Zendehdel v AAI Limited t/as AAMI
[2023] NSWPIC 143
•5 April 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Zendehdel v AAI Limited t/as AAMI [2023] NSWPIC 143 |
| Claimant: | Leila Zendehdel |
| insurer: | AAI Limited t/as AAMI |
| Member: | Belinda Cassidy |
| DATE OF DECISION: | 5 April 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for damages; separate hearing on liability with assessment on the papers requested by the parties; claimant injured in collision at intersection, saying she stopped at the stop line, waited for 4 – 5 seconds before checking all was clear and proceeding into intersection; claimant alleged insured was speeding; evidence for independent witness driving behind insured was that the claimant did not stop before proceeding into intersection, second independent witness also said claimant did not stop and did not look; expert evidence from both sides, insurer’s expert points out errors in claimant’s expert report likely to affect calculations of speed, insurer’s expert preferred; Held – insured did not breach her duty of care to claimant, accident caused by claimant failing to give way at the intersection, failing to observe presence of insured; claimant had no entitlement to damages and costs not awarded in favour of claimant. |
| determinations made: | CERTIFICATE OF DETERMINATION In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. On the issue of liability for the claim, AAMI’s insured owed a duty of care to the claimant but did not breach that duty of care. 2. The claimant has no entitlement to damages. 3. No costs are assessed in favour of the claimant. |
STATEMENT OF REASONS
INTRODUCTION
Leila Zendehdel was involved in a motor accident on 22 May 2020. Ms Zendehdel collided with a vehicle driven by Eve Ward at the intersection of Heathland / Shen Street and Alex Avenue in Schofields.
On or about 9 June 2020, Ms Zendehdel made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against AAMI, the third-party insurer of Ms Ward’s vehicle because Ms Zendehdel believes Ms Ward caused the accident. It appears that statutory benefits were paid by AAMI until 26 weeks after the accident. At that time, AAMI denied liability to pay ongoing benefits on the basis Ms Zendehdel was wholly or mostly at fault.[1] That decision was the subject of an internal review[2] but that dispute has not been challenged.
[1] The liability notice is dated 15 September 2020 and is document R4 at page 14 of the insurer’s bundle of documents.
[2] The internal review decision is dated 27 January 2021 and is document R7 at page 29 of the insurer’s bundle of documents.
Ms Zendehdel subsequently made a claim for damages against AAMI and this claim has also been denied on the basis that Ms Ward owed a duty of care to the claimant but did not breach that duty of care to the claimant.[3]
[3] The liability notice for the damages claim is dated 19 April 2022 and is document R5 at page 21 of the insurer’s bundle of documents.
Ms Zendehdel referred her claim for damages to the Personal Injury Commission (Commission) for assessment and the proceedings have been allocated to me.
The parties have requested a separate hearing on the issue of liability and have also requested the issue of liability be determined on the papers.
LEGISLATIVE FRAMEWORK
The MAI Act provides a scheme for the compulsory insurance of vehicles registered in New South Wales and a scheme of statutory benefits (set out in Part 3) and compensatory damages for persons injured in motor accidents in New South Wales.
The quantum of damages are regulated by Part 4 of the MAI Act but otherwise issues of liability are determined in accordance with the provisions of the Civil Liability Act2002 and the common law.
SUBMISSIONS
Claimant’s submissions
The claimant’s first submissions were dated 9 May 2022[4] and say:
[4] Document A5 in the claimant’s bundle.
(a) the insurer is not justified in saying the insured did not breach her duty of care [6];
(b) there is an issue as to excessive speed on the part of the insured [7];
(c) the claimant says she slowed down and stopped for four to five seconds and observed the insured 100 metres away before proceeding into the intersection [8];
(d) the claimant was halfway through the second lane when she collided with the insured vehicle and had the insured been travelling at 40km per hour she would have seen the claimant and slowed down to avoid or minimise the impact [9];
(e) “the impact of the collision is not consistent with the insured’s vehicle travelling at 40 kms per hour” and that the movement of the vehicles after impact suggests the insured was driving at a speed of more than 40km per hour [10];
(f) this is a matter for contributory negligence [11];
(g) the speed limit was 40km per hour and the insured’s “excessive speed” made a significant causal contribution to the accident [12];
(h) the case of Ayre v Swan[5] is relevant where the plaintiff who was riding at excessive speed contributed 80% to the cause of the accident, and
(i) the claimant was awaiting additional evidence including from the NSW police.
