Wormald Australia Pty Ltd v Allen; Allen & Anor v Brain & Anor (Civil Dispute)
[2023] ACAT 58
•27 September 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
WORMALD AUSTRALIA PTY LTD v ALLEN; ALLEN & ANOR v BRAIN & ANOR (Civil Dispute) [2023] ACAT 58
XD 798/2022
XD 93/2023
Catchwords: CIVIL DISPUTE – motor vehicle accident – negligence – counterclaim – bailment – safe braking distance
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 48
Civil Law (Wrongs) Act 2002 ss 40-48
Cases cited:Casino Canberra Limited ACN 051 204 114 v Kidman [2022] ACAT 22
CIC Australia Ltd v ACT Planning and Land Authority, Mainore Pty Ltd and ACT Civil and Administrative Tribunal [2013] ACTSC 96
D’Silva and Anor v Canberra Strata Pty Ltd and Anor [2022] ACAT 79
Kidman v Casino Canberra [2020] ACAT 50
Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34
Reardon v Seselja [2021] ACTCA 4
Steed v McDougal [2019] ACTSC 36
Tribunal:Member W Hawkins
Date of Orders: 27 September 2023
Date of Reasons for Decision: 27 September 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 798/2022
BETWEEN:
WORMALD AUSTRALIA PTY LTD ACN 008 399 004
Applicant
AND:
KIEREN MALCOLM ALLEN
Respondent
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 93/2023
BETWEEN:
MALCOLM ALLEN
First Applicant
DONNA ALLEN
Second Applicant
AND:
SIMON BRAIN
First Respondent
WORMALD AUSTRALIA PTY LTD ACN 008 399 004
Second Respondent
TRIBUNAL:Member W Hawkins
DATE:27 September 2023
ORDER
1.In application XD 798/2022:
(a)The respondent is to pay the applicant the amount of $3,602.87 plus interest to date of decision within 28 days.
(b)The applicant’s application for costs for 27 January 2023 is dismissed.
2.In application XD 93/2023,
(a)the respondents are to pay the applicants the amount of $1,765.60 plus interest to date of decision within 28 days.
(b)The parties in both application XD 798/2022 and XD 93/2023 have liberty to relist for further mention with seven days’ notice with respect to calculation of interest in the absence of agreement between the parties.
………………………………..
Member W Hawkins
REASONS FOR DECISION
1.In an application dated 9 August 2022, Wormald Australia Pty Ltd (Wormald) claimed damages arising out of a motor vehicle collision on Adelaide Avenue, in the Australian Capital Territory occurring on 16 November 2021 at about 9am. Wormald was the owner or the bailee in possession of a Ford Courier utility motor vehicle registered (the Utility) driven by Simon Brain (Brain), an employee of the applicant in the course of his employment with Wormald. Kieren Malcom Allen (Allen) was the driver of a Holden Astra (the Astra) on his way to work.[1] Both vehicles were travelling in a northerly direction along Adelaide Avenue. The utility collided with the rear of the Astra and following this collision, the Astra then collided with the rear of a Mazda CX-5 (the Mazda) that was also travelling in a northerly direction along Adelaide Avenue driven by Jodie Huet (Huet). Huet was not a party in the proceedings but in the course of the proceedings had communications with both the lawyers for the applicant and for the respondent.
[1] Civil Dispute Application dated 9 August 2022, Annexure A at [1]-[3]
2.Wormald alleged that the cause of the collision was the negligence of Allen. The amount of their claim was $5,664.78 together with filing fees of $340 and statutory interest claimed from the date of the collision.[2]
[2] Civil Dispute Application dated 9 August 2022, Annexure A at [4]-[5]
3.Allen filed a response dated 27 October 2022 and denied liability for the claim and made a counterclaim for damages. Allen alleged that he was the owner and/or bailee of the Astra and therefore had a proprietary interest in the vehicle.[3] The amount of the counterclaim was $4,244 together with filing fees of $170 and statutory interest claimed from the date of the collision.[4]
[3] Response – Civil Dispute dated 27 October 2022, Annexure B at [1]
[4] Response – Civil Dispute dated 27 October 2022, Annexure B
4.The application was listed for a conference on 14 November 2022. The applicant did not appear, and the matter was listed for hearing on 27 January 2023 for a half day. Directions were made for the filing of witness statements and other evidence. The applicant’s material was to be filed and served by 28 November 2022 and the respondent’s material by 14 December 2022.
