Transport Accident Commission v Farrugia
[2020] VCC 859
•19 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-18-01422
| TRANSPORT ACCIDENT COMMISSION | Plaintiff |
| v | |
| ANTHONY JOSEPH FARRUGIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 and 26 May 2020 | |
DATE OF JUDGMENT: | 19 June 2020 | |
CASE MAY BE CITED AS: | Transport Accident Commission v Farrugia | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 859 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Recovery action by the Transport Accident Commission arising from a transport accident to a worker under the Accident Compensation Act 1985
Legislation Cited: Transport Accident Act 1986; Accident Compensation Act 1985, s138
Judgment: The defendant is 70 per cent responsible for the transport accident causing injury to Asher Sandifer which occurred on 1 April 2014.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Walsh | Solicitor to the Transport Accident Commission |
| For the Defendant | Mr P V Bourke | Moray & Agnew Lawyers |
HIS HONOUR:
1 On April Fool’s Day 2014, Ms Asher Sandifer attended her work as an administrative officer with the Alannah & Madeline Foundation in South Melbourne in the State of Victoria. The Alannah & Madeline Foundation had its offices directly above the South Melbourne branch of the National Australia Bank at 256 Clarendon Street, South Melbourne. Ms Sandifer’s place of employment was directly opposite the Coles Supermarket on Clarendon Street, South Melbourne. Clarendon Street runs in a north-south direction through South Melbourne. The intersection to the north of the National Australia Bank is Coventry Street, which runs in an east-west direction. To the south of the National Australia Bank, the intersecting street is Dorcas Street, which runs in an east-west direction.
2 Ms Sandifer, during her luncheon break on 1 April 2014, decided to go for a walk to get some “fresh air”. Ms Sandifer initially left her place of employment and travelled in a southerly direction on the western side of Clarendon Street towards the intersection of Dorcas Street. When she arrived at Dorcas Street, she turned to the east and walked across the intersection. Once on the eastern side of Clarendon Street, she turned north to walk back to Coventry Street. When she was outside the Coles Supermarket, she observed that there was a vacant carpark on the eastern side of Clarendon Street. She decided to cross Clarendon Street in order to return to her place of employment at that point. While she was standing in the vacant car space on the eastern side of Clarendon Street, a vehicle driven by Anthony Farrugia reversed into her and struck her. As a result of the collision between Ms Sandifer and Mr Farrugia’s vehicle, Ms Sandifer was injured. Mr Farrugia was driving a motor vehicle registered in the State of New South Wales.
3 The legislative regime in Victoria provides that the Transport Accident Commission, the plaintiff in these proceedings, is liable for payments of compensation and damages to, in this case, Ms Asher Sandifer. The Transport Accident Commission has made payments of compensation and damages to Ms Sandifer as a result of the transport accident which occurred on 1 April 2014.
4 The proceeding is a recovery action by the Transport Accident Commission from Mr Anthony Farrugia. The legislative formula for the recovery proceeding is set out at s138 of the Accident Compensation Act 1985. The parties have agreed that the relevant monetary figure applicable to this claim is $750,000. The single issue to be determined in this case is the extent, expressed as a percentage, whereby the defendant’s acts, default or negligence, caused or contributed to Ms Sandifer’s injuries and damage. Counsel for the parties referred to this as the determination of “Factor X” under the formula in s138 of the Accident Compensation Act. In s138, “X” is defined as follows:
“X is the extent, expressed as a percentage, whereby the third party’s [Mr Farrugia] act, default or negligence caused or contributed to the injury or death.”
The evidence in this case
5 Evidence was given by Ms Asher Sandifer and Mr Anthony Farrugia. The plaintiff also tendered the following exhibits:
(a) Exhibit “A” – affidavit of Stewart Miles, sworn 20 February 2020;
(b) Exhibit “B” – Interrogatory 13 and its Answer;
(c) Exhibit “C” – Interrogatory 4 and its Answer;
(d) Exhibit “D” – Interrogatory 7 and 8 and their Answers;
(e) Exhibit “E” – Interrogatory 9 and its Answer;
(f) Exhibit “F” – Interrogatory 1 and its Answer;
(g) Exhibit “G” – Interrogatories 1, 2 and 3, and their Answers.