[5] [2019] NSWCA 202.
The claimant’s further submissions are dated 19 August 2022.[6] The claimant had served the report of Zoran Bakovic dated 14 August 2022 and said:
[6] Document AD5 in the Commission’s electronic file.
(a) the claimant is not wholly at fault but is responsible for some contributory negligence [5];
(b) the speed of the insured was 59.96km per hour which is above the speed limit and the speed of the claimant’s vehicle was 39.64km per hour which is below the speed limit [6];
(c) Mr Bakovic says that if the insured had been driving at the speed limit of 50km per hour the collision would not have occurred because the claimant and the insurer would not have been at the same point on the roadway at the same time [8];
(d) had the claimant been travelling at a constant speed of 40km per hour, and not stopped at the stop line, the collision could also have been avoided if the insured was travelling at 50km because the claimant would only have collided with the rear of the insured vehicle [8];
(e) both drivers were at fault because if the claimant had given way and the insured been driving at the speed limit, the accident would not have occurred [9];
(f) the parties are equally to blame [10];
(g) the claimant maintains that she stopped at the stop line, looked in both directions and the accident could have been avoided if the insured was traveling at the speed limit [11];
(h) the claimant continued to rely on the decision of Ayre v Swan and the comments of the Court in relation to excessive speed;
(i) the claimant suggests her contributory negligence should not be greater than 61% [17];
(j) the lay witnesses relied on by the insurer should not be preferred because they are unable to make findings as to speed and distance [18], and
(k) the claimant was charged with dangerous driving but pleaded guilty to negligent driving. She elected to plead guilty and was not found guilty [21] due to the financial implications of proceeding to a hearing.
The claimant’s final submissions are dated 30 March 2023[7] and including the following:
[7] Document AD17 in the Commission’s electronic file.
(a) the police records should be given little weight due to the conflicting accounts provided by witnesses and because experts have provided opinions on speed, the mechanism of the accident and liability [5];
(b) the claimant’s conviction by the police is of little relevance in determining civil liability for the accident [6];
(c) the claimant relies on the case of Sibley v Kais[8] and says that a breach of the road rules does not determine liability but that “the obligation of each driver of two vehicles approaching an intersection is to take reasonable care” [7] – [9];
(d) the insured driver did not have sufficient control of her vehicle to be able to stop or otherwise avoid an impact and had she not been speeding the collision could have been avoided [10];
(e) the insured driver had a duty to keep a proper lookout and be aware of what was happening in the vicinity as per Manley v Alexander[9] [11];
(f) the insured driver breached her duty of care to the claimant because she was speeding at 10km per hour above the speed limit [12];
(g) the claimant is similar to the plaintiff in Sibley in that she checked for oncoming vehicles and “having regard to her assessment of the distance of the insured driver’s vehicle”, the claimant entered the intersection unaware the insured was speeding [14];
(h) the claimant maintains she stopped at the stop line and looked in both directions before proceeding and that the insured is liable to a greater extent because she was speeding [16], and
(i) in Sibley the court reduced damages by 25% on the basis the plaintiff did not look for traffic coming from his left before entering an intersection and that therefore her damages should be reduced by no more than 25% [17].
[8] [1967] HCA 43 (Sibley).
[9] [2005] HCA 79 (Manley).
Insurer’s submissions
The insurer lodged initial submissions[10] which at [8] and [14] – [22] requested a separate hearing on liability and at [23] – [27] that the matter be heard on the papers.
[10] These submissions are dated 9 June 2022 and are found at page 1 of the insurer’s bundle.
The insurer says at [11] that there are two independent witnesses who support the claimant being at fault (Mr Herron and Ms Hall) because Ms Zendehdel failed to give way at a stop sign.
The insurer says at [12] that the police laid charges against the claimant although the outcome of those charges is not known.
The insurer’s further submissions dated 22 November 2022[11] maintain the denial of lability and say:
[11] Page 83 of the insurer’s bundle.