5.Wormald filed a response to the counterclaim dated 25 November 2022. In Wormald’s response, they denied liability and amongst other things, did not admit that Allen was the owner and/or bailee of the Astra and as a result did not concede that Allen had standing to bring the counterclaim and put Allen on notice that ‘strict proof’ was required.[5]
[5] Response – Civil Dispute Counterclaim dated 25 November 2022, Annexure A at [1]
6.At the hearing on 27 January 2023, the applicant was represented by Athol Opas, of counsel and instructed by Margaret George solicitor of Ligeti Partners and the respondent was represented by Katherine Richards, solicitor of Turks Legal and assisted by Rebekah Maxton also of Turks Legal. The respondent conceded the applicant’s ownership and standing with regards to the Utility.[6] The parties also agreed on the quantum of each claim, with the applicant’s claim agreed at $5,664.78 and the respondent’s claim agreed at $4,244 with filing fees and interest to be added to each claim.[7]
[6] Transcript of proceedings, 27 January 2023, page 7
[7] Transcript of proceedings, 27 January 2023, page 9
7.The Astra was owned by the respondent’s parents Malcom Allen and Donna Allen (respondent’s parents or parents) and the applicant did not concede that Allen had taken possession and driven the Astra pursuant to a gratuitous bailment and did not agree to allow oral evidence from the parents with respect to the arrangement particularly in the absence of any relevant witness statements by them.[8] The applicant argued that the respondent’s parents had not been named as respondents and because Allen was not the owner of the Astra, he was not able to make the counterclaim. Following a short adjournment, on the respondent’s application, the hearing was adjourned, and consent directions were made for future conduct of the matter including the filing of an application by the parents for damages and a response. Thereafter, both matters were to be listed together for directions and to be heard together. Before the adjournment, some documents were tendered by the parties. The applicant sought the costs of the day which were reserved. A further application dated 3 February 2023 naming Malcom Allen and Donna Allen as applicants (cross applicants) and Brain and Wormald as respondents (cross respondents) was filed and a response to the ‘counterclaim’ dated 22 February 2023 was filed.
[8] Transcript of proceedings, 27 January 2023, page 23
8.On 17 March 2023, both matters were listed for directions. Consent directions were made for future conduct including the listing of both matters for hearing concurrently and that evidence filed and served in one application would be regarded as having been filed in the other application. Directions were also made for the filing and exchange of any additional documents including statements.
9.On 11 May 2023, both matters were listed for hearing for a full day. Opas appeared for the applicant/cross respondents, and Maxton appeared for the respondent/cross applicants. The parties agreed on the ownership of the respective vehicles with the result that the issues to be determined at hearing were limited to liability and the costs of the listing on 27 January 2023.[9]
The evidence and submissions
[9] Transcript of proceedings, 11 May 2023, pages 4-6
10.Both parties tendered a number of documents including statements. It is not proposed to list all the tendered documents. Rather, tendered documents will be referred to as and when necessary, in this decision.
11.Huet provided a statement dated 12 April 2023 that was tendered by the applicant/cross respondents. Huet also spoke to the respondent/cross claimants’ solicitor Maxton on 9 November 2022. Maxton made a file note of the conversation and provided a statement dated 11 May 2023 which annexed a copy of the file note of the conversation with Huet. Maxton’s statement with the annexures was tendered by the respondent/cross applicants. Maxton’s statement also annexed a document headed “Stopping distances on wet and dry roads” published by the Queensland Government (Stopping Distances Document).[10]
[10] originally accessed 11/05/2023 at 09:16
12.Unfortunately, Huet’s statement provided to the applicant/cross respondents was somewhat at odds with what Maxton had recorded in her file note. No subpoena was issued at the request by either party to compel Huet to attend the hearing and to give evidence. At the time of the hearing on 11 May 2023, it was understood that Huet was on a boat at an unknown location in Western Australia and was not available to give evidence.[11] As a result, the parties made submissions with regards to what weight or significance the Tribunal could place on the Huet’s statement and/or the file note.[12]
Applicant/Cross Respondent’s evidence
[11] Transcript of proceedings, 11 May 2023, pages 56-57
[12] Transcript of proceedings, 11 May 2023, page 59
13.Brain provided two statements; the first was dated 17 January 2023, and the second was dated 10 May 2023. Brain also gave oral evidence and was cross examined. In brief, Brain’s evidence was that:
(a)He was the driver of the Utility and is very familiar with Adelaide Avenue. On the day of the collision, weather conditions were fine and dry, and traffic was heavy and ‘bumper to bumper’.
(b)He had turned from Cotter Road into Adelaide Avenue. The lane from Cotter Road fed into its own lane on Adelaide Avenue. He was travelling about 60 km/h and the speed limit on Adelaide Avenue was 80 km/h.
(c)The “gap” to the vehicle in front of him on Adelaide Avenue was “tight”, but he was travelling a “safe braking distance.”
(d)He intended to take the next exit on Hopetoun Circuit in order to go to Deakin.
(e)He then noticed the Astra in his “peripheral vision”, it started to pass his Utility then “cut” into his lane; and he did not notice the Astra indicate when it “merged” into his lane.
(f)The Astra was “pretty much established the whole way” in Brain’s lane and “was directly in front of my vehicle.”[13] Brain sought to clarify this issue in his second statement as follows:
When the Blue Astra merged into my lane in front of my vehicle, the Blue Astra was not fully established in my lane before the Blue Astra braked and before the collision...[14]
(g)After the Astra merged into his lane it was about a car length in front of his vehicle and almost immediately the traffic in front slowed and the driver of the Astra braked (Brain noticed activation of brake lights). Brain “immediately” applied his brakes but was unable to stop and impacted the rear of the Astra and the Astra was pushed “into the vehicle in front of him.”[15]
(h)He sought to clarify this statement in his second statement and said:
When the Bue Astra merged in front of my vehicle, and immediately before the Blue Astra suddenly braked, there was approximately one car length between the front bumper of my vehicle and the rear bumper of the Blue Astra.[16]
[13] Simon Brain statement, 17 January 2023, Exhibit A2 at [22]
[14] Simon Brain statement, 10 May 2023, Exhibit A7 at [4]
[15] Simon Brain statement, 17 January 2023, Exhibit A2 at [23]-[28]
[16] Statement Simon Brain, 10 May 2023, Exhibit A7 at [4]
14.When Brain was asked in cross examination when asked about his two statements, and particularly his revisiting specific paragraphs of his original statement and particularly the distance (including time interval) between his vehicle and the Astra after the Astra had merged (either wholly or partly) into his lane. Brain said:
(a)Before the Astra merged, the traffic ahead of him was not slowing.