6 The defendant tendered the following interrogatories and answers:
(a) Exhibit 1 – Interrogatory 11 and its Answer;
(b) Exhibit 2 – Interrogatory 14 and its Answer;
(c) Exhibit 3 – Incident Report printed 12 November 2018;
(d) Exhibit 4 – Interrogatory 7 and its Answer;
(e) Exhibit 5 – Interrogatory 8 and its Answer.
Ms Asher Sandifer
7 Ms Sandifer gave evidence that she attended her place of employment on 1 April 2014. In the course of her luncheon break, she decided she would go for a walk to get some fresh air.[1] Ms Sandifer stated that she had been in her employment with the Alannah & Madeline Foundation for eighteen months and was very familiar with the Clarendon Street area. Her place of employment was opposite the Coles Supermarket.
[1]Transcript (“T”) 12
8 Ms Sandifer stated that her intention was to walk around the block to get some fresh air when she left the work premises during her luncheon break.[2] Ms Sandifer stated that she walked south along Clarendon Street towards Dorcas Street and then crossed at the Dorcas Street intersection to the eastern side of Clarendon Street. She then walked in a northerly direction and she decided to cross Clarendon Street, rather than go up to the Coventry Street intersection. She attempted to cross Clarendon Street opposite the Coles Supermarket.
[2]T14
9 Ms Sandifer stated that she observed a vacant carparking space on the eastern side of Clarendon Street, opposite the Coles Supermarket. She stepped onto the road and took approximately two steps and stopped. When she stopped, she was still in the carparking space.[3] She stated that while she was standing there, she observed a vehicle drive past her, travelling in a southerly direction, towards Albert Park. Ms Sandifer was unable to recall at what speed the car had passed her, or whether it had its indicators on. She described it as an “orange-y” smaller car.[4] Ms Sandifer stated that she did not see Mr Farrugia’s vehicle reversing into her and did not see it until it had struck her. She stated that she was in a great deal of pain and only spoke to the ambulance officers after the accident. Ms Sandifer stated that she never spoke to the police at the scene of the accident.[5] Ms Sandifer’s evidence was that she fell inside the vacant car space after the collision.[6]
[3]T16
[4]T18-19
[5]T23
[6]T24
10 In cross-examination, Ms Sandifer confirmed her Answer in Interrogatory 11, stating that she first saw the vehicle when it hit her.
11 In cross-examination, Ms Sandifer was asked the following question:
Q:“And I’m suggesting to you that you did not look to your left at all?---
A:Once this, the cars have gone in front of me, then I didn’t look at the left, where this guy is coming, because the car is going in front of me. The car from my right, as is going towards Albert Park – Albert Park. Once it’s gone past me, that’s all it mattered to me, because once it’s gone, it’s gone. I’m just trying to concentrated if any cars are coming from the city side. But once it goes, then I would have crossed the road.”[7]
(sic)
[7]T28, L27 – T28, L4
12 It was later put to Ms Sandifer that she kept walking once she stepped into the vacant car space. Ms Sandifer was adamant that she had stopped. She knew that she was standing in the car space when she was hit.[8]
[8]T33
13 Ms Sandifer conceded that she did not look, as she described it, “sideways”, after she had stood into the vacant car space. Ms Sandifer gave the following evidence:
Q:“Mrs Sandifer, and while you were standing in the spot, you did not look to your left at all, you kept looking to your right?---
A:I kept looking at the right and I would have looked not directly on the – my left side but I would have looked beyond me on the left side to cars – if there were any cars coming from Albert Park going towards the city. I would have – you know what I mean? I would have – I would have looked sideways, to look – I would have gone look over to look at where the other car was coming, if there was any cars coming from Albert Park to the city. But I was looking sideways with this car was on my sideways, I wasn’t looking sideways to see if there’s any cars coming on my left side as it is – maybe I was standing there looking at – if there’s any other cars coming beyond from the other side towards the city.
Q:Mrs Sandifer, I’m suggesting to you that what you’ve just said is you just speculating about what you may have done. But what you actually did was just keep looking to the right and you did not look in any other direction?---
A:Not on the other sideways, no I didn’t.”[9]
(sic)
[9]T34, L8-27
14 In the course of her evidence, Ms Sandifer maintained that she did not just walk off the pavement and start walking across the road. She stated that she was standing on the road when she was hit by Mr Farrugia’s vehicle.