(a) the claimant did not stop at the stop sign [4];
(b) relying on the insurer’s expert, the speed of the claimant’s vehicle was about 50km per hour and the insured’s 47km per hour [5];
(c) the claimant was travelling faster than Ms Ward [7];
(d) the claimant is wholly at fault as the accident would not have occurred if she had stopped before heading into the intersection [11];
(e) there are issues with the report relied on by the claimant namely the resting positions of the vehicles are incorrect [13] and the claimant’s vehicle has been drawn out of scale [14] which has caused a “calculation bias” in the opinions as to speed [15];
(f) the claimant’s expert discounts the claimant’s version of events that she saw Ms Ward’s vehicle when it was 100m away [21];
(g) both drivers had an unobstructed line of sight [23];
(h) Ms Ward was only 10m north of the impact and had less than a second to react before the impact occurred. She had insufficient time and distance to avoid the crash [26];
(i) the police records indicate that the claimant was trying to find somewhere to park to check her mother’s paperwork and “a strong inference could therefore be drawn, that the claimant was distracted at the time” [31];
(j) the claimant told the police she stopped and checked but there was not any car visible to her, yet the insurer’s expert says there was a clear 130m view [32];
(k) the claimant told the police she saw the insured vehicle 100m away but it is not probable for Ms Ward to be that far away [33];
(l) the claimant was charged with dangerous driving occasioning grievous bodily harm however pleaded guilty to negligent driving occasioning grievous bodily harm [35];
(m) the cause of the accident was the claimant’s breach of duty of care and her failure to stop at the stop sign [38], and
(n) there is no evidence that Ms Ward was speeding [40].
REVIEW OF THE EVIDENCE
Claim form and first responders
The claimant’s application for personal injury benefits was signed as true and correct on 9 June 2020 and provides this description of the accident:
“l was driving with my mother along Heathland Avenue, Schofields at the legal speed of 50km/h when I approached Alex Avenue, Schofields, I stopped at the stop sign and checked tor cars when I was sure of no cars approaching I continued to Shen Street passing Alex Av and a car with an unimaginably high speed hit me from the left side of my car and pushed me all the way to a light stand. This accident severely injured me and my mother.”
The claimant’s application for damages under the common law was dated 22 January 2022 but adds no additional details about the accident.
The claimant relies on the ambulance report in relation to her treatment. This includes a history from the claimant who was “alert … talking in full sentences” and she was said to be the driver of a sedan struck on the right hand side by an “oncoming vehicle at medium speed”.
The claimant also relies on the police report which states:
(a) the speed limit was 50km per hour;
(b) the claimant was travelling at 30km per hour before the accident;
(c) Ms Ward was driving at 50km per hour before the accident, and
(d) the claimant failed to give way at a stop sign.
The insurer relies on a statement form Neil Herron given to the police on 18 June 2020. Mr Herron was travelling directly behind Ms Ward on Alex Avenue. He says:
“As we approached the intersection of Shen Street and Alex Avenue I saw in my peripheral vision [Ms Zendehdel’s car] come from out of the street on my right and drive straight across Alex Avenue. She was travelling at about 60 kilometres an hour and did not look like it tried to stop or slow down before entering the intersection.”
Mr Herron says he is very familiar with the intersection and knows there is a stop sign and that Ms Zendehdel’s car was going too fast to stop for the stop sign. He says when the crash happened, he was about 10 metres behind Ms Ward. He stopped afterwards and called triple zero. He then left the scene but left his details with Ms Ward. When he got home, he drew a diagram of the accident scene (reproduced below) and subsequently gave a statement to the police.
[image unable to render]
AAMI retained the services of MJM Corporate Risk Services to undertake an investigation of the circumstances of the accident[12] during the course of a claim made by Ms Ward. The investigator spoke with the police officer Senior Constable Turner, obtained the statement from Mr Herron and noted that “the insured driver’s daughter … informed us that [Ms Zendehdel] does not wish to provide a statement or assist us”.
[12] The report dated 15 December 2020 is document R9 at page 48 of the insurer’s bundle.
The MJM report notes the speed limit is 50km per hour in each direction on both sides of the intersection.
The interview with Senior Constable Turner was taken on 26 November 2020. She says[13]:
[13] The numbers in square brackets correspond to the questions and answers in the statement.