(b)He applied his brake lights once he saw the brake lights activate on the Astra.
(c)He was unable to see the brake lights of the Mazda (that at this point in time was now in front of the Astra).
(d)When asked about whether there was any discrepancy in his statements regarding how far into his lane the Astra was, and whether it was in fact as he said in his earlier statement that the Astra “pretty much established the whole way in the lane”, whereas in his second statement he said that the Astra was “not fully established and was actually only two-thirds of three-quarters established,” he said that he thought that both those statements “say pretty much the same thing”.[17]
[17] Transcript of proceedings, 11 May 2023, page 27 (errors in original)
15.Brain in re-examination said:
(a)The insurance claim was completed following his notification of the subject collision to his employer. The notification to the employer was done by accessing an application (the app). An Initial Incident Report and Investigation Form was then populated or completed by the app or by another employee.[18] He was also able to use the app to upload five photographs of the accident taken by him to his employer when making the notification.[19]
(b)An Australian Federal Police report was completed online by him later on the morning of the collision.[20]
Respondent/Cross Claimants’ evidence
[18] Exhibit A9 and Transcript of proceedings, 11 May 2023, pages 31-32
[19] Exhibit A8
[20] Exhibit A10
16.Allen provided a statement dated 24 December 2022 and gave evidence and was cross examined. In brief, Allen’s evidence was that:
(a)He was the driver of the Astra and is very familiar with Adelaide Avenue. On the day of the collision, it was a dry, sunny day. The road was “busy”. The speed limit was 80 km/h and he was travelling “around 60 km/h.” He was travelling in the middle lane of three lanes on his way to work in a café in Deakin.
(b)He saw a break in the traffic in the lane to his left, he activated his left indicator and checked his rear-view mirror, then checked “blind spots to his left”. He then moved his vehicle into the left lane. “Once established in the left lane” he kept travelling for “roughly 5 seconds when the traffic in front began to slow down and come to a stop.” He activated his brakes and came “to a stop.”
(c)The applicant’s Utility then collided with the “middle of the rear of my vehicle” and his Astra was then pushed into the rear of the Mazda in front of him.
(d)He submitted a traffic collision report to the police and lodged an insurance claim with the assistance of his father.
17.In cross examination, Allen said:
(a)He was changing lanes so he could exit Adelaide Avenue. He agreed the traffic was “heavy”, and it was “more than normal.”
(b)He was travelling about 60 km/h and normally the traffic was probably a ‘bit faster’ and ‘something like 60 to 70 normally.’
(c)The traffic in the left-hand lane that he was intending to merge into was “congested”.
(d)He noticed the Mazda in the left lane before he merged and also noticed the Utility before he merged. The space between the Mazda and the Utility before he merged was a “car’s length plus … sufficient space” between his vehicle and the applicant’s vehicle. The “sufficient space” he said was big enough for his Astra to “go in.”[21] He disagreed with the proposition that he either did not indicate or only indicated as he changed lanes. He recalled his indicator “clicking” about “two to three times” before he changed lanes.[22] As he merged, he noticed the traffic in the left lane was “slowing” but not to the point of “heavy braking” and did not recall whether he saw brake lights on the Mazda or on other vehicles ahead of the Mazda in the left-hand lane.
[21] Transcript of proceedings, 11 May 2023, page 44
[22] Transcript of proceedings, 11 May 2023, page 47
(e)Although the traffic was “congested”, he could not remember the distance between each vehicle. He also considered the possibility that at the time of merging into the left lane that the vehicles in front of the Mazda may slow. He said in response to a question concerning the space between Brain’s Utility and Huet’s Mazda before he (Allen) merged was “like a car’s length plus, like sufficient space between me and Simon Brain’s car.”[23] He did not think that Brain had to slow to enable him to have the “sufficient space.”
