs (a) to (c) and (e) to (g) inclusive) the defendant has not met his burden of proof and as to the further allegations of negligence which appear to relate to Dr Cooper’s management and control of his vehicle following the first collision (that is paragraphs (i) to (k) inclusive) I am also not satisfied that these matters have been made out.

116       At hearing, considerable time was devoted to the issue of the reasonableness of the response of Dr Cooper following the first collision and thereby the extent to which his acts or omissions contributed to the second collision and the injury suffered. I was taken to a number of authorities which relevantly discuss how an emergency may impact on one’s behaviour. In this case the emergency created by the defendant’s negligence is relevant to determining what standard of care Dr Cooper was required to meet having been placed in a position where his vehicle, travelling at speed and with at least one and possibly two deflated front tyres, had crossed the median strip and into the path of oncoming traffic.

117       Based on the expert witness evidence there was no time for driver response before the Cooper’s vehicle hit the kerb of the median strip and from Mr Hughes’ account up to three vehicles swerved to avoid the Cooper’s vehicle, the likely trajectory of which (that is allowing for the markings on the road) was at first an arc before ending up in the lane nearest the median strip. This is where, having reduced the speed of his vehicle from 90 kilometres per hour, Mr Kornacki said his vehicle collided head on with the Cooper’s vehicle.

118       There is no evidence of the brakes having been applied to the Cooper’s vehicle following the first collision and there are various estimates of the time over which the Cooper’s vehicle took to the point of the second impact – that is anything between a split second and 15 seconds (including the expert’s estimate apparently based on there being no deceleration of the Coopers’ vehicle over 75 metres). Nevertheless, allowing for the circumstances in which he found himself and factors such as surprise, shock and the presence of east-bound traffic travelling at high speed, in both lanes, and bearing down on the Cooper’s vehicle, I have not assessed Dr Cooper’s response (or lack of response) to the emergency created by the defendant’s negligence as falling below the standard of reasonable care, although I accept that it is unlikely that any response included applying the brakes of his vehicle.

119       It follows from these findings that I have acceded to the plaintiff’s submission that the defendant carries 100 per cent of the liability for the injuries suffered and in accordance with the statutory formula the degree to which he is required to indemnify the Transport Accident Commission is 100 per cent.

The orders sought and made

120       In accordance with the submissions made I make the following orders:

(a)	that the defendant pay the plaintiff compensation paid to date in the sum of $209,624.97;
(b)	interest;
(c)	and I declare that subject to the operation of sub-s.104(2) of the Transport Accident Act 1986 the defendant is liable to indemnify as to 100 per cent of future payments of compensation paid according to the Act;

and I further order

(d) that the defendant pay the plaintiff’s costs of this proceeding to be taxed in default of agreement on scale D of the County Court Scale of Costs.