(a) she arrived at the collision scene 50 minutes after the accident. Ambulance and Fire and Rescue were there freeing Ms Ward’s passenger from the car [Q11];
(b) both drivers had been taken to hospital at that stage [Q12];
(c) there were no skid marks [Q14];
(d) the speed limit was 50km per hour [Q20];
(e) Ms Ward and the witness behind her said they were travelling at about 40km per hour and Ms Zendehdel said she was travelling at about 50km per hour [Q26];
(f) there were two passengers and a baby in the back of Ms Ward’s car and a passenger in the back of Ms Zendehdel’s car [Q30];
(g) Ms Ward gave her statement to police saying she had stopped at traffic lights before the intersection where the accident happened and was “travelling slow towards the Alex Avenue”. When she was about 100m from the previous intersection “I saw something coming toward me and soon collided with my vehicle.” Ms Ward said she was travelling at 40km per hour before the collision but did not brake because “I didn’t see the collision coming” [Q40].
(h) Mr Herron’s statement was read out by the police officer [Q42];
(i) Ms Hall’s statement was read out [Q42]. She was travelling north in Alex Avenue (in the opposite direction to Ms Ward) and had slowed down to turn left into Heathland Avenue when she saw Ms Zendehdel approach the intersection and drive through the stop sign at a speed which she estimated at about 30km per hour. She says Ms Zendehdel started to accelerate when she was one to one and a half metres from the stop line. Ms Hall says:
“I saw that the driver was a female and she was looking at me through the driver’s window. I was looking at the driver and she did not turn to look at the other lanes of traffic. I was looking at this driver because she was in my direct line of sight as I was approaching the corner”;
(j) the claimant’s statement to police is reported at [Q43]. She said “I stopped completely and close to the traffic light … I noted a white car run, driving towards me. He was speeding and he couldn’t, he didn’t even brake”. The claimant said she was on the way to her mother’s heart specialist but needed to stop and check her mother’s paperwork. She said when asked if she was watching the road “I checked both sides and then I was going straight through”. She also said the white car was 100 metres away when she first saw it and that she was doing 50km just before the collision;
(k) the claimant said she stopped before she entered the intersection for four to five seconds. The police officer put to her that other witnesses had said she did not stop but Ms Zendehdel said she did [Q44], and
(l) Ms Ward’s daughter gave a statement, but she had not seen anything as she was trying to settle her baby. She did say she has asked her mother to drive slowly because she had her finger in her son’s mouth trying to soothe him.
The claimant relies on the records from the Police provided in response to a Government Information (Public Access) Act application.
On 15 July 2020 the police spoke with the claimant with someone acting as an interpreter and that “during the conversation Zendehdel informed police that she does not have much recollection of the collision however does recall ‘a car travelling at high speed’ before the impact”.
The claimant attended Riverstone police station on 1 August 2020 and with an interpreter gave a lengthy interview to the police. She said “on several occasions” that she stopped for four to five seconds before entering the intersection.
In the claimant’s recorded interview, she said at [16] she saw the other car close to the traffic light and it appears she thought she could get across the intersection. She also says at [22] that she was travelling at 50km per hour. She says she saw the stop sign [143] and that she looked at her speedometer just before she got to the intersection, and she was “still in fifty” [145] – [148] and she saw the other car roughly 100 metres away [152]. She then said she was stopped when she first saw the other car [156], [160].
The police also record that according to Ms Ward she did not see the claimant’s vehicle until the collision occurred.
Expert’s report
Mr Bakovic – claimant
Mr Bakovic’s report is dated 14 August 2022. He appears to have been provided with all the relevant documentation available at that time. He examined the scene and in particular provided photographs from inside his vehicle of the likely view that both drivers would have had:
(a) photograph 7.4 clearly shows the stop sign on the approach to the intersection and 7.6 shows the view the claimant would have had of the approach of the insured vehicle from the stop line. There is a clear view up the street and to the left
(b) photographs 7.10 and 7.11 show the view Ms Ward would have had of Alex Avenue 50 metres and closer to the collision location. If a car was stationary at the stop line it would have been clearly seen. A moving, approaching car could have been seen in Heathland Avenue close to the intersection but at 50 metres away there is a house being built which would block the view further down the street.