(f)He disagreed with Brain that he (Allen) was not fully in the left lane before the “heavy braking occurred” and that the time interval between his Astra being in the left lane and the “heavy braking” of the Mazda in front of his vehicle was “about five seconds.”[24] He said that although it was “heavy braking,” it was not “slamming on the brakes for a sudden stop.” He also believed that the Mazda came to a complete stop before the collision with Brain. Although he gave an approximate time interval of “about 5 seconds” before he had to brake,[25] he was not “comfortable” in stating the approximate distance between his vehicle and the Mazda but then said it was “probably a bit over a car length.”[26]
(g)He was unable to estimate the distance between his vehicle when he applied his brakes and the Utility; and agreed that he was looking in front rather than behind.[27]
(h)He denied he was travelling too close to the Mazda and that when the traffic and the Mazda slowed, he had to brake hard in order to not collide with the rear of the Mazda. He also denied that his vehicle was only about two-thirds or three-quarters in the left lane before the collision with the Utility occurred.[28]
Applicant/Cross respondent’s submissions on liability
[23] Transcript of proceedings, 11 May 2023, page 44
[24] Transcript of proceedings, 11 May 2023, page 49
[25] Transcript of proceedings, 11 May 2023, page 49
[26] Transcript of proceedings, 11 May 2023, page 52
[27] Transcript of proceedings, 11 May 2023, page 53
[28] Transcript of proceedings, 11 May 2023, page 50
18.First, the applicant/cross respondent submitted in relation to proceedings XD 798/2022 commenced by Wormald, that the respondent Allen was negligent. The applicant referred to the particulars of negligence and in particular, that Allen drove into Brain’s Utility; that he failed to keep a proper lookout and that he failed to comply with Australian Road Rules and Regulations (ARR) and in particular rule 148 which provides that a driver who is moving from one marked lane to another marked lane must give way to any vehicle travelling in the same direction as the driver in the marked lane to which the driver is moving.[29]
[29] Transcript of proceedings, 11 May 2023, page 61
19.Second, the applicant/cross respondents referred to the authorities of Reardon v Seselja (Reardon)[30] and Steed v McDougal (Steed) [31] for a convenient summary of applicable principles including contributory negligence.[32]
[30] [2021] ACTCA 4
[31] [2019] ACTSC 36
[32] Reardon at [5]-[22], Steed at [114]-[153] and Civil Law (Wrongs) Act 2002 sections 40-48
20.Third, the applicant/cross respondent identified that the critical issues for determination by the tribunal to determine were: the relative distance between the Mazda and the Utility immediately prior to and potentially after the Astra merged from the middle lane to the left lane; whether Allen activated his left indicator before changing lanes, and if so, whether that was with appropriate notice.[33]
[33] Transcript of proceedings, 11 May 2023, page 64
21.Fourth, the applicant/cross respondent contended that Allen did not make adequate allowance for the traffic congestion along Adelaide Avenue on the morning of the collision and the potential that vehicles in front of the and the Mazda itself might have to break quite suddenly.[34]
[34] Transcript of proceedings, 11 May 2023, pages 64-65
22.Fifth, although Allen had come to a stop after merging, he was only able to stop because he had “braked hard” and that Brain was put in a “position of peril” or “agony of the moment” and unable to stop, it was as a result an “unavoidable accident”.[35] After an objection by the respondent/cross claimant then submitted that they did not “push” the “agony of the moment” submission.[36]
[35] Transcript of proceedings, 11 May 2023, page 65
[36] Transcript of proceedings, 11 May 2023, page 66
23.Sixth, Allen failed to keep a safe distance behind the Mazda in front which was in breach of ARR 126 and this was a further indicator of his negligence.[37]
[37] Transcript of proceedings, 11 May 2023, page 65
24.Seventh, if it is accepted that Allen was not fully in the left lane, that is inconsistent with Allen’s evidence that he was in the lane for about five seconds before having to brake. Further, if he was not fully established in the left lane then it is contrary to Allen’s account and also supports the proposition that he had to brake hard while merging and therefore it was unsafe for him to be changing lanes.[38]
Applicant/cross respondents’ submissions on costs relating to 27 January 2023
[38] Transcript of proceedings, 11 May 2023, page 67
25.The applicant/cross respondents referred to section 48(2)(b) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) and referred to the decisions of CIC Australia Ltd v ACT Planning and Land Authority, Mainore Pty Ltd and ACT Civil and Administrative Tribunal (CIC Australia) [39] Kidman v Casino Canberra (Kidman)[40] and the appeal Casino Canberra Limited ACN 051 204 114 v Kidman (Casino Canberra).[41]
[39] [2013] ACTSC 96
[40] [2020] ACAT 50
[41] [2022] ACAT 22
26.The applicant/cross respondents in essence submitted that although the tribunal is ordinarily a ‘no cost’ jurisdiction, section 48(2)(b) of the ACAT Act provides an exception where the tribunal considers that a party to an application caused “unreasonable delay or obstruction before or while the tribunal was dealing with the application.” In those circumstances, the tribunal may order that party to pay the “reasonable costs of the other party arising from the delay or obstruction.” The applicant/cross respondent argued that on 27 January 2023, there were a number of short adjournments whilst the respondent/cross applicants attempted to make a counterclaim for damages even though the Astra was not owned by Allen but by his parents, and the parents were not a party to the proceedings. As a result, the parents had to file separate proceedings against Wormald (and Brain). The further proceedings could then be heard with the original application. Both matters were ultimately heard on 11 May 2023 and concluded by about 1:25pm. The applicant/cross respondents argued that but for the need for an adjournment, the matters could have concluded on 27 January 2023 within the allocated three hours. The main or sole reason for the adjournment of the original hearing was because of the conduct of the respondent/cross applicants.[42] The applicant/cross respondents argued that the situation was analogous to that in Kidman and in Casino Canberra in that the need for an adjournment of a hearing was because of the conduct of the respondent and as a consequence Allen should be ordered to pay Wormald’s costs thrown away on 27 January 2023 on a party and party basis.[43]