15 In re-examination, Ms Sandifer confirmed that she did not see Mr Farrugia’s vehicle travelling in a reverse direction into the carpark, where she was standing.[10]
[10]T47
Mr Anthony Farrugia
16 Mr Farrugia gave evidence that he had been travelling in the city to attend to one of his restaurants. He had then decided that on his way home to Bentleigh, he would stop at the Coles Supermarket in Clarendon Street, South Melbourne. He was driving a white Toyota Corolla. Mr Farrugia stated that as he travelled down Clarendon Street, South Melbourne, he was travelling at approximately 40 kilometres per hour, but after he crossed the intersection of Clarendon Street, he was travelling at 10 to 15 kilometres per hour. He stated that he observed a carpark on his left – which is the eastern side of Clarendon Street – was vacant. He gave the following evidence:
Q:“And what was the – what type of car parking spot did you see?---
A:It was a space for one car, (indistinct) parking.
Q: With cars on either side of it?---
A: Cars on either side, correct.
Q:What, if any, indication did you make in relation to your intended movements?---
A:(Indistinct) I put my left indicator on to let everyone know, like other cars know that I’m taking that car spot. I’ve stopped. I’ve waited till it was clear. I’ve checked to the right of me and I’ve checked in my mirrors and I checked to the left of me and I’ve checked behind to make sure the spot was clear, and when it was free from cars coming onto my right and there was nothing – no obstruction, I started to reverse my car into the spot.”[11]
[11]T58, L19-31
17 Mr Farrugia stated that when he first observed the car space, it was clear of obstruction.[12] He stated that he waited for the cars passing him, before he then reversed into the carpark. He stated that he basically turned his head to look to make sure it was clear and, once he knew it was, then started to reverse into the carpark. He described his manoeuvre as slow, and he was cautious.
[12]T59
18 Mr Farrugia stated, as follows:
Q:“And which way were you looking as you reversed into the spot?---
A:I was looking behind me and I was looking to the side through my mirrors.
Q:What did you see as you reversed?---
A:I didn’t see anything to the – I didn’t see anything. There was a car behind me which was obviously there, and there (indistinct) and I was cautious about going into a parallel park.
Q:What were your observations of the car parking spot itself as you reversed?---
A:It was free of any – of anything, there was nothing there.”[13]
[13]T59, L22-31
19 Mr Farrugia stated that he was three-quarters of the way into the carpark when he felt a bump. He applied the brakes immediately.[14] When he alighted from the car and went to the back of the car and saw Ms Sandifer, he stated that he went into shock.[15]
[14]T60
[15]T60
20 Ms Farrugia stated that he believed Ms Sandifer walked out behind his car as he was already in the parking space, and she walked out, and that is when the accident occurred.[16]
[16]T60
21 In cross-examination, Mr Farrugia agreed that there was a blind spot in his vehicle. He stated that he was turning his head when he was reversing in and would have seen if anyone was standing there.[17] Mr Farrugia agreed that he did not see Ms Sandifer prior to the impact with her.[18] Mr Farrugia stated that he had put the left-hand indicator on his vehicle prior to stopping his vehicle while still parallel in Clarendon Street.[19] He stated that he was stationary for thirty seconds while he was waiting, before making his reversing manoeuvre into the carpark.[20]
[17]T67
[18]T69
[19]T70
[20]T71
22 Mr Farrugia was cross-examined about an Answer he gave in Interrogatory 8. The following evidence was given by him:
Q:“And in this answer, you said you were – during that procedure, you were looking between the left wing mirror and the rear view mirror. Do you see that?---
A:Yes, I see that.
Q:In that answer, Mr Farrugia, you don’t mention that you were doing a head check to your left or to your right when you were in motion reversing the vehicle, do you?---
A:No, I don’t say that in there.
Q:And is that what happened? You didn’t do a head check when you were reversing, did you?---
A:I did do a head check when I was reversing.
Q: You did do a head check?---
A: Definitely.
Q:Well, did you tell that to Mr Martin when you swore these interrogatories?---
A: Well, I must have left that out, I’m sorry.
Q:And which check did you do, to the right or the left or can you say?---
A:I did the same checks as I always do so.”[21]
[21]T76, 1-16
23 Mr Farrugia confirmed in cross-examination that he went into shock and that he was crying immediately after the accident and he was scared about what had happened.[22] He stated in cross-examination, in respect of him previously stating Ms Sandifer was standing in the carpark, as follows:
“In my term of events, I’ve reversed in and she’s walked behind me. That’s what I believe has happened.”[23]
[22]T78
[23]T83, L8-10
24 In re-examination, Mr Bourke, counsel for Mr Farrugia, asked the following questions:
Q:“And what is your recollection about while you were reversing the vehicle, whether you performed a head check over your left shoulder?---
A:Yes, I - I would’ve looked from the left of me, I looked in my rear view, I looked in all my mirrors and I looked behind me and I checked to make sure there’s no obstruction, that’s what - that’s what I do.
Q:And what is your recollection as to while you were reversing the vehicle, whether you looked over your right shoulder?---
A:Beg your pardon?
Q:What is your recollection while you were actually in the process of reversing your vehicle, whether you looked over your right shoulder?---
A:I would - I would have looked to make sure it would’ve been clear of any cars (indistinct words).”[24]
[24]T89, L5-18
25 That was the only evidence given in the trial from the witness box. The other evidence in the case was Answers to Interrogatories served by both parties in the case. The essence of the Answers in the Interrogatories was the same as the evidence given by the witnesses during the course of their evidence.
26 Mr Stewart Miles, in his affidavit sworn 20 February 2020, stated that he had no memory of the circumstances of the collision in this case. Mr Miles was noted as a witness on the Police Incident Form.
Analysis
27 I accept that both Ms Sandifer and Mr Farrugia were doing the best they could to give evidence as accurately as they could as to what occurred on April Fool’s Day 2014.
28 I accept that Ms Sandifer had decided to cross Clarendon Street at a point directly opposite her place of employment. I accept her evidence, that in the process of her doing so, she stopped within the vacant car space to check for cars, first coming from her right, travelling in a southerly direction, and also generally looking to her left for cars travelling in a northerly direction along Clarendon Street. Ms Sandifer did not see the vehicle driven by Mr Farrugia stop in a parallel position, making ready for a reversing action into the carpark in which she was standing. Ms Sandifer was still standing in the car space, approximately one metre from the vehicle to her right, which was parked, when she was struck by Mr Farrugia’s reversing vehicle.
29 Mr Farrugia, while doing the best he could to recall what had occurred on the day of the accident said, in the course of his evidence, what he believed to be the facts leading up to the accident. I find that Ms Sandifer was standing in the car space for him to see her. For whatever reason, he failed to see her while he was executing his reversing manoeuvre to complete a parallel park into the single vacant parking space. I accept that he made a continuous reverse-parking manoeuvre until he struck Ms Sandifer.
30 Mr Farrugia, on a number of occasions, stated what he believed had happened on this day. The evidence from Mr Farrugia, while honestly given, was a reconstruction of what he thought must have occurred on the day in question. I prefer the evidence of Ms Sandifer, where she has clearly stated the method she was taking to cross the road on Clarendon Street. She was familiar with the area and had been looking to her right and, in general terms, to her left. For some reason, she failed to see Mr Farrugia’s vehicle until the time it struck her. In her words, she stated she did not look “sideways”.
31 I find that in respect of liability for the accident, both Ms Sandifer and Mr Farrugia are negligent in this case. In the case of Ms Sandifer, she has failed to see the vehicle driven by Mr Farrugia stop, or, more particularly, make his manoeuvre into the car space where she was standing. In the case of Mr Farrugia, he failed to see Ms Sandifer at all until the point of impact and that he was reversing his vehicle into a car space where a person was standing. The majority of the liability in this case is upon Mr Farrugia.
Conclusion
32 I find that, taking into account all the factors surrounding this unfortunate accident, Mr Farrugia is 70 per cent liable for the accident. I order that Factor X under s138 is 70 per cent.
33 I allow the parties to draft the resulting consent orders, including any orders for costs in this proceeding. If those matters cannot be finalised, then the case is to be relisted before me for further argument and finalisation.
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