Mr Bakovic says:
(a) the collision was a 90 degree collision [A1];
(b) the collision speed of the claimant’s vehicle was close to 40km per hour and the impact speed of the insured vehicle was close to 60km per hour [Q2];
(c) if the claimant was travelling at 40km per hour she would have reached the point of collision in 0.8 seconds however if she had stopped and accelerated, she would have reached the point of the collision in 2.5 seconds. If she had stopped and the insured was 100 metres away when first seen, the insured would have had to be driving at 144km per hour to cover the distance to the point of the collision. It was therefore not probable that Ms Ward was 100 metres away when the claimant first saw her [Q3];
(d) the insured was about 42 metres away from the collision point when the Honda was at the stop line, therefore Ms Ward’s speed at 10km more than the speed limit contributed to the accident because if she had been travelling at a slower speed she would not have got to the point of the collision at the same time as the claimant [Q4], and
(e) the initial cause of the collision was the claimant who failed to give way but the speed of the insured contributed to the accident [Q6].
Ms Gaffney - insurer
The insurer relies on a report from Ms Gaffney of William Keramidas and Associates dated 6 October 2022.
The main features of the report and findings are:
(a) a driver stopped on Heathland Avenue has visibility to the left, up Schofields Road to the traffic lights 130m away (page 18 point 30);
(b) visibility on Alex Avenue of Heathland Avenue on the right is currently limited due to the houses and fences (photographs page 19) and would have been partially obstructed at the time by temporary fencing;
(c) Alex Avenue is the “priority road” (page 22 point 5);
(d) the claimant was driving a Honda Accord and Ms Ward a Nissan X-trail (page 23). Both sustained significant damage;
(e) the collision was a perpendicular (90 degree) collision where the front of the Nissan collided with the passenger side of the Honda (page 28), the impact caused the vehicles to rotate;
(f) after analysis of the crash dynamics, the author states the Honda was driving at about 55km per hour at impact whereas the Nissan was driving at about 40km per hour (page 34) and that it is more likely both vehicles were not travelling in excess of the speed limit (page 35);
(g) the distance from the stop line to the point of impact was about 9.3m and the claimant’s vehicle could not have reached the pre-impact speed of 50 – 55km per hour over that distance which supports a conclusion that the claimant could not have stopped at the stop sign as she has said she did (page 37);
(h) Ms Ward would not have expected the claimant to present a threat until she was moving into the intersection. The typical response time for an unalerted driver is 1.1 seconds and at 50km per hour a vehicle travels 15.3 metres during this time and braking takes about 2 seconds and a distance of 14 metres at 50km per hour (page 39 point 5). The insured would have had 0.7 seconds in time to react to the claimant’s car as it passed the stop sign which is insufficient time to react, and
(i) it is improbable for the claimant to have stopped and not seen the approach of the insured.
Ms Gaffney identifies a number of issues with the report of Mr Bakovic as follows:
(a) the resting places he has attributed to each of the vehicles is incorrect when the scene photographs are considered;
(b) the vehicles have been drawn slightly out of scale with the claimant’s vehicle 10 – 20% larger than it should be;
(c) this has created a calculation bias favouring a higher speed for Ms Ward’s vehicle and a lower speed for the claimant’s car, and
(d) Mr Bakovic has not included the mass of the occupants within the vehicle which has affected his momentum analysis.
Ms Gaffney says that a reasonable and prudent driver would have stopped at the stop line but that there was insufficient time and distance for Ms Ward to do anything to avoid the crash.
Ms Gaffney provided a short supplementary report dated 27 February 2023[14] after receiving the police records and the property damage files. Ms Gaffney says:
(a) the police documents do not cause her to alter any of her opinions;
(b) the property damage files include an exchange between Ms Zendehdel’s daughter and the insurer suggesting her mother “is not sure where [Ms Ward] came from”;
(c) the photographs of the claimant’s damaged vehicle were clearer than the police photographs and Ms Gaffney considered she may have underestimated the speed of the claimant’s collision with the light pole by 1 – 2km per hour, and
(d) none of her opinions or conclusions have been altered rather she suggests they reinforce her opinions.
CONSIDERATION OF THE ISSUES
[14] Document AD17 in the Commission’s file.
Whose evidence do I accept?
There are two statements from independent witnesses. While I agree with the claimant’s submissions that their evidence as to speed and distance is not reliable, there are certainly factual matters that they have given evidence about that in my view are plausible and consistent.
There are two expert reports. The claimant’s expert provided his report first and the insurer’s expert has provided a criticism of the claimant’s expert’s assumptions which casts doubt, in my view, on the accuracy of his evidence and the opinions he has expressed in his report in particular an under calculation of the claimant’s speed and an over calculation of the insured’s speed.
The insurer’s expert’s supplementary report suggests she may have under-estimated the pre-impact speed of the claimant’s vehicle which again casts doubt in my mind on the evidence of Mr Bakovic and his estimate of the speed of the claimant’s vehicle as well as the insured’s vehicle.
The claimant’s expert has not responded or otherwise addressed the criticisms in the insurer’s expert’s report or the supplementary report from Ms Gaffney.
In my view the report of Ms Gaffney is accurate and more complete than that of Mr Bakovic and should therefore be accepted.
How fast were the vehicles travelling?
I do not accept the evidence of Mr Bakovic as to the speed of the two vehicles because of the inaccuracies in his report which have not been addressed by him.
I accept the evidence of Ms Gaffney that both the claimant and Ms Ward were likely travelling at or near the speed limit. I accept that Ms Zendehdel was travelling at about 50 – 55km per hour which is consistent with her initial evidence to the police that she had looked at her speedometer before reaching the intersection and she was travelling at 50km per hour when she looked.
I accept the evidence of Ms Gaffney that Ms Ward was travelling at approximately 40km per hour at the time of the accident. This is consistent with the evidence of Mr Herron who was driving behind Ms Zendehdel. He had been travelling behind her since the traffic lights at Schofield’s Road and says she was travelling “very slowly”. I do not accept that Ms Ward was speeding or travelling as suggested by the claimant at “excessive” speed.
I note the evidence of Ms Ward and her daughter that her grandson was unsettled, and Ms Ward’s daughter had asked her mother to drive carefully as her finger was inside her child’s mouth trying to soothe him. It is in my view consistent that Ms Ward would, in those circumstances drive at or below the speed limit.
Did the claimant stop at the stop sign?
The claimant has said several times in her statement to the police that she stopped and waited at the stop sign for four or five seconds before proceeding into the intersection.
I do not accept this evidence because:
(a) Ms Hall says the claimant drove into the intersection without stopping;
(b) Mr Herron who was travelling behind Ms Ward said the claimant came out fast and directly into Ms Ward’s vehicle and did not stop at the stop sign;
(c) if Ms Zendehdel had stopped and looked, she would have seen Ms Ward approaching as there was a clear line of sight for more than 100 metres;
(d) Ms Gaffney says that if the claimant had stopped, she would have been unable to reach the pre-impact speed that has been calculated by the experts, and
(e) Ms Gaffney’s opinion that the claimant did not stop but proceeded through the intersection.
Did the claimant look before entering the intersection?
The claimant told the police in her interview with them that she checked carefully before moving into the intersection.
I do not accept Ms Zendehdel’s evidence about this because:
(a) Ms Hall said she was looking at the claimant and that the claimant did not check for cars and Ms Zendehdel appeared to be accelerating through the intersection;
(b) Mr Bakovic discounts the claimant’s evidence that Ms Ward was 100 or more metres away when the claimant saw her which casts doubts on the claimant’s evidence generally, and
(c) the evidence from Ms Gaffney and the claimant’s expert’s photograph show there is a clear view from the stop sign to the left from where Ms Ward was coming from.
I do not accept that Ms Zendehdel carefully looked both ways before entering the intersection because if she had, she would have seen Ms Ward’s Nissan X-trail. It was there to be seen as there was good visibility for up to 130 metres.
It is possible that the claimant did look to her left and saw the approach of Ms Ward’s vehicle but thought she could get across the road and accelerated in order to do so, as witnessed by Ms Hall.
Was Ms Ward keeping a proper lookout?
Ms Ward did not see the claimant until shortly before the moment of impact. Should
Ms Ward have seen the claimant earlier than she did, as she was approaching the intersection, and take some action to avoid this accident?
In accordance with the insurer’s expert, Ms Ward would have been able to see someone stopped at the stop line for about 100 metres before the intersection. Of course, Ms Zendehdel was not stopped but moving. She was moving, as I have found, at about 50km per hour. Mr Herron, who was 10 metres behind Ms Ward says that he saw “in my peripheral vision” Ms Zendehdel come out from the street on his right.