Respondent/cross applicants’ submissions on liability
[42] Transcript of proceedings, 11 May 2023, pages 88-89
[43] Transcript of proceedings, 11 May 2023, 89
27.First, they submitted that what as in dispute was liability and in particular whether Allen’s Astra had fully and safely merged ahead of Brain’s Utility or whether he was still in the process of merging. They argued that the version given by Allen should be accepted that he had safely merged into the left lane before “unexpectedly” being hit in the rear by Brain’s vehicle.[44]
[44] Transcript of proceedings, 11 May 2023, page 68
28.Second, Allen had reported the collision to the police and the wording of his report to the police just hours after the subject collision was consistent with his evidence.[45]
[45] Transcript of proceedings, 11 May 2023, page 69
29.Third, they referred to Brain’s first statement and oral evidence, and in particular, Brain not recalling whether he saw the Allen’s Astra’s indicator operating. Further, they contrasted Brain’s original statement which described traffic as “bumper to bumper” but that he was still travelling at “60 km/h” and that these were inconsistent statements.[46] They argued that even on his own evidence, Brain was not travelling at a “safe distance” from the vehicle in front of him.[47]
[46] Transcript of proceedings, 11 May 2023, page 71
[47] Transcript of proceedings, 11 May 2023, pages 69-70
30.Fourth, they submitted that Brain did not give any evidence about taking any steps to increase his stopping distance after Allen’s vehicle merged.[48] They referred to Brain originally saying that there was “originally a car length” behind Huet’s Mazda, and as the gap between the vehicles decreases after Allen’s vehicle merged and that there was no adjustment of speed to account to account for the merging or merged vehicle.[49]
[48] Transcript of proceedings, 11 May 2023, page 71
[49] Transcript of proceedings, 11 May 2023, page 71
31.Fifth, they argued that even though Brain said that the traffic slowed after the Astra in cross examination merged into his lane “almost immediately”, he did not slow immediately and was not able to account for any difference between “immediately” and “almost immediately” beyond two or three seconds but whatever the interval, it was only after the Astra merged that the traffic in front slowed, and the slowing does not occur instantly, and that after the traffic slowed Allen activated his brakes.[50]
[50] Transcript of proceedings, 11 May 2023, page 72
32.Sixth, Brain stated that he says Allen’s brake lights activate and this suggests that there was some distance between the vehicles to enable Brain to see the brake lights and it is only after he saw Allen’s brake lights that he activated his own.[51]
[51] Transcript of proceedings, 11 May 2023, page 72
33.Seventh, they argued that as soon as the Astra merged into his lane, Brain should have made adjustments to his speed and relied upon ARR 126, which requires that a driver must drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle.[52]
[52] Transcript of proceedings, 11 May 2023, page 72
34.Eight, if the Astra was only half or two-thirds into Brain’s lane, then when the Mazda (that was in front of Allen) activated their brakes, Brain should have then seen the Mazda’s brake lights or the vehicles slow. As he did not see the Mazda’s brake lights or the traffic slow, this supports Allen’s contention that he was wholly inside the lane in front of Brain.[53]
[53] Transcript of proceedings, 11 May 2023, pages 72-73
35.Ninth, if before the lane merge of the Astra, there was one car length between Brain and Huet’s vehicles and Brain described this as a “safe stopping distance”, it is inconsistent for Brain to then say that the same distance between his Utility and Allen’s Astra was not enough distance to safely stop. At the very least, this suggests that Brain cannot be relied upon with respect to distance and particularly stopping distance.[54]
[54] Transcript of proceedings, 11 May 2023, page 74
36.Tenth, the damage pattern as shown by the photographs tendered indicate damage across the whole of the rear of the Astra and not just one side and this damage pattern was also corroborated by his father in his statement.[55]
[55] Transcript of proceedings, 11 May 2023, pages 74-79
37.Eleventh, the ambiguity or inconsistency between Huet’s statement and the solicitor’s file note, means that little or no weight should be placed upon Huet’s evidence.[56]
Respondent/cross claimants’ submissions on costs relating to 27 January 2023
[56] Transcript of proceedings, 11 May 2023, page 80
38.First, the respondent/cross claimants submitted that the proceedings on 27 January 2023 were beneficial in shortening the hearing on 11 May 2023. The then applicant and respondent’s versions of events were discussed and evidence, caselaw and legislation tendered.[57]
[57] Transcript of proceedings, 11 May 2023, page 89
39.Second, the decisions referred to by the applicant/cross respondents related to more “frivolous and vexatious” circumstances that were not present in the present matter.[58]
[58] Transcript of proceedings, 11 May 2023, page 89
40.Third, the applicant/cross respondents could have consented to the informal application to amend the application and join the parents as parties particularly as the parents were present at the hearing with relevant registration documents.[59]
[59] Transcript of proceedings, 11 May 2023, page 89
41.Fourth, since 27 January 2023 the applicant/cross respondents had filed and served (and tendered on 11 May 2023) additional statements, reports and photographs thereby indicating that they were not ready to proceed on 27 January 2023.[60]
Consideration and findings on liability
[60] Transcript of proceedings, 11 May 2023, page 89
42.Both Brain and Allen were very familiar with Adelaide Avenue, Deakin, and both had previously driven upon it during what might be described as Canberra’s weekday morning ‘peak hour.’ On 16 November 2021 at about 9am, the weather conditions were fine and dry and traffic was heavier than usual. Brain described it as ‘bumper to bumper’ whereas Allen described it as ‘busy’. Brain and Allen agree that the posted speed limit was 80 km/h, but traffic was travelling along at about 60 km/h.
43.Brain had turned or merged from Cotter Road into Adelaide Avenue and was intending to take the Hopetoun Circuit off ramp to go to Deakin. Allen was also intending to take the same offramp to also go to Deakin. Both Brain and Allen were travelling in a northerly direction.
44.Brain’s Utility was travelling in the left lane behind Huet’s Mazda. For Allen to take the Hopetoun Circuit off ramp, Allen had to merge into the left lane and merge between Brain and Huet.
45.Brain described the traffic in his lane as ‘bumper to bumper’. This expression suggests that the traffic was moving slowly and sometimes stopping with a likely minimal distance between vehicles travelling in the same direction. This would suggest a lower speed than 60 km/h. The Stopping Distances Document reports a reaction distance of 25 metres, a braking distance of 20 metres and a total stopping distance of 45 metres for a vehicle needing to stop on a dry road in an average family car that is travelling at 60 km/h on a dry road.[61] There were no other documents or evidence relating to reaction times or stopping distances apart from the evidence of Brain and Allen and to a lesser extent, Huet. Brain in his second statement describes the traffic as ‘heavy’ rather than ‘bumper to bumper’ and that immediately prior to the Astra merging he was travelling at about 60 km/h.
[61] Exhibit R4, Affidavit Rebekah Maxton, 11 May 2023, Annexure B
46.Allen described the traffic in his lane before he commenced his merge into the left lane as “busy” and in cross examination as ‘a bit heavier than usual.’
47.Huet provided a statement but did not give evidence. It was unfortunate that Huet did not give evidence. I advised the parties at the hearing on 27 January 2023 that there were no statements by an independent witness.[62] A subpoena to attend and give evidence may have ensured Huet’s attendance at the hearing. In the circumstances, and in particular, having read Huet’s statement and comparing the file notes of the solicitors when the solicitors had conversations with Huet, in my view little or no weight or significance can be placed upon her statement and the file notes due to the somewhat contradictory nature of the file notes and statement and that Huet was not available to be cross examined.
[62] Transcript of proceedings, 27 January 2023, page 11
48.In the absence of an independent witness, I am left with the versions of Brain and Allen. In my view, both gave their evidence to the best of their recollection. In weighing their evidence, I had regard to the fact that the accident now occurred more than 18 months ago, and their memories may have been affected by the passage of time. In my view traffic was heavier than usual and was travelling slower than the posted speed limit of 80 km/h and was travelling around 60 km/h.
49.In order to take the Hopetoun Circuit off ramp in order to go to Deakin, Allen had to merge into the left lane in which Brain was travelling. Brain’s Utility was behind Huet’s Mazda. The distance between Brain’s Utility and Huet’s Mazda is significant. Brain’s evidence was that it was “tight” and that he was “keeping a safe distance.” A “safe distance” is relative to the environment or particular situation in which drivers are operating their vehicles. What might be a safe distance in one environment or situation might not be a safe distance in another. Brain in his original statement at paragraph 23 described the distance as a “car length” but in his second statement he said that the car length was actually the distance between his vehicle and the Astra after the Astra merged. He also said that there was approximately a two second gap between his vehicle and the Mazda prior the Astra merging. He did not recall the Astra left indicator being activated.
50.Allen said that prior to commencing the merge that he saw a break in the traffic in the left lane but does not say how big the gap was. He then says that he activated his left indicator, checked his rear-view mirror; checked for blind spots on his left and then moved into the left lane. In cross examination he said he saw the Utility before he changed lanes and that the space between the Mazda and the Utility was about a “car length plus sufficient space” and that the sufficient space was not determinative upon the Utility slowing. He also remembered about two to three clicks of the indicator before he changed lanes.
51.The above evidence suggests that the merging manoeuvre was done fairly quickly. This would be consistent with the traffic moving at about 60 km/h. I accept that Allen performed the visual checks and activated his indicator prior to merging but only two or three clicks of the indicator suggests that he merged quickly. In my view, the merging was done quickly and Brain (who was in the lane that Allen was merging into) may not have seen the indicator activation particularly if Brain was monitoring the traffic ahead.
52.Was the Astra fully or partly within the left lane before the subject collision occurred? Brain’s original statement was somewhat ambiguous. He said that the Astra was “pretty much established the whole way in the lane” and then in the same paragraph he stated that the Astra was “directly in front of my vehicle”. In his second statement, he stated that it was “approximately two thirds or three quarters” established in his lane. In cross examination, Brain said that both statements said, “pretty much the same thing.” When pressed, he did not agree and explained the main purpose of the second statement was to clarify paragraph 23 of his original statement. Allen in contrast said in his statement that he moved in into the left-hand lane and then he travelled in the lane for about five seconds and did not resile from his evidence even when pressed in cross examination.
53.The parties tendered photographic evidence showing the damage to the vehicles. The photographs show damage across the whole of the front of the Utility and damage across the whole of the rear of the Astra but possibly heavier on the left side. I therefore find that the Astra was wholly in the left lane before the subject collision.
