Zheng v Wallace

[2015] NSWSC 3

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Zheng v Wallace [2015] NSWSC 3
Hearing dates:	21, 22, 23, 24 July 2014
Decision date:	21 January 2015
Jurisdiction:	Common Law
Before:	Price J
Decision:	Verdict and judgment for the plaintiff against the defendant in the sum of $606,473.60.
Catchwords:	NEGLIGENCE – motor vehicle accident in Western Australia – plaintiff’s failure to give way to traffic travelling on a highway – disagreement in expert evidence – whether defendant breached his duty of care after the plaintiff’s vehicle moved off from the give way line – whether defendant breached his duty of care before the plaintiff’s vehicle moved off the give way line – whether court was bound to follow decisions of NSW Court of Appeal – CONTRIBUTORY NEGLIGENCE – consideration of s 5K CLA (WA) – objective test – whether capacity of a heavier vehicle to cause greater damage was relevant in the circumstances – apportionment of culpability
Legislation Cited:	Civil Liability Act 2002 (WA), ss 5B, 5C, 5K Motor Vehicle (Third Party Insurance) Act 1943 (WA)
Cases Cited:	Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424 Warth v Lafsky [2014] NSWCA 94; (2014) 66 MVR 445 Marien v Gardiner [2013] NSWCA 396; (2013) 66 MVR 1 T and X Company Pty Ltd v Chivas [2014] NSWCCA 235; (2014) 67 MVR 297 Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 Farrah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Town of Port Hedland v Hodder (No 2) [2012] WASCA 212; (2012) 294 ALR 315 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529 Nominal Defendant v Meakes [2012] NSWCA 66; (2012) 60 MVR 380
Category:	Principal judgment
Parties:	Yin Fan Zheng (Plaintiff) Peter Townsend Wallace (Defendant)
Representation:	Counsel: Mr CT Barry QC with Mr J Davidson (Plaintiff) Mr KP Rewell SC (Defendant) Solicitors: Slater & Gordon Lawyers (Plaintiff) McInnes Wilson Lawyers NSW (Defendant)
File Number(s):	2012/378325

Judgment

Background

1. His Honour: At approximately 4.39pm on Sunday 6 December 2009, Peter Townsend Wallace (the defendant) was driving a T904 Kenworth Prime Mover registration number 631859, which was towing two empty B-double trailers (conveniently collectively referred to as the ‘prime mover’). The prime mover was being driven in a northerly direction along the Great Northern Highway, Middle Swan in the State of Western Australia, towards the intersection of the highway with Dale Road. This was a T-intersection on the defendant’s left.

2. Yin Fan Zheng (the plaintiff) was driving a Toyota Camry sedan registration 1DCR036 (conveniently referred to as the ‘Camry’) in an easterly direction along Dale Road. There was a give way line painted on Dale Road at the T-intersection. The line was operative for vehicles that were travelling in an easterly direction on Dale Road. It is not in dispute that the plaintiff was obliged to give way to the defendant’s prime mover as it was travelling on the highway. The plaintiff was required to give way to traffic travelling on the highway whether that traffic was travelling north or south.

3. At the intersection, the plaintiff attempted to make a right hand turn into the Great Northern Highway in order to travel in a southerly direction. There was a continual line of traffic in the southbound lane.

4. It was daylight at the time and the roadway was dry. The combined weight of the prime mover was approximately 32 tonne.

5. The front of the prime mover collided with the right hand side of the Camry. The plaintiff suffered serious injuries as a result of the collision including a severe traumatic brain injury. She was 41 years old.

6. All of the above facts are uncontroversial.

7. This judgment is confined to the issue of liability, as agreement has been reached between the parties as to the plaintiff’s damages in the sum of $3,032,368 plus fund management costs.

8. The matters for decision by the court are:

(i) Whether the defendant breached his duty of care; and

(ii) If the defendant breached his duty of care, the assessment of the plaintiff’s contributory negligence.

The pleadings

9. On 15 March 2013, the plaintiff commenced proceedings in this court by way of a statement of claim in which she alleges that from the defendant’s elevated position in the prime mover he had a clear line of sight to observe the movements of the Camry. The plaintiff claims that as she reached the intersection of Dale Road and the highway, she stopped the Camry at the give way line. After stopping at the give way line, the plaintiff claims that she moved the Camry slowly into the intersection to negotiate a right hand turn and join the southbound line of traffic on the highway.

10. The plaintiff claims that it was open to the defendant to modify the movement of the prime mover in a timely fashion as the Camry moved slowly into the intersection. The plaintiff claims there was a foreseeable risk of injury which was not insignificant and a reasonable person in the defendant’s position would have realised that harm to the plaintiff would occur if he continued to operate the prime mover in the manner that he had prior to the Camry entering the intersection.

11. The plaintiff’s claim is pleaded in negligence. It was negligent, the plaintiff claims, for the defendant not to moderate the operation of the prime mover after the Camry moved into the intersection and that negligence was a necessary condition of the occurrence of the harm to the plaintiff.