Ms Ward says, “as soon as I was entering Alex Ave about 100 mts from Schofields Rd I saw a some thing coming towards me and soon collided to my vehicle”.
The experts state that the claimant had traversed somewhere between 9 and 10 metres from the stop sign into the intersection in less than one second. Ms Gaffney says this is an insufficient time and distance to allow for a threat to be perceived and take action to avoid the threat. Ms Gaffney also expressed the view that Ms Zendehdel would not have been perceived by Ms Ward as a threat until she moved into the intersection.
I do not accept that Ms Ward was not keeping a proper lookout. Her evidence and the evidence of Mr Herron is that Ms Zendehdel appeared suddenly, and Ms Hall said she appears to have accelerated into the intersection. I accept the evidence of Ms Gaffney that Ms Ward had insufficient time to react and respond before the accident occurred and there was nothing she could have done to avoid the accident once the threat materialised.
Did Ms Ward breach her duty of care to the claimant?
The claimant has referred to various cases in her submissions. I am reminded that Justice Windeyer in Teubner v Humble[15] said at [8]:
"I should add that we were referred by counsel to a number of decisions in other cases of road accidents. But decisions on the facts of one case do not really aid the determination of another case. Observations made by judges in the course of deciding issues of fact ought not to be treated as laying down rules of law. Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application that a pedestrian is always entitled, or that a motorist is always obliged, to act in some particular way. That would lead to the substitution of a number of rigid and particular criteria for the essentially flexible and general concept of negligence."
[15] (1963) 108 CLR 491.
The claimant relies on Ayre. That was the case of a motor cyclist who was travelling behind a vehicle. He had moved out from behind that vehicle in order to overtake it at the time when Ms Ayre was turning right in front of both the truck and the motorcycle. While Ms Ayre was found to have breached her duty of care for failing to slow down or stop to wait for a safe turn, the claimant’s culpability was assessed at 80% for travelling at more than 30km per hour above the speed limit. This case is of limited relevance because I have found Ms Ward was not speeding and she was not speeding excessively.
The claimant has also referenced Manley, a case which involved the driver of the car at night who was aware of the claimant’s friend standing next to the road and was keeping a lookout for any danger he presented, but who did not see the claimant lying on the road (in dark clothing) and ran over him. A breach of duty was found on the part of the defendant driver and the claimant’s responsibility assessed at 70%. The majority of judges said,
“But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.”
The claimant also took me to the High Court’s decision in Sibley where the court held drivers must not simply assume other drivers will obey the road rules and that the primary consideration when determining negligence is whether the driver acted reasonably in all the circumstances.
In Derrick v Cheung[16] the defendant motorist was driving at 45 – 50km per hour in a line of traffic in Victoria Road Chatswood when the infant claimant emerged suddenly onto the roadway from between two parked cars. The Court said at [13]:
“Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence. That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care.”
[16] [2001] HCA 48.
The three cases of Manley, Sibley and Derrick support the proposition that a driver has a duty of care to other drivers and must drive reasonably, not perfectly, aware of what is happening about and around them and alive to the reality that other drivers will not always follow the road rules. But the test is one of reasonableness in all the circumstances of the particular case.
Ms Ward was proceeding along Alex Avenue with right of way. She was travelling within the designated 50km per hour speed limit and at least 10 kms per hour below it, in conformity with the traffic flow including Mr Herron who was behind her. She was exercising reasonable care in the manner in which she drove her vehicle. She did not see Ms Zendehdel until just before impact and would have had, on the expert’s evidence, no reason to anticipate a threat and no time to react and avoid the accident once that threat materialised.
I am satisfied that the cause of this accident was the claimant’s failure to give way at the stop sign on Heathland Avenue. The claimant did not stop at the stop line, did not check for vehicles coming down Alex Avenue and proceeded into the intersection when it was not safe to do so.
CONCLUSION
Ms Zendehdel has not satisfied me that Ms Ward has not acted otherwise than in accordance with reasonable care to her fellow road users.
As I have found that Ms Ward did not breach her duty of care to Ms Zendehdel it follows that the claimant has no entitlement to damages.
I will issue a certificate of assessment as to liability and, as the claimant has been unsuccessful, I will not award costs in her favour.
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