54.Although I have found that the Astra was wholly in the left lane prior to the subject collision, was the collision between Brain and Allen’s vehicles caused by the negligence of Brain or Allen or by a combination of both? Brain and Allen each alleged the other had breached provisions of ARRs. The applicant/cross respondents alleged that Allen had breached ARR 148 and the respondent/cross applicants alleged that Brain had breached ARR 126. As previously mentioned rule 148 provides that a driver who is moving from one marked lane to another marked lane must give way to any vehicle travelling in the same direction as the driver in the marked lane to which the driver is moving and rule 126 provides that a driver must drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle.
55.In my view, both Allen and Brain’s actions or inactions contributed to the cause of the collision. Given the limited space between Brain’s Utility and Huet’s Mazda, even though Allen made some preliminary checks and activated his indicator, he moved into the left lane quickly and did not leave sufficient space between his vehicle and Brain’s Utility. It would also appear that he did not leave sufficient space between his vehicle and Huet’s Mazda as after the initial collision, Allen’s vehicle collided with the rear of Huet’s vehicle, but I do not make any finding with respect to the latter. As there was not sufficient space between his vehicle and Brain’s vehicle after Allen merged into Brain’s lane, it follows that Allen failed to keep a proper lookout and did not take proper care and did not give way to Brain’s vehicle already travelling in the left lane. Having regard to the Stopping Distances Document, there was insufficient space between his vehicle and Brain’s once Allen’s Astra was in Brain’s lane. Allen described the time period before the subject collision as about five seconds, but in my view, it was probably less and certainly not more. As to how much less it is not possible for me to determine, but Allen did not resile from his evidence that after he had merged into the left lane, the traffic in front of him stopped and he braked hard and came to a complete stop and then the subject accident occurred. Once the Astra was merging into Brain’s lane and certainly when it was in his lane, Brain should have slowed his speed then rather than activate his brakes once he saw the brake lights on the Astra activate. By the time Brain activated his brakes (bearing in mind the approximate speed that the vehicles were traveling, and the stopping distances required), it was in my view too late to avoid the subject collision with Allen’s Astra.
56.What then is the relative contribution of Allen and Brain to the cause of the collision? In my view, the applicant/cross respondent was correct in not pressing the “agony of the moment” or “unavoidable accident” submission. The circumstances of the present collision are very different to the circumstances of the situation considered in Reardon.[63] There was no suggestion in the present matter that Brain was attempting to flee or escape some immediate peril or danger when driving his vehicle, the way that he did. The applicant/cross respondents also referred to Steed[64] and that matter very helpfully sets out the processes or steps when considering whether a party may be in breach of their duty of care in various motor vehicle accident -collision scenarios taking into account the Civil Law (Wrongs) Act 2002 (WrongsAct). Steed considered a collision between a reversing motor vehicle emerging from a driveway and a postal motorcyclist delivering mail travelling upon the footpath crossing the driveway (that the motor vehicle was reversing from). After considering provisions of the Wrongs Act, and expert engineering evidence, Her Honour Loukas-Karlsson held that the driver was at fault, but with a deduction of 35% for contributory negligence and that it was “just and equitable” to do so.[65] Justice Loukas-Karlsson referred to Podrebersek v Australian Iron and Steel Pty Limited (Podrebersek)[66] where the High Court held that apportionment is a finding upon a
question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different consideration. It involves an individual choice or discretion , as to which there may well be differences of opinion by different minds.[67]
[63] [2021] ACTCA 4
[64] [2019] ACTSC 36
[65] [2019] ACTSC 36 at [114]-[153]
[66] [1985] HCA 34
[67] [2019] ACTSC 36 at [152] referring to Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34 at [8]
57.Although Steed and Podrebersek were both matters relating to claims for personal injury, the reasoning is equally applicable to matters involving claims for property damage.
58.In my view, after considering the standards of reasonable care and that of proportion and after weighing different considerations, I find that Allen was 60% responsible and Brain 40% responsible for the cause of the subject collision. Therefore, the applicant/cross respondents are successful in their claim, but I consider it just and equitable to reduce the damages recoverable for the wrong by 40%. It therefore also follows that the respondent/cross claimants are also successful in their claim, but in that claim, I consider it just and equitable to reduce the damages recoverable for the wrong by 60% on the same basis. Both the applicant and cross respondent and the respondent/cross applicants are entitled to claim filing fees and interest.
Consideration and findings on whether Allen should pay Wormald’s costs of 27 January 2023
59.Section 48 of the ACAT Act confers a narrow costs power on the ACAT, that is, the power to make only the orders specified in section 48(2) and only in the circumstances specified in that provision and any other applicable legislative provisions.[68]
[68] CIC Australia Ltd v ACT Planning and Land Authority, Mainore Pty Ltd and ACT Civil and Administrative Tribunal [2013] ACTSC 96 at [82] and at [144]
60.Did the respondent Allen cause unreasonable delay or obstruction while the tribunal was dealing with the application? The matter came before the tribunal on 27 January 2023 and was listed for three hours. In Kidman, the matter was listed for one day, at the commencement of the hearing the tribunal raised problems that might occur as a result of the respondent being represented by a lawyer who was also the only witness for the respondent. The problems became more apparent as the hearing progressed and the matter was ultimately adjourned to a later date to allow the respondent to engage independent legal counsel.[69] In that matter, the tribunal found that the respondent had caused unreasonable delay while the tribunal was dealing with the matter and that it was appropriate that the respondent pay the applicant’s costs occasioned by the adjournment.[70] On appeal, the Appeal Tribunal in Casino Canberra[71] agreed with the original tribunal’s concerns and found that in the particular circumstances it was not appropriate for the lawyer to act as counsel in the proceedings[72] and that the original tribunal was not in error in their reasoning and awarding of costs.[73] In the matter of D’Silva and Anor v Canberra Strata Pty Ltd and Anor,[74] the tribunal after examining a number of earlier tribunal decisions, found that a party in the proceedings had caused some delay in appropriately dealing with the proceedings , but it was not unreasonable delay for the purposes of the imposition of costs under section 48(2).[75]
[69] [2020] ACAT 50 at [71]-[73]
[70] [2020] ACAT 50 at [77]
[71] [2022] ACAT 22
[72] [2022] ACAT 22 at [252]
[73] [2022] ACAT 22 at [278]
[74] [2022] ACAT 79
[75] D Silva & Anor v Canberra Strata Pty Ltd & Anor [2022] ACAT 79 at [32]
61.In the present matter, the issue concerning the “cross claimant’s ownership” was put in issue in the response dated 5 December 2022 to the original counterclaim dated 18 October 2022. The response also pleaded that “strict proof was required.”[76] The respondent/cross claimant acknowledged the same and acknowledged that it was “something that should have been addressed earlier.”[77]
[76] Response dated 5 December 2022 at Annexure A at [1]
[77] Transcript of proceedings, 27 January 2023, page 25
62.Although there was some discussion at the hearing on 27 January 2023 whether the matter could possibly continue past the allocated hearing time, the matter was ultimately adjourned. However, during the allocated hearing time, the tribunal was advised that agreement had been reached on the quantum of each claim; a number of documents including statements were filed by both parties and as mentioned previously, directions as to future conduct were made by consent.
63.Since 27 January 2023, a number of further documents were filed. The applicant filed the further statement of Brain; statements of the instructing solicitor and of Huet; photographs of the subject accident taken by Brain; a Wormald Incident and Investigation Form; and an AFP report (originally submitted by Brain). The respondent filed the statement from Maxton and statements from Allen’s parents. As a result of agreement reached between the parties, Allen’s parents and some other witnesses did not have to give evidence.
64.Notwithstanding the applicant’s/cross respondents’ submission that they could have concluded the matter on 27 January 2023 and the respondent/cross applicants’ concession that some things “should have been addressed earlier”; in my view, the matter would most likely not have concluded on that day and even if the respondent/cross claimants’ actions caused “delay”, the delay was not “unreasonable”. No explanation was provided why some of the documents such as the police report made by Brain were not available on 27 January 2023. The applicant/cross respondent did not press that the respondent/cross applicant caused an “obstruction before or while the tribunal was dealing with the matter” and as a result, I do not consider that aspect of section 48(2)(b) further.
65.For the reasons set out above the applicant/cross respondents’ application for costs for 27 January 2023 pursuant to section 48(2)(b) is dismissed.
Conclusion
66.In application XD 798/2022, the respondent is to pay the applicant the amount of $3,602.87 plus interest to date of decision. This is the original amount claimed of $5,664.78 for repairs and assessment fee plus filing fees of $340 totalling $6,004.78 together with interest on and from the date of the accident being 16 November 2021 to the date of this decision less the reduction of 40% for contributory negligence.
67.In application XD 93/2023, the respondents are to pay the applicants the amount of $1,765.60 plus interest to date of decision. This amount is the original amount claimed of $4,244 for pre-accident value less salvage plus towing and filing fees of $170 together with interest on and from the date of the accident being 16 November 2021 to the date of this decision less reduction of 60% for contributory negligence.
Order
68.In application XD 798/2022:
(a)The respondent is to pay the applicant the amount of $3,602.87 plus interest to date of decision within 28 days.
(b)The applicant’s application for costs for 27 January 2023 is dismissed.
69.In application XD 93/2023:
(a)the respondents are to pay the applicants the amount of $1,765.60 plus interest to date of decision within 28 days.
(b)The parties in both application XD 798/2022 and XD 93/2023 have liberty to relist for further mention with seven days’ notice with respect to calculation of interest in the absence of agreement between the parties.
Notes
70.The tribunal notes that as a result of the orders above, the respondent/cross applicants are to pay the applicant/cross respondent an amount of $1,837.27 plus statutory interest on and from 16 November 2021, such amount is the difference between the amount awarded in favour of the applicant/cross respondents and the amount awarded in favour of the respondent/cross applicants.
………………………………..
Member W Hawkins
| Date(s) of hearing: | 24 January 2023, 11 May 2023 |
| Counsel for the applicant/cross respondent: | Athol Opas |
| Solicitors for the applicant/cross respondent: | Margaret George, Ligetti Partners |
| Solicitors for the respondent/cross claimants’: | Katherine Richards and Rebekah Maxton, Turks Legal |
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