12. The particulars of negligence alleged in the statement of claim are as follows:

“(a)   Failing to properly anticipate the intended path of the plaintiff’s vehicle as it moved into the intersection.

(b)   Failing to react in a proper and timely fashion once the presence of the plaintiff’s vehicle in the intersection became known.

(c)   Failure to immediately identify the presence of the plaintiff’s vehicle in the intersection as a hazard.

(d)   Failure to alert the plaintiff of his approaching presence by the sounding of horns or other warning devices.

(e)   Failing to immediately apply the brakes once the plaintiff’s vehicle moved into the intersection.”

13. In an amended defence filed on 28 November 2013, the defendant denies that he was negligent. Further and in the alternative, the defendant pleads that the injuries were sustained by the plaintiff wholly or partly as a result of her own fault and contributory negligence. The particulars of contributory negligence are as follows:

“a. Failure to keep a proper lookout.

b. Entering the intersection when it was unsafe to do so.

c. Failing to warn the defendant of her intention to enter the intersection.

d. Failing to look to her right before entering the intersection.

e. Failing to await a proper break in the traffic proceeding south on the Great Northern Highway before attempting to turn right onto the Great Northern Highway.

f. Stopping her vehicle in the middle of the northbound laneway of the Great Northern Highway with the result that the northbound laneway was completely blocked.

g. Failing to take care of her own safety.

h. Speaking on her mobile phone while driving her motor vehicle at the time of the collision.

i. Failing to pay any or any proper attention to approaching traffic, by using her mobile phone instead of concentrating on the road environment.”

14. I should mention that as the collision occurred in Western Australia, the plaintiff relies upon Part 1A of the Civil Liability Act2002 (WA) (the CLA) and the Motor Vehicle (Third Party Insurance) Act1943 (WA). Section 5B CLA provides:

5B.    General principles

(1)   A person is not liable for harm caused by that person’s fault in failing to take precautions against a risk of harm unless —

(a)   the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and

(b)   the risk was not insignificant; and

(c)   in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)   In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) —

(a)   the probability that the harm would occur if care were not taken;

(b)   the likely seriousness of the harm;

(c)   the burden of taking precautions to avoid the risk of harm;

(d)   the social utility of the activity that creates the risk of harm.

15. Questions of breach of duty, causation and contributory negligence are governed by the CLA. The onus of proof of breach and causation is on the plaintiff on the balance of probabilities. Section 5C CLA is as follows:

5C.   General principles

(1)   A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements —

(a)   that the fault was a necessary condition of the occurrence of the harm (factual causation); and

(b)   that it is appropriate for the scope of the tortfeasor’s liability to extend to the harm so caused (scope of liability).

(2)   In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) —

(a)   whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and

(b)   whether and why the harm should be left to lie where it fell.

(3)   If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault —

(a)   subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and

(b)   evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.

(4)   For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor.

16. As to contributory negligence, s 5K CLA provides:

5K.   Standard of contributory negligence

(1)   The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2)   For that purpose —

(a)   the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and

(b)   the matter is to be determined on the basis of what that person knew or ought to have known at the time.

17. The plaintiff was represented by Mr C T Barry QC with Mr J Davidson, and Mr K P Rewell SC represented the defendant.

A summarised review of the evidence

18. I propose to commence a summarised review of the evidence. It is apposite to note that the plaintiff has no recollection of the circumstances of the accident. Her unsigned statement (ex 4) was tendered in the defendant’s case. The plaintiff was required for cross-examination by the defendant.

19. She was asked by Mr Rewell whether she was on her mobile phone just before the accident, but she could not recall whether she was driving or not. I give no weight to the plaintiff’s unsigned statement. Neither the unsigned statement nor the plaintiff’s oral testimony assisted in determining the factual issues that are in dispute.

20. The sole witness called in the plaintiff’s case (other than Roger Stuart-Smith, an expert witness) was Senior Constable James Brock.

The evidence of Senior Constable James Brock

21. Senior Constable Brock gave evidence that he attended the site of the accident on December 9, arriving at 4.43pm. He observed “heavy road works” (T10 5) within the area. He also stated that the posted speed limit was 70 km/h (T11 45). He was unsure however, whether there was a speed sign on the Great Northern Highway near the turn off to Swan Christian College (T10 32-40).

22. He recorded in his “P72” that at the intersection of Dale Road and the Great Northern Highway there was, at the time of the accident, a “give way line” which, he said in Western Australia indicates that traffic approaching the line must give way to traffic travelling on the intersecting road (T13).

23. He observed that when standing at the intersection if one looked in a southerly direction down the Great Northern Highway the distance one could see “would be 400 maybe to 500 metres” (T13 1).

24. Senior Constable Brock also recorded in his “P72” that both vehicles involved in the accident were “proceeding normally” prior to the collision (T13 49-50; T14 1-6).

25. He gave evidence that he believed that upon impact with the prime mover the Camry “had been pushed somewhat from the point of impact” (T16 20). At the time of impact the vehicle was “within the roadway of the Great Northern Highway” (T16 28) and upon impact it was pushed from the western side partly onto the eastern side (T16 26-35).

26. Various photographs were tendered during the police officer’s evidence including ex Q which consisted of three photographs that he had taken of skid marks apparently left by the truck at the time that he arrived at the scene.

27. In cross-examination, Senior Constable Brock agreed that the give way line meant that a vehicle coming from Dale Road onto the highway had to give way to traffic flowing in both directions on the highway. He said that with a give way line “you can roll through as long as you give way to all vehicles that’s on or approaching that road that you’re going onto” (T20 40-43). On this topic, Senior Constable Brock gave further evidence as follows (T20 45-50; T21 1):

“Q. Would I be right in assuming that if there are approaching vehicles to whom one must give way‑‑

A. Yes.

Q. ‑‑then one would be expected to stop behind the holding line until those vehicles have passed and there is the opportunity to enter the roadway?

A. Absolutely.”

28. The defendant provided a statement to Senior Constable Brock that was recorded by the police officer in his notebook (ex 1, 126-128). The statement is as follows:

“At about 16.35, I was driving in my truck, B train north on Great Northern Hwy. My speed was about 70Kmph as I have just come out of the roadworks on Roe Hwy.

As I approached Dale Rd I was looking ahead to the intersection and noticed a red car waiting to turn right. I noticed she was looking left and not my way, the car was starting to creep forward. At that stage I took my foot of (sic) the accelerator in anticipation of her actually pulling in front of me. I put on the horns and applied the brakes full lock.

She was pulling out as if she was pulling out of a driveway, no real acceleration at all. The driver looked at me just before impact. I hit the red car side on and pushed her about 5-10 metres.”

The evidence of the defendant

29. In a witness statement (ex 1), the defendant recounts that he was very familiar with where the accident occurred as he had driven on the Great Northern Highway many times. The road was in good condition and the vision was very good. He considered the weather and road conditions at the time of the accident “to have represented a perfect driving day” (ex 1, 11). In the witness statement, the defendant’s account of the accident is as follows (ex 1, 12-22):

12.   I was travelling north at approximately 70 kilometres per hour and there was a clear road ahead of me. There was a small hatchback travelling behind me.

13.   I was continuing on the Great Northern Highway and approached the T-intersection with Dale Road which leads into Houghton's Winery.

14.   At some point prior to the collision I noticed there was a red sedan that was coming out of Houghton's Winery. I first observed this vehicle when it was slowing down on approach to the holding line of the Give Way sign on Dale Road.

15.   I continued on but remained alert.

16.   I observed the sedan stop with the front bonnet just over the holding line.

17.   When I saw this, I took my foot off the accelerator and put it over the brakes just in case.

18.   The sedan continued to roll forward before momentarily stopping for a second time on a second white dotted line, which is a cycle lane that runs along the Great Northern Highway.

19.   By this point I had started to veer my truck as far to the right in my lane as I safely could.

20.   The sedan continued to roll through the second line. I immediately stepped my foot as hard as \ could on the on the brakes. \ had my other foot on the clutch. \ had to do this otherwise the motor would pull against me and the truck would not be able to stop until some time later. At this time, I also sounded my air horn so as to make her more aware that I was there.

21.   Right before the collision, I recall that the sedan stopped and the woman driver inside froze and stared straight at me right until the point where I could not see her anymore because of the high bonnet on the truck and the way that the truck is elevated above the ground.

22.   My truck collided with the sedan. The front of my truck hit the right side centre of the sedan and pushed it forward about 8 metres but still within the confines of my lane.

30. In his oral testimony, the defendant gave evidence in chief that expanded upon the action that he took before the collision (T30 35-50; T31 1-10):

“Q. Now please proceed from that point by telling the Court what you saw, as slowly and in as much detail as you can.

A. The car had stopped momentarily on the white line. As I said, I'd moved my foot and just had it touching the brake pedal. When the car started to roll forward, I at that time immediately applied the brakes as hard as I could. At that point I was focused on nothing but trying to stop, stop this vehicle.

Q. What did the Camry do?

A. The Camry pulled out into the middle of the intersection, at which time the driver stopped.

Q. How far were you from the Camry when the driver stopped?

A. I could not be exact on the distance. I was focused on the vehicle.

Q. Were you close or far away at that point?

A. I would have been relatively close at that point.

Q. Well, were you able to stop the truck?

A. No.

Q. Did you do anything else other than apply the brakes?

A. Yes. I applied the brakes and I reached up pulling on the air horns, trying to make myself more known to the driver, make the driver more aware that I was there.”

And (T 31 28-50; T32 1-29):

“Q. When you saw the Camry begin to move forward after it had stopped just over the holding line, did you do anything about the position of your truck?

A. I moved my vehicle slight to the right of my lane as safely as I could.

Q. And why did you do that?

A. If the vehicle had have stopped and not kept coming, I would have been in a better position to have avoided that vehicle, so moving the truck over is something that needed to be done.

Q. Now, you've told us what you did with your right foot, namely, take it off the accelerator?

A. Yes.

Q. Put it on the brake pedal without pushing at that point?

A. Yes.

Q. I think that was before the thing moved off ‑ is that right ‑ the Camry moved off?

A. Yes.

Q. Now, once the Camry moved off, you said you applied your brakes?

A. Yes.

Q. Did you leave anything in reserve or apply them heavily or what was the position?

A. I stood on those brakes with everything I had. I put on full braking.

Q. Can you describe the position that a driver takes in such a rig when one has to put on the brakes as hard as you can.

A. Yes. To apply the brakes at that level of pressure, you cannot do so while seated. Both hands must be back on the steering wheel. You have to put your foot on your clutch so as it disengages the gearing from the engine.

Q. That's the left foot?

A. Left foot on the clutch, and you raise your body out of the seat in order to apply the pressure required. So you are standing on that pedal, quite literally.

Q. With your right foot?

A. With the right foot.

Q. And was that what you did?

A. That's exactly what I did.

Q. Could you explain to his Honour why it was necessary to depress the clutch.

A. Disengages the driving force. As a diesel, unlike a petrol engine, if your road speed and your engine revs are reduced, in a petrol engine the engine will automatically stall very quickly. In a diesel, not so much the case. Diesels are designed to pull ‑ the engine will just think it is under load and it will try to pull it against you.”   

31. The defendant said that as the driver of the Camry was approaching the intersection, he noticed that the driver’s head was faced to the left and not to the right. This was before she stopped at the holding line. After she left the holding line, he saw her turn to face to the right. He said that this was when he leant on the horns.

32. In cross-examination, the defendant gave evidence that the Camry was about “two car lengths…maybe three car lengths back from the holding line, at best” when he observed the plaintiff looking to the left and not in his direction (T37 49-50). He said that the plaintiff approached the intersection but could not estimate the speed of the vehicle. She “late” braked the vehicle with the front wheels across the give way line. He agreed that the Camry after it had stopped moved forward very slowly. When he saw the vehicle go over the give way line, his first reaction was to take his foot off the accelerator, cover the brake and move the vehicle to the right.

33. The defendant did not dispute that on a Sunday afternoon there was a heavy flow of traffic along the highway. As to when the accident occurred he said (T40 45-48):

“I was focused on the vehicle in front of me. I could not actually tell you what the traffic flow was towards me. I was a hundred per cent focused on what was happening directly in front of me.”

34. The defendant was cross-examined on a statement he provided to an insurance investigator dated 18 May 2010 and paragraphs 21(b) to (d) of the statement were tendered by the plaintiff and marked exhibit U.

35. Those paragraphs are as follows:

“(b) I noticed there was a red Toyota Camry sedan that was slowing down and approaching Dale Road and I cannot be certain it had indicated to turn right. There was a small hatchback that was approaching me and that driver would have had a great view of the accident but she was not interviewed.

(c) I continued on and I was anticipating something was going to happen. The Camry had stopped just over the Give Way line for a split second and then started to move out very slowly.

(d) I started to move to the right before she started to pull out and when she started to pull out I had my foot off the accelerator and jumped on the brakes as hard as I could and I had my other foot on the clutch. I had to do that otherwise the motor would pull against you and you wouldn’t stop until sometime later. I also pulled on the horn as well.”

36. The defendant accepted that he had been interviewed by a police officer immediately after the accident and agreed that the police officer had written down what he had told him in the police notebook. Cross-examination of the defendant on the entries in the police notebook included the following (T59 39-50; T60 1-39):

“Q. The statement continues may I suggest "I was about 45 metres from Dale Road turn off when the red car pulled out in front of me". That's what you said to the police officer at the time and I want to ask you this, if that's what you said to the police officer at the time do you agree that that is probably an accurate estimate of how far you were from Dale Road turn off when the red car pulled out?

A. No.

Q. How far do you say you were?

A. It would have been an estimate of what I thought at the time.

Q. Could it have been greater?

A. I don't know.

Q. Why did you put the figure of 45 metres as your estimate if you didn't believe at the time it was true?

A. At the time I would have believed it was true. It was a lot going on at the time. It was at the time.

Q. You then say "I put on the horns and applied the brakes full lock"?

A. Yes.

Q. Now was that something that you did at the same time?

A. I was standing on the brakes, pulled on the horns.

Q. My question is, did you do those two things at the same time or did you do one first and the other second?

A. No at the same time, standing on the brakes and pulled on the horns.

Q. So you stood on the brakes and pulled on the horns?

A. Yes.

Q. Both of those actions were things you had done after you'd moved to the right?

A. Yes.

Q. You then say in the police statement "She was pulling out as if she was pulling out of a driveway, no real acceleration at all"?

A. Didn't appear to be at the time, no.

Q. When you say "as if she was pulling out of a driveway" you were intending to convey that she was moving very slowly across the road in front of you?

A. That's how it appeared to me.

Q. That's why you use the words "as if she was pulling out of a driveway", is that right?

A. Yes.

Q. Then what you then did is you pulled on the horns, is that right?

A. I've stood on the brakes and pulled on the horns.”

37. In further cross-examination, the defendant did not agree that he should have blown the prime mover’s horn earlier than he did.

The evidence of Debra Atkinson

38. In a witness statement (ex 2) Ms Atkinson recounts that in the period immediately preceding the collision, she was in the front passenger seat of a vehicle being driven by her daughter, travelling behind the prime mover. She describes the weather at the time as being “fine and visibly clear” (ex 2, 4).

39. Her vehicle was “travelling about four car lengths behind the prime mover at a speed of approximately 68 km/h” (ex 2, 6). She said that she was aware of the vehicle’s speed as she had earlier that day taught her “daughter how to use the cruise control function” and the vehicle “was consistently travelling at this speed prior to the accident” (ex 2, 6).

40. Ms Atkinson observed that prior to the collision the prime mover was travelling at a similar speed as her vehicle because the distance between the prime mover and Ms Atkinson’s vehicle “remained the same” (ex 2, 7). She observed that “traffic was very heavy in both directions” (ex 2, 8-9). In her oral evidence, Ms Atkinson said that the traffic in the southbound lane was stationary. There was hardly any movement at all.

41. As her vehicle approached Dale Road, Ms Atkinson observed the Camry travel along Dale Road towards the intersection of Dale Road and the Great Northern Highway. She stated that the Camry “approached the sign before slowing down and then paused for a couple of seconds. She then moved the vehicle forward slowly at a speed of approximately 5-10 km/h” and then “continued to drive across the northbound lane and right into the path of the truck even though there would have been no vehicles to letting (sic) her in as the vehicles in the south bound lane were stationary due to congestion” (ex 2, 11-12).

42. Ms Atkinson stated that the Camry continued to drive across the northbound lane and right into the path of the truck. She then heard the truck toot its horn and brake very heavily. There was a lot of smoke coming off the tyres of the truck and the brakes were screeching. Ms Atkinson recounted when the truck tooted its horn, “the lady in the maroon car just stopped across the lane” (ex 2, 14).

43. When asked whether she recalled now, precisely, when the horn went on and off or not, Ms Atkinson replied (T71 5-9):

“The horn and the brakes, this all happened like the same time. When I noticed the car going over the line, the horn-the horn and the brakes were at the same time and I yelled at my daughter, “Turn left. Turn left”, and that all happened together.”

44. Ms Atkinson said the horn and the brakes happened straight away after the Camry went over the give way line. On the topic of the speed of the Camry after it moved over the give way line, Ms Atkinson said (T71 25-29):

“A. Just "slow". I only saw it for a little bit. I just saw her come over the line, just a little bit. I don't know whether she sped up or not because I was too busy telling my daughter to turn left. As soon as I saw the car start to go over the line, I didn't look at it. I was looking for my daughter to turn left.”

45. Ms Atkinson observed that the impact resulted in the Camry being pushed “about 10 metres north” (WS1 15) and that the Camry “was stationary upon impact across the lane” (WS1 16).

46. During evidence-in-chief Ms Atkinson said that prior to the collision, whilst travelling behind the prime mover, her ability to see ahead was “quite good because we were a fair way back. We were three or four car lengths back from the truck so I had very good vision” (T70 7-8).

47. Ms Atkinson was asked whether the prime mover had an opportunity to swerve right to which she responded:

“He couldn’t go right. He would have cleaned up a dozen or 20 cars. Traffic was bumper to bumper on the other side. It would have been catastrophic if he swerved right” (T70 40-42).

48. When asked whether the prime mover had a chance to swerve left Ms Atkinson said:

“No, there were other cars coming out of Dale Road, so he couldn’t go anywhere” (T70 47-48).

49. Ms Atkinson described the plaintiff as “driving erratically in that it wasn’t just a smooth drive and stop. It was if… she was in a manual car and she couldn’t get the clutch and accelerator right, you know? That’s what attracted me to her. She was driving a little bit odd” (T69 16-19).

50. In cross-examination, Ms Atkinson’s evidence included the following (T71 36-50; T72 1-17):

“Q. I know you tend to speak quickly ‑ and some of us do that. Would you mind slowly telling us what it was that you observed about the red car which drew your attention to it?

A. It was, it was like bunny hopping. Like the car stopped and started, stopped and started a few times. Whether she was on a phone or whether she couldn't get the clutch and accelerator ‑ I have no idea but it was just ‑ the bunny hopping type, stop and start a little bit.

Q. Where was the vehicle in relation to the give way line when you observed this?

A. Back probably ‑ I am not really good with distances. It was back from the line because as we were coming along Great Northern Highway, when we were back further you couldn't see because the vineyard were there and then the vineyards, I got the clearer vision so I don't know. I don't like to give – it was a bit back 15 metres or something. I don't know. It's hard to....

Q. How far away from the intersection was the truck when you saw the red car bunny hopping?

A. There's a turning lane going into Dale Road and when I first observed the car, I was back before the turning lane so the truck probably would have been maybe where that turning lane is, perhaps.

Q. You did say in your statement, paragraph 9, "From about 20‑25 metres from the T‑intersection with Dale Road I observed a lady in the maroon sedan drive out from the Houghton Winery and approach the give way sign." Is that 25 metres likely to be accurate?

A. No, it's probably more, knowing my distances. It's probably a little bit more.

Q. Traveling at 70km's an hour, you would cover that distance in a matter of a second or two?

A. Yes. But I know it was before the turning lane so it was before the turning lane. Whatever that distance would be.”

51. As to the speed of the vehicle after it moved over the give way line, Ms Atkinson’s evidence in cross-examination included the following (T72 40-45):

“Q. I think you estimated it is a speed of approximately 5‑10 kilometres?

A. That was the lady ‑ when the lady was doing my statement she said, "How far do you think she went over the line?" I said, "It was just slowing, slow. I observed her for that bit of road. She just went over the line a little bit slow and then I took my attention off her." And she said, "What, 5‑10 kilometres?" I said, "That's pretty slow, five kilometres."

The Experts’ evidence

52. Roger Stuart-Smith was engaged for the plaintiff and Chris Hall for the defendant. No challenge was raised as to the expertise of either witness. They had participated in a conclave on 19 March 2014 and gave concurrent evidence during the hearing.

53. Mr Stuart-Smith is a qualified Traffic Engineer with more than 30 years experience in crash reconstruction, road safety engineering, road and traffic systems. His report is ex D. His conclusions included the following (ex D, 34-35):

“Based on witness reports of a slow turning movement by the plaintiff as she entered the intersection, a conservative estimate of her turn up time up to the time she stopped just before impact is about 4.2 to 6.2 seconds. The defendant would have been located about 69 to 113m before the POI at the time the plaintiff commenced to turn.

Based on this turn time, the defendant had sufficient distance to have been able to complete an expected reaction time and brake to a stop before reaching the POI. The fact that the defendant required an additional 8m to stop is consistent with him having a delayed start to his reaction following the plaintiff commencing to move into the intersection, or having delayed the onset of braking.

Given the fact that the defendant was driving a B train, which would be known to give rise to severe consequences if involved in a collision with a smaller vehicle, it could have been expected that the defendant would have commenced to react and implement emergency braking as soon as the plaintiff commenced to enter the intersection. The analysis shows that, on the balance of probabilities, the defendant could have avoided a collision, had he reacted and braked as soon as the plaintiff became an immediately identifiable hazard on entering the intersection.”

54. In his report (ex D, 30) Mr Stuart-Smith discussed perception response time which is the time between the detection of an immediately identifiable hazard requiring an emergency response and the commencement of an emergency vehicle response. He noted that researchers suggested that, given a readily identifiable hazard in front of the driver, in a “fairly straightforward situation,” about 85% to 95% of drivers will respond within 1.5 seconds. He referred to recent research by Muttart that based on the assumptions referred to in the report that an average perception response time of 1.0 seconds, with an 85th percentile time of 1.4 seconds could be expected for a driver in the defendant’s circumstances.

55. Mr Hall is a Mechanical Engineer consulting in the field of motor vehicle accident reconstruction. His report is ex 3. Mr Hall’s conclusions included the following (ex 3, 17):

“Mr Wallace applied his brakes at least 43 metres prior to the impact.

It is not possible, on the available evidence, to determine when Mr Wallace first sighted the Toyota at the intersection.

If Mrs Zheng moved forward very slowly, reaching a speed of only 5-6 kph, it was likely that the semi-trailer was around 80-90 metres from the impact when her forward movement commenced.

In that case, provided that Mr Wallace immediately reacted under the impression that Mrs Zheng would not stop her forward movement and applied his brakes in an emergency, it was likely that he could have avoided the collision.

If, due to her very slow forward movement over an initial short distance of less than half a metre, Mr Wallace had taken 1 second longer to perceive that a hazardous situation was about to develop, he was very unlikely to have been able to avoid a collision.

If Mrs Zheng reached a maximum speed of 7-10kph prior to braking before impact, it was unlikely that Mr Wallace had sufficient time and distance to avoid the collision.”

56. The Expert Conclave report is part of the plaintiff’s tender bundle. Shortly stated, the experts agreed that the defendant’s vehicle would have been potentially visible to the plaintiff most likely at a distance in excess of 150 metres and for a time in excess of 7.5 to 8 seconds. They agreed that the B double’s speed at impact was likely to have been about 32 to 34km/h. The experts agreed that Muttart’s approach to the derivation of an expected perception response time is an appropriate methodology to use. The relevant factors included “the brake lag time (time between lifting foot from accelerator to application of full braking)” and “whether the driver had his…foot hovering over the brake” (p 8).

57. Mr Hall was of the opinion that additional factors that needed to be considered include:

• The level of traffic density; and

• Any unexpected aspect of traffic activity.

58. Mr Stuart-Smith agreed with these factors, but noted that they had been incorporated into other variables in Muttart’s algorithm.

Matters in Dispute Between the Experts

59. There are a number of areas of disagreement between the experts. The first area concerned the movement of the Camry after it moved off from the give way line.

60. As to the time taken by the plaintiff’s vehicle to move from the give way line to the position just over the centre lines of the highway where it stopped and the impact with the prime mover occurred, Mr Stuart-Smith in his oral evidence proposed a range of 4.0 seconds (if a maximum speed of 10 km/h was reached by the Camry) to 5.4 seconds (if a maximum speed of 5 km/h was reached). He had assumed a travel distance by the Camry of 6.0 metres and hard braking of the prime mover to be 6.0 metres and hard braking of the prime mover to be 0.6g to rest.

61. On the other hand, Mr Hall proposed a range of 3.3 seconds (if a maximum speed of 10 km/h was reached by the Camry) to 4.8 seconds (if a maximum speed of 5 km/h was reached). Mr Hall had assumed that the Camry had travelled 5.5 metres and hard braking of 0.7g to rest.

62. Mr Stuart-Smith explained that he had used 0.6g to be conservative as “a higher number means higher G forces, so that is harder deceleration” (T124 15-18). Mr Hall said that he chose 0.7g “because we have a braking condition that does not involve skidding and therefore a skidding coefficient of friction would under-represent the rate at which the vehicle slides” (T125 19-21).

63. Another area of disagreement was the braking distance of the prime mover from a speed of 70 km/h and the distance the defendant would have been required to react and brake his vehicle to a stop once the plaintiff was identifiable as an immediate hazard.

64. Mr Stuart-Smith gave evidence that the braking distance was “the distance over which the brakes were fully effective, which is the skidding distance” (T132 11-13). He opined that the braking distance was 37 to 38 metres from 70 km/h to rest, not including a “brake lag” time of 0.5 seconds. Mr Hall expressed the opinion that the skidding distance to rest was 43 metres. The difference of five to six metres between the experts arose from their different interpretation of the photograph ex Q (1). Mr Hall considered that the photograph shows a “greying-in” distance of six metres before full skid marks appear, whereas Mr Stuart-Smith was of the opinion that the “greying-in” distance was confined to one metre.

65. As to the distance the defendant would have been required to react to brake the prime mover to a stop once the plaintiff was identifiable as an immediate hazard and the perception/reaction time, Mr Stuart-Smith assumed a reaction time of 1.0 seconds up to 1.4 seconds. Mr Stuart-Smith’s range included 0.5 seconds brake lag time. Mr Hall considered the reaction time was 1.0 seconds to 1.5 seconds. If he adopted Mr Stuart-Smith’s methodology of including brake-lag time, the perception-reaction time was 1.5 to 2 seconds, an additional half-second difference.

66. During the Expert Conclave, the experts agreed that Muttart’s approach to the derivation of an expected perception response time was an appropriate methodology to use. During his oral evidence, Mr Hall said (T176 27-31):

“…The Muttart model doesn’t accurately represent this circumstance: (a) we’ve got a semitrailer; (b) we’ve got a vehicle that moves very slowly from start and goes forward. And there may have also been a stop-start situation which results in change of cognitive appreciation of what’s going on.”

67. After adjustments and an allowance for Muttart’s model being based on cars rather than trucks, Mr Hall concluded “that it was reasonable to assume that a reaction time of one to one and a half seconds would be appropriate for this type of incident” (T177 1-3).

68. Mr Stuart-Smith disagreed that Muttart’s model could not be directly applied to the circumstances of the accident using the known variables.

69. Mr Stuart-Smith’s evidence was that the distance at which the defendant would have been required to react and brake his vehicle (travelling at 70 km/h) to a stop once the plaintiff was identifiable as an immediate hazard was 58 to 68 metres, whereas in Mr Hall’s opinion the distance required was 75 to 86 metres.

70. Mr Stuart-Smith’s opinion was that had the defendant commenced breaking six-tenths of a second earlier, there would not have been a collision. He said (T160 50; T161 1-7):

“Well, I actually ‑ the process of reasoning explained yesterday just in that ‑ is just a physical ‑ Mr Hall was quite ‑ I understand he was quite comfortable with the reasoning and that the truck travelled an additional 12 to 13 metres after the impact. And the time to travel 12 to 13 metres at 70 kilometres an hour, before skidding, is six‑tenths of a second. So had the truck commenced to skid six‑tenths of a second earlier, it would have been 12 to 13 metres earlier when the skidding commenced, and consequently the end point would have been at the point of impact.”

71. The experts’ opinions differed as to the distance the defendant was from the plaintiff’s vehicle when he observed her to enter the intersection. Mr Stuart-Smith’s view was a distance of 67 metres to 94 metres which comprised (T166 21-26):

“…28 metres of skid distance in about 2 seconds; and then between 2 and 3 – the balance of the – of the time available, at 70 kilometres an hour, gives rise to another 39 to 65 metres, giving a total of 67 to 94 metres. And obviously if we use the grey skid area, it would be 1 more metre: 68 to 95.”

72. Mr Stuart-Smith agreed that it was normal to have “greying in”. Mr Hall considered that the distance was 55 to 84 metres.

Submissions

73. In written submissions, the plaintiff contended that the defendant was an unreliable witness who had given inconsistent evidence about the circumstances leading up to the accident. It was submitted that the court could not act on his evidence except insofar as it leads to a finding of fact that:

(i) He knew, and/or a reasonable driver in his position would have known that the plaintiff was not aware of his imminent approach.

(ii) There were precautions reasonably available to him, which would have prevented this accident. Those precautions were:

(a) Using the horn to warn of his approach; and

(b) Braking in time to avoid the collision.

74. The plaintiff submitted that the second precaution required findings of fact to be made on two matters:

(i) Whether the plaintiff proceeded at 5 km/h across the road; and

(ii) Whether the skid marks commenced where Mr Hall said they commenced, or where Mr Stuart-Smith said they commenced.

75. Furthermore, the commencement of the skid marks, the police markings on the exhibited photographs were said to confirm the accuracy of Mr Stuart-Smith’s observation.

76. The plaintiff referred to various aspects of the defendant’s evidence (PWS 8-14). One of the plaintiff’s contentions was that, it was the creeping forward by the plaintiff while she was looking in the opposite direction that put the defendant on notice, that he could not assume that the plaintiff was aware of his approach or that she would obey the give way line. The plaintiff argued that it was unreasonable for the plaintiff not to toot his horn or slow down in anticipation of her continuing into his path when he knew those two facts.

77. The plaintiff argued that the reason why the defendant gave unreliable evidence about his observance of the approach of the Camry to the give way line and unreliable evidence about his observations of the traffic coming in the opposite direction was that he assiduously wished to avoid identification of any matter which put him on notice of the very matter that he knew had a significant risk of occurring, namely that the plaintiff would move out in front of him because she had misjudged his speed and position, and was not aware of his approach because she was looking in the opposite direction and creeping into his path.

78. Another submission was that the court should act upon the evidence of Ms Atkinson as to how the plaintiff approached the give way line. The plaintiff submitted that the court should make the findings of fact delineated (PWS 19).

79. In oral address, the plaintiff submitted that the defendant let an emergency situation develop where he had to make an emergency brake application rather than sounding his horn or reducing his speed. The plaintiff asked why did the defendant have such an extraordinary focus on the plaintiff? The plaintiff contended that the defendant knew that the plaintiff was driving in a manner which was unusual. His attention was particularly directed to her and was focused on her to such an extent that he was able to observe the colour of her hair and that hair was turned in the wrong direction.

80. The plaintiff pointed out that these observations occurred as she was approaching the give way line and then she proceeds over it. The plaintiff argued that the defendant is then on notice that she was looking to join the line of traffic and was not aware of the approach of his vehicle. The defendant’s covering of his brake, the plaintiff argued, is the very thing which was not going to avoid the accident. The plaintiff submitted that the “only real relevance of the expert evidence of this case, that it shows that had he done that [slowed down], then this accident would have been avoided. The other alternative of course is simply to warn of his approach” (T224 50; T225 1-3).

81. In written submissions, the defendant contended that it cannot be inferred from the fact that the plaintiff drove 1.5 metres over the give way line before stopping, that there was an increased risk that she would move off, across the northbound traffic lane of the highway, without looking to her right. When the defendant saw the plaintiff stop over the give way line, he could assume that she would look to her right for approaching traffic, before moving off, as any rational driver would do. The defendant contended that while there is always a risk that a motorist stopped at a give way line will inexplicably move into the path of vehicles travelling through an intersection, that risk is small and did not warrant the defendant sounding his air horns.

82. The defendant argued that the plaintiff’s assertion that the defendant should have sounded his horn while the plaintiff was stationary over the give way line, or even earlier, and that this may have caused the plaintiff to remain where she was and avoid the collision was a prime example of “hindsight reasoning”.

83. It was submitted that the defendant did exercise appropriate caution when he saw the plaintiff approach the give way line in an unusual manner before stopping and saw her look to the left. The defendant argued that it was not part of his duty of care to reduce his speed at that time. It was pointed out that the plaintiff’s vehicle was stationary at the time and the only reasonable expectation was that the plaintiff would have looked to her right before moving off and could not have failed to see the prime mover.

84. It was submitted that the defