Westerway v Rex

[2007] NSWDC 136

CITATION:	Westerway v Rex [2007] NSWDC 136 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	4 June 2007, 5 June 2007, 6 June 2007 and 7 June 2007
JUDGMENT DATE:	4 July 2007
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	1) There will be a verdict and judgment for the plaintiff against the defendant in the sum of $1,333,333.34.; 2) Order the defendant pay the plaintiff’s costs on a party/party basis up to 29 May 2007. Defendant to pay the plaintiff’s costs on an indemnity basis on and from 30 May 2007.; 3) Subject to payment to the plaintiff by the defendant of $333,333.34 within 21 days of today execution of the remainder of the judgment be stayed pending resolution of any appeal.; 4) Exhibits be retained with the file for 28 days.
CATCHWORDS:	NEGLIGENCE – Motor vehicle accident – Collision at intersection controlled by traffic lights – Motor car moving to centre of intersection to turn right – Motor car moving across intersection as lights turned yellow and traffic slowed and stopped – Duty of care to be observed – Duty to keep proper lookout and give way to oncoming traffic – Motorcycle coming through yellow light – Duty to stop on yellow light if can do so safely – Failure of car driver to see motorcycle – Apportionment of liability – Negligence of car driver – Contributory negligence of motorcyclist.
LEGISLATION CITED:	Australian Road Rules, rules 57, 59, 61 and 62 Motor Accidents Compensation Act 1999, s 138(3) Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999, reg 6 Road Transport (Safety and Traffic Management) Act 1999
CASES CITED:	Arthur v Cooke (1988) 6 MVR 466 Joslyn v Berryman (2003) 214 CLR 552 Knight v Maclean [2002] NSWCA 314 Pennington v Norris (1956) 96 CLR 10 Schmalkuche v Williams (1987) 6 MVR 274 Shepherd v Zilm (1976) 14 SASR 257
PARTIES:	Gary Peter Westerway - plaintiff Elizabeth Anne Rex - defendant
FILE NUMBER(S):	Matter No. 2847 of 2004
COUNSEL:	Mr P J Doherty SC with Mr C I Twomey for the plaintiff Mr R R Bartlett SC with Ms C Allan for the defendant
SOLICITORS:	Somerville & Co for the plaintiff Ferguson Lawyers for the defendant

JUDGMENT

1 A collision at an intersection controlled by traffic lights on Forest Way at Belrose between a motor car and a motorcycle resulted in very severe multiple injuries to the motorcyclist. The defendant was travelling in her motor car in a northerly direction along Forest Way and at the intersection proceeded to turn right into Morgan Road; the light was green but she stopped in the intersection to give way to the oncoming traffic in Forest Way travelling south. On the light changing to yellow, the defendant moved to complete the turn after noticing oncoming traffic begin to slow and stop. She did not see the plaintiff’s motorcycle enter the intersection until the impact as he endeavoured to continue in Forest Way in a southerly direction. There was a real issue in the proceedings as to whether the lights were still yellow when the plaintiff entered the intersection or had changed to red so that he was to trying to “beat the lights”. The plaintiff had no recollection of the accident, or indeed of events two days beforehand, and only remembered becoming conscious in Royal North Shore Hospital.

2 Initially in these proceedings the parties were apart on all issues of liability and the assessment of any damages which may be due to the plaintiff. However, at the completion of the plaintiff’s evidence counsel advised it had been agreed that the plaintiff’s damages should be quantified at $2.0 million.

3 Thus, the primary contest concerned liability of the defendant in negligence for the collision and this was vigorously denied. Her senior counsel submitted that the factual circumstances did not disclose any failure on her part to take reasonable care in that it was not open to find a failure to keep a proper lookout or anything wrongful in the manner in which she made the right-hand turn. Reliance was placed on the reasoning of Heydon JA (as he then was) in Knight v Maclean [2002] NSWCA 314 in [69] for the proposition that the plaintiff bears the burden to prove the defendant failed to keep a proper lookout and that if a proper lookout had been kept then the plaintiff would have been seen in sufficient time to avoid the collision. As Heydon JA said (in para [66]):

… he was entitled to drive with his eyes ahead of him until he noticed something to the left which called for greater concentration on the left. There was nothing on the left calling for greater concentration until the sudden emergence of the plaintiff, and that was too late to give the defendant any opportunity to avoid the collision …


4 There mere fact of a collision, so senior counsel put, was not thereby discharged by the plaintiff who had to establish also circumstances which would put the defendant on notice of a need to adjust her driving as to any further likely danger – the evidence here did not suggest to the defendant the likelihood of any other vehicle entering the intersection.

5 As to contributory negligence, the defendant’s senior counsel referred to s 138(3) of the Motor Accidents Compensation Act 1999 that “the damages recoverable … are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.” Here, it was said the plaintiff proceeded into the intersection contrary to the traffic control signs, whether the lights were yellow or red, in contravention of either rule 57 (yellow traffic light) or rule 59 (red traffic light) in Pt 6 of the Australian Road Rules made operative by reg 6 of the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 made under the Road Transport (Safety and Traffic Management) Act 1999. The plaintiff was said to have attempted to “beat the lights” in a cluttered visual environment where he did not have adequate or proper vision of all of the intersection, including the defendant’s stationary motor car, or else he did not look. Being the person primarily in control of the situation, the plaintiff should have realised, as would a reasonably prudent motorcycle rider, that the other vehicles travelling south on Forest Way by slowing to a stop at the lights were complying with the Australian Road Rules and that would have been apparent to the defendant waiting in the intersection to make a right-hand turn. In the circumstances, senior counsel submitted that the plaintiff’s “acts were reckless and foolhardy in the extreme and such finding of contributory negligence should be in the vicinity of 80%”.

6 Senior counsel for the plaintiff based his submissions on what was said to be the heavy onus on the defendant under rule 62 of the Australian Road Rules which required her to give way in making the right-hand turn to ongoing traffic – senior counsel indeed emphasised what he described as the “high common law duty to take reasonable care in turning across ongoing traffic, particularly in an 80 kmh zone where traffic may be expected to be going faster than in a 60 kmh zone.” Importantly, only one witness said the lights were red when the plaintiff entered the intersection whereas that was never suggested by the defendant and two other witnesses said the lights were yellow as he did so. Senior counsel relied on the following passage from the judgment of Samuels JA, with whom Priestley JA agreed, in Arthur v Cooke (1988) 6 MVR 466 at 468 as relevantly describing the legal duty on the defendant here:

… the evidence is that all the northbound lanes were full and that the cars in them had either stopped or were about to stop. The plaintiff came between two lines of vehicles, it seems, or between a line of vehicles and the western median strip. However, I would have thought that a careful driver ought to anticipate the possibility of motorcycles navigating in the way which their size and manoeuvrability encourages. It is common experience to see motorcycles being ridden between lanes of traffic. Everyone knows that they are capable of rapid degrees of acceleration, and their common reputation, whether justified or not, is that they tend to be ridden at high speeds. A prudent driver should have these possibilities in mind. I think also that any driver who endeavours to make a right-hand turn across traffic on an amber traffic signal is embarking upon a manoeuvre which involves a significant degree of hazard. The amber signal is designed for stopping, not going, unless the proviso in the regulations can be satisfied.


7 In the circumstances where the defendant admittedly did not see the plaintiff’s motorcycle before the impact she had failed to keep a proper lookout and was negligent in turning right from a stationary position in the intersection after the lights changed from green to yellow. Therefore, said senior counsel, she breached her duty of care to the plaintiff.

8 A finding of contributory negligence was resisted by the plaintiff’s senior counsel, given that his actions were in a situation where he may reasonably have expected any traffic turning right would give way – as it happened, he saw the defendant’s car turning right, swerved to avoid it, but it was all too late. The description of the plaintiff’s conduct as “foolish” was inapt in the circumstances as the only thing his senior counsel said he did not do was to slow down and attempt to stop when the lights turned yellow. With that as the only criticism, it was likely the plaintiff had no contributory negligence to what occurred. In any event, if some contributory negligence be found then his responsibility, so the submission went, compared to the defendant would be minimal.

9 I should mention that it was common ground that although the intersection was controlled by traffic lights and had provision for right-hand turning lanes for traffic travelling in a northerly direction (right into Morgan Road as for the defendant) and in a southerly direction (right into Wyatt Avenue), there were no directional traffic arrows fitted or at least they were not activated. It was also common ground that the yellow light was illuminated at the intersection for 5 seconds between the end of the green-light phase and the start of the red-light phase. It was an 80 kmh speed zone. From those agreed facts it may be calculated mathematically that a motor vehicle travelling at 80 kmh covers a distance of 22.2 metres per second; so, for a 5 second-duration of the yellow light a vehicle travelling at 80 kmh would cover 111 metres.

10 The plaintiff, Gary Peter Westerway, was born on 14 November 1958 so that at the date of the accident he was 43 years of age and 48 years at the date of trial. I do not propose, in view of the agreement as to the quantum of any damages, to trace his background and employment history in any detail. Suffice it to say that he joined the New South Wales Police Service as a trainee on 25 September 1978 and as a Sergeant (including periods as an Acting Inspector) he retired “hurt on duty” on 2 April 2004 following an incident on 15 May 2001 causing psychological anxiety and stress. During his service he was awarded the Commissioner’s Commendation for Bravery on 31 May 1990. He was appointed as a police prosecutor on 5 July 1993 and was seconded to the New South Wales State Coroner’s Court on 7 March 1994 to assist in coronial inquiries. From 1997 to 1999 he studied law at the University of New England and graduated with a Bachelor of Laws on 6 April 2000 with the intention of practising law; application was made on 27 August 2002 to the College of Law to undertake from 14 October 2002 the course in legal practice. However, the subject accident on 9 September 2002 intervened and the plaintiff with the injuries sustained was an inpatient at Royal North Shore Hospital from that date until 4 November 2002 (including one month in intensive care) and an inpatient at the Royal Rehabilitation Centre Sydney until 17 April 2003. Continuing treatment is received. The injuries from the accident were quite extensive and of a serious nature such that the plaintiff is unemployable.

11 It seems the plaintiff had an abiding interest in motorcycles. He obtained a licence at age 17 years and rode at least every second day and to work; his driving record in that respect was excellent and accidents had been avoided. With approval from the Police Service, the plaintiff conducted from the mid-1990s motorcycle tours around Sydney and along the coast through a business called “Classic Action Tours” – the preferred make of motorcycle was a Harley Davidson. At the time of the subject accident he was riding a Harley Davidson Road King, a very powerful machine used for long distance touring. He was familiar with the intersection concerned, having ridden through it many times as he lived in the area at Wahroonga, and indeed had stopped on red lights at the intersection before. As a police officer, the plaintiff had undertaken highway patrol training, driving techniques and advanced driving courses; he had seen service in the Target Action Group and the Tactical Response Group. In all of his years doing police duty, the plaintiff had received only one caution by a superior and that involved the police car he was driving clipping another car as it pursued with flashing lights and siren a fast-moving vehicle suspected of being stolen. Ironically, the plaintiff had not ridden motorcycles as a police officer because his wife declined consent, which apparently was a prerequisite, for safety reasons.

12 The defendant, Elizabeth Anne Rex, was a lady of 44 years of age at the date of the trial. Nearly five years earlier on 9 September 2002 at about 9:20 am she was driving her then four-year old son to pre-school at Belrose. The family lived nearby at Beacon Hill and she took her son to pre-school three days each week travelling her usual route north along Forest Way – the pre-school was on the corner of Forest Way and Morgan Road. Her vehicle was a Holden Commodore station wagon. The day in question was fine and clear. She described, in a non-contentious way, that at the time the intersection of Forest Way and Morgan Road was controlled by traffic lights and travelling north, as she was, there were two lanes for traffic continuing north and a right-hand turn lane for traffic going into Morgan Road. She said she moved into the right-hand turn lane when the traffic lights facing her were green and what then occurred was stated in her evidence as follows:

I went into the right-hand turn lane and proceeded up – I think it’s called the stop-line, and I waited on a green light for all the oncoming traffic … Coming on south along Forest Way … I waited for the traffic on the green light and after a little while it turned orange – I edged out into the intersection. There was a small truck (stationary) on the other side turning right into Wyatt … (she brought her vehicle to a halt) … After a short time of waiting for the oncoming traffic the lights that I was at turned orange … Once the light had turned orange I looked at the oncoming traffic and I noticed the car – two cars coming to a slow down, one of which just about stopped. The other one was a bit further back. It was slowing down … they were in two separate lanes. … And then once I’d ascertained that they were actually going to stop I turned right into Morgan Road. … I never saw a bike … Soon after turning right I got hit … Just prior to making Morgan Road … The front left of the bonnet area down to the passenger door on the left … Spun it around and I was then facing south on Forest Way.

13 The defendant gave a statement to a police officer about 20 or 30 minutes after the accident in which she said:

… I had my blinker on to turn right into Morgan Rd. There was a truck or bus turning right from the other direction. I stopped at the intersection for ages on a green light as there was cars coming through. Then the light went orange. I had already edged out. As I edged out a BMW stopped on Forest Way at the intersection so I went right. I hit a motorcycle … and the car spun around. I never even saw the motorcycle. I wasn’t even sure what had happened …


14 It is not entirely clear from the defendant’s evidence whether the lights turned yellow before she entered the intersection from a stationary position or after she edged out into the intersection on a green light and brought her vehicle to a stop waiting for the oncoming traffic to clear. Viewed overall, I think it more probable from what she said, and I so find, that she edged into the intersection when the lights were green and came to a stop waiting for the oncoming traffic to either clear the intersection or stop before entering it.

15 When the lights changed to yellow she commenced to turn, according to her statement, when “a BMW stopped on Forest Way at the intersection” and she then “hit a motorcycle”. However, in her oral evidence she said when the lights changed to yellow she noticed “two cars coming to a slow down, one of which just about stopped. The other one was a bit further back … slowing down”; it was then she turned right. I prefer the defendant’s version of what she saw as being that stated to the police officer just after the accident as being the more probable. That means, and I so find, that she saw the BMW come to a stop but failed to see any other vehicle approaching the intersection from the north, except the truck stopped in the right-turn lane waiting to travel into Wyatt Avenue. Therefore, the defendant commenced to turn right from a stationary position in the intersection but without maintaining a proper lookout for all vehicles which could interfere with her passage. As will be seen from other evidence, and the defendant accepted this, there was in fact a second vehicle slowing down at the intersection travelling south. That is negligence. Also, she expressly admitted not seeing the plaintiff’s motorcycle – that too is negligence – in a situation where she said she “wasn’t even sure what had happened.”

16 A further disquieting aspect of the defendant’s evidence was that she said the impact occurred with the motorcycle “just prior to [her] making Morgan Road”. This may be understood as the collision occurring when the defendant’s car was in line with the kerbside lane (lane 1) of Forest Way looking south so that the turn was all but completed. Two other witnesses, to whose evidence I will come, put the location of the impact in line with the lane nearest the median strip (lane 2) and, decisively I think, the objective evidence from photographs taken shortly after the accident by a police officer showed the defendant’s car after it had been spun through 90 degrees in lane 1 facing south. It follows, and I so find, that the motorcycle and the car collided when the car was in the intersection in the path of lane 2; that means the collision occurred only momentarily after the defendant started to turn right from a stationary position in the intersection. The objective evidence from the photographs of the resultant debris from the collision and skid marks from the motorcycle confirms that. Also, a sketch plan of the accident made by the attending police officer was amended to accord with this position. This finding exacerbates the earlier found failure of the defendant to have not kept a proper lookout as she commenced to turn right.

17 Nicholas Michael Martin gave evidence for the defendant. Mr Martin was the chief executive officer of a computer software company, then lived in Terry Hills and regularly travelled to work in a BMW 7 Series motor car south along Forest Way so that he was familiar with the intersection where the subject accident occurred. He described the roadway before the intersection as “a climb up to the intersection and then it’s a flat stretch and a sweeping bend to the left.” He was travelling on 9 September 2002 at about 9:45 am, as he said, in the kerb side lane, lane 1, towards the intersection in a southerly direction at about 60 or 70 kmh. He stated what then occurred in this way:

As I was coming around the bend the traffic lights become visible. I noticed them turn orange so I slowed down. … I was a fair way out when they went orange so there wasn't really any doubt whether I would be able to go through or not. It wasn't one of those decisions you have to make. … I just took my foot off the accelerator and slowed down, put my foot on the brake when I got to the intersection, just a normal traffic light stop. … there was a Harley Davidson motorcycle which I heard accelerate as I was coming up towards the intersection. I hear him drop down a gear and then I looked in my mirror and saw him there. … he was a way back … and then he kind of disappeared from sight, as he moved to my right, so I couldn't see him at that point because he was in my blind spot so he then come up on my right-hand side between me and the truck that was stopped next to me at the intersection.

18 Mr Martin said that when he looked in his rear vision mirror the lights had changed to yellow and the motorcycle was behind him. He added:

I just cruised to a halt with my foot on the brakes … Then as I was kind of sitting there the lights had gone red about the time I stopped. I heard the guy accelerate just before that and … it was clear he was going to try and go through the lights, and I thought that was kind of a, you know, gutsy move. … right before he got to the intersection the car pulled into the intersection across the front of us … and then I kind of knew it was going to be a struggle and he became between me and the car next to me and swung hard to the left to try and get around the car, but didn't quite make it around the front of the car and hit the front of the car (the front left guard).

19 Three days after the accident, Mr Martin gave a statement about the accident to police officers who attended his home. In the statement he relevantly said:

… As I came towards the intersection about fifty metres out the lights went orange. There was a truck on my right hand side and we both pulled up. The truck was in the lane next to me. When I pulled up I did not have to make a decision about whether to stop or not as the light had been orange for a while. The lights were red right about the time I stopped. I was right at the intersection, there were no cars in front of me. As I stopped there was a lady coming across the intersection in a blue station wagon. I’m not sure where she came from, she may have come from Wyatt Avenue but I couldn’t tell as there was the truck obscuring my view. I think she was turning right to go into Forest Way. That was my impression. I heard a Harley Davidson motorcycle accelerate. I had seen him before in my rear vision mirror but he was a fair distance back. As I heard him he came round the sweeping bend. He was in my lane. He then accelerated and went between the truck and I. I then knew he was going to be in trouble as I saw the station wagon. The lights were red for a few seconds before the motorcycle came into the intersection. The motorcycle rider tried to go around the station wagon to the left. He didn’t make it as he was travelling going fast as he had accelerated as he saw us stop at the light. The motorcycle hit the left hand front corner of the station wagon. As he hit the car swung around to the right …


20 The lights were said by Mr Martin to have changed from green to yellow when he was about 50 metres from the intersection and he first saw the defendant’s car moving across his front after he stopped at the lights about the same time as they turned red. A feature of his recollection, consistent with his statement, was that he did not see any vehicle in lane 2 next to or just behind him but only the truck which, on other evidence, was stopped at the lights waiting to turn right from the right-turn lane into Wyatt Avenue. Strangely, Mr Martin thought the defendant’s car had come from Wyatt Avenue turning right into Forest Way which would have meant that it would have had to enter the intersection against a red light.

21 I was troubled by Mr Martin’s evidence. He was quite dogmatic in his account of events and seemed intent to emphasise his leisurely approach to the intersection by comparison to that of the plaintiff’s motorcycle which accelerated, changed gears, changed into lane 2 or between his BMW and the truck, and then accelerated again; he repeated that the lights were red when the motorcycle passed into the intersection. There was no other evidence in the proceedings from eye witnesses or from the defendant that the lights had changed to red when the accident occurred. Indeed, the defendant’s version strongly pointed to them still being yellow. Further, Mr Martin said he was about 50 metres from the intersection when the yellow phase of the lights commenced so that at 80 kmh the plaintiff would reach the lights in about two and a quarter to two and a half seconds with at least two and a half seconds remaining before the red light phase commenced. Mr Martin, perhaps of no great moment in itself but as indicating his perception of events, assumed that the accident occurred at 9:45 am, his usual time to pass along this stretch of road, when all the other evidence indicated it occurred about 9:20 or 9:25 am.

22 I find the evidence of Mr Martin to be unreliable and specifically reject his claim that the truck was in lane 2 next to him and that the lights were red when the plaintiff entered the intersection. I accept there was another vehicle in lane 2 travelling just short of Mr Martin, based on evidence to which I will refer, that the truck referred to was stationary in the right-turn lane leading into Wyatt Avenue and that the plaintiff entered the intersection with the lights still on yellow.

23 The “other vehicle” I have referred to as travelling south on Forest Way in lane 2 was a blue Toyota Tarago van driven by Jennifer Margaret Fitzgerald in which Julie Ann Robinson was a passenger with Ms Fitzgerald’s four-year old son. In her statement to the attending police officer made three days after the accident, Ms Fitzgerald said:

As we were approaching the intersection with Morgan Road the lights turned amber. I thought is there enough time to go through the lights and I thought definitely no. I was travelling at 80 kmh I think the speed limit. The man in lane 1 stopped fairly quickly as soon as the lights changed to amber. I think he was in a large dark car. I slowed and as I was slowing the motorbike, a Harley Davidson appeared in front of me in lane 2. I couldn’t judge where he was at the intersection but he appeared about the time the man in the dark car stopped. He was to the man’s right. He seemed to be in the middle of my lane in front of me. I don’t know where he came from but I think the motorcycle came from behind the man in the dark car who stopped. I didn’t hear him … he was just suddenly in front of me. The next second the motorcycle rider was flying through the air and the motorbike was too. Initially I didn’t see why but then saw that a car had come from the right. I stopped after the man had been hit at the intersection – I’m not sure how long but it seemed like a long time a matter of seconds. I didn’t look at the lights …

24 Ms Fitzgerald prepared a further statement dated 9 January 2003 of what occurred. Generally, this statement was consistent with what she told the police officer a few days after the accident but it was a fuller account. In it she included the following observations:


… the other vehicle was a Holden Commodore which was travelling in a northerly direction, it had been stationary at the intersection, waiting to turn to the right into Morgan Road, and when attempting to do so the accident took place.

… The lights changed from Green to Amber as we approached the intersection and we slowed down to stop. I believe there was a truck on our right in the right turn lane, but I do not recall seeing it. There was another vehicle on our left but in front of us.

When we stopped the lights were Red, but they were Amber on approach. I don’t know where the motorcycle, the Harley came from, I know that it did not come on my right, so it must have come through on my left and I understand it did so. However, it definitely went through the lights on Amber as it was in front of our vehicle, the other vehicle on our left, also in front of us had stopped on the Amber Light, and when I also stopped. When the motorcycle went onto the intersection the lights were still Amber as this was the first time I had seen it, and I was of the opinion he had time to get through. The other vehicle that was the Holden Commodore it had come onto the intersection and it was waiting for a break in the traffic to turn right into Morgan Road. … the cyclist drove onto the intersection, the Holden Commodore to turn to the right and there was a collision in about the middle of the intersection. When the motorcyclist entered the intersection the lights were most certainly still amber, they had not changed to Red. …

25 Ms Fitzgerald was tested in cross examination as to her view of the colour of the lights and affirmed that she “would definitely have seen if they’d … turned red” and “at the point of impact … the amber lights were in the background” and “I was absolutely convinced that the lights were amber … when I saw him (the motorcycle rider plaintiff) in the middle of the road and then in the air.” Interestingly, Ms Fitzgerald gave evidence that a few minutes after the accident “a man approached me (presumably Mr Martin) and very brusquely said ‘They were red’ and I said ‘No, they weren’t they were amber’ and it’s the first time that I’d ever doubted in any way that the lights had been amber when he’d gone through.” As to the ability of the plaintiff being able to get through the intersection on the yellow lights, Ms Fitzgerald was clear:

Because he was in front of me I had absolutely no doubt that he would’ve got through the intersection, because had I gone at 80 I would’ve been close to going through the lights and he was in front of me, right in front of me.


26 I formed a favourable view of Ms Fitzgerald as a witness. She presented her evidence in a quiet but forthright manner and who appeared genuinely concerned to assist in a determination of the facts. She did not add comments or try to fill in gaps and her resultant evidence was credible. Indeed, in a real sense, on equivalent subject matters her account was not at odds with that of the defendant except only that she placed the point of impact more in the centre of the intersection rather than where the defendant said nearer to Morgan Road. However, as I have foreshadowed, the objective evidence from the photographs placed the collision at a point consistent with what Ms Fitzgerald said. I accept her evidence.

27 Ms Robinson gave a statement to the attending police officer about 30 minutes after the accident. She said:

… As we were approaching lights they had been on amber a long time, so we stopped. The motorbike came up left had side in between cars. You could hear him speeding up to get through lights. Blue station wagon pulled out of Wyatt Avenue to turn right into Forest Way. Motorbike saw car and swerved. Car hit the back of the bike …

28 Shortly after giving the statement, Ms Robinson amended it to include the following:

After thinking about it, I realise I have assumed she was coming out of Wyatt because she was approaching from the middle of the road, but she was turning right off Forest Way down Morgan Road and swerved to the right to avoid the bike.


29 Ms Robinson in oral evidence was questioned to supplement her statement and described the events leading to the accident and the positioning of vehicles in a way consistent with what Ms Fitzgerald had said. Ms Robinson said she was sure that the lights were yellow when the accident occurred. In fact, she said as the Tarago was approaching the lights they just turned from green to yellow and “that’s why I thought if I were driving this car I would have carried on through but Jenny [Fitzgerald] just rolled slowly towards the line but we didn’t actually get to the line because we were still back from the line because the man drove in front of us on the motorbike and then he kind of went into the middle of the intersection as we hit the line and the car hit him.”

30 Ms Robinson was closely tested about her version of the events and of apparent variations between her statement and oral evidence. She was very forthright in her answers but tended to pass off matters of detail, such as the direction of travel of the defendant’s vehicle and the duration of the lights being on yellow. I am satisfied she was doing her best to recall what happened but I would treat her evidence on detail with caution and where it differed from that of Ms Fitzgerald I would adopt Ms Fitzgerald’s version.

31 It is convenient first to review the provisions of the Australian Road Rules as they affected the defendant. Rule 62, in terms, provides that a driver turning right at an intersection with traffic lights “must give way to: … any oncoming vehicle that is going straight ahead …”. This the defendant did not do. It is true the defendant had a right to enter the intersection on the favourable green light and to clear the intersection even when the light turned to yellow. However, in my view, she was not thereby absolved from her common law duty to keep a proper lookout: see Shepherd v Zilm (1976) 14 SASR 257 at 260-261. The defendant did not see the motorcycle which, to me, indicates a serious failure in duty on her part which resulted in a failure to comply with rule 62 of the Australian Road Rules . If a proper lookout had been kept then she should have understood that the motorcycle was continuing on its course in sufficient time to enable her to comply with rule 62. As was observed by Johnston J in Schmalkuche v Williams (1987) 6 MVR 274 at 283, in not dissimilar circumstances to those before me but where the motorcyclist there entered the intersection on a red light:

In the sort of situation in which the defendant found herself, it seems to me that there is a heavy duty cast upon the driver not to turn until he or she has ascertained either that there are no vehicles approaching, or that they have passed through or that they have stopped on the stopline against the red light or are plainly stopping, before proceeding to make the right-hand turn.


32 I find that the defendant was negligent in failing to keep a proper lookout and in proceeding to make the right-hand turn but by failing to give way to the oncoming motorcycle ridden by the plaintiff. Of course, the defendant, as she stood stationary in the intersection when the lights changed from green to yellow, had a duty under rule 61(5) of the Australian Road Rules to leave the intersection; but, as the rule says, “as soon as the driver can do so safely.” It was not safe for her to do so here with the oncoming motorcycle.

33 Consideration of the contributory negligence issue as to the role of the plaintiff may be viewed from the terms of the relevant Australian Road Rules . I have found earlier on the evidence that the plaintiff entered the intersection when the lights were yellow – Ms Fitzgerald and Ms Robinson were of that view and the defendant’s sequence of events supports that; only Mr Martin said the lights were red but I do not accept his evidence on this aspect. Rule 57 applies to a driver (including a rider of a motorcycle) approaching a yellow traffic light; rule 57(2), in effect, requires the driver to stop and not to enter the intersection. However, the qualification under the rule is that the driver “can stop safely” in doing so.

34 The plaintiff’s senior counsel put a strong submission that there was likely to be no fault in the plaintiff, but, if there was, then it was minimal in a situation where the only thing he did not do was slow down and make an attempt to stop. Even so, as the submission went, he was travelling at about 22 metres per second and on the lights changing to yellow some 50 meters from the intersection had close to two seconds of the yellow-light phase remaining on reaching the intersection to go through it. It was reasonable for the plaintiff to expect traffic from the south turning right to give way to through traffic and it was the defendant’s decision, not seeing the motorcycle, to commence the turn that led to the collision just as she started to do so. Senior counsel emphasised the decision, as earlier cited, in Arthur v Cooke and said the only issue for the plaintiff was any cross-traffic from Morgan Road and Wyatt Avenue but that was unlikely during the yellow-light phase when they still had a red light. Against that, senior counsel for the defendant, in relying on rule 57, said both Mr Martin in the BMW and Ms Fitzgerald in the Tarago were comfortably able to bring their vehicles to a halt so that it was not open to find the plaintiff could not have done so also, particularly as he was travelling behind the line of the BMW and the Tarago. The only exception would be where the plaintiff was travelling at a grossly excessive speed. Here, the evidence established, as senior counsel said, that rather than bring his motorcycle to a halt the plaintiff either continued at the same speed or accelerated in order to “beat the lights” contrary to Australian Road Rules .

35 Given the terms of s 138(3) of the Motor Accidents Compensation Act as to contributory negligence for damages to be reduced by the amount considered “just and equitable in the circumstances of the case,” the decision of the High Court in Pennington v Norris (1956) 96 CLR 10 is instructive; their Honours said (at 16):

What has to be done is to arrive at a “just and equitable” apportionment as between the plaintiff and the defendant of the “responsibility” for the damage. It seems clear that this must of necessity involve a comparison of culpability. By “culpability” we do not mean moral blameworthiness but degree of departure from the standard of care of the reasonable man.

36 In Joslyn v Berryman (2003) 214 CLR 552, McHugh J (at 558) succinctly stated:

At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed.


37 In the view I have formed, I see no reason on the facts found why the plaintiff could not have safely stopped his motorcycle at the intersection when the lights changed to yellow. Mr Martin and Ms Fitzgerald did so. I think judicial notice may be taken of the fact that it is not safe to brake a motorcycle too strongly and I have very much in mind also the observations of Samuels JA, adopted by Priestley JA, in Arthur v Cooke about the manoeuvrability of motorcycles. However, the evidence here amply demonstrated that the plaintiff failed to stop on the yellow light when he could have done so with safety. Certainly, I am satisfied it would have been prudent. In the absence of evidence from the plaintiff, one is unable to say why he did not stop other than, perhaps, a misjudgement of the time still available on the yellow-light phase to clear through the intersection. I am not prepared to say he was trying to “beat the lights”, certainly he was not “running a red”, simply that his actions were beyond a reasonable risk but at worst a misjudgement. The evidence of the plaintiff’s personal and employment history, as earlier summarised and commendable as it was, enables those inferences to be more comfortably drawn.

38 I conclude that the negligence of the defendant was more culpable than that of the plaintiff and was the principal cause of the accident. She failed to keep a proper lookout in making the right-hand turn, a notoriously risky manoeuvre at any time, and from a stationary position in the intersection failed to give way to oncoming traffic. The plaintiff’s negligence was in not stopping when the lights turned to yellow but where there was a period of about two and a half seconds (equivalent to about 55 metres of travel at 80 kmh) to pass through the intersection once he reached the traffic lights. The defendant’s decision at that point to complete her right-hand turn from the stationary position in the intersection was premature – she should have waited and taken a more careful view of the oncoming traffic.

39 I apportion two-thirds of the fault for what occurred to the defendant and one-third by way of contributory negligence to the plaintiff.

40 Accordingly, the plaintiff is entitled to a verdict in the agreed assessed amount of $2,000,000.00 reduced by one-third for contributory negligence, a resultant amount of $1,333,333.34.

41 I will hear the parties on costs before making final orders.

17/07/2007 - 4 July 2007 - Final orders made. - Paragraph(s) Final orders:1) There will be a verdict and judgment for the plaintiff against the defendant in the sum of $1,333,333.34.2) Order the defendant pay the plaintiff’s costs on a party/party basis up to 29 May 2007. Defendant to pay the plaintiff’s costs on an indemnity basis on and from 30 May 2007.3) Subject to payment to the plaintiff by the defendant of $333,333.34 within 21 days of today execution of the remainder of the judgment be stayed pending resolution of any appeal.4) Exhibits be retained with the file for 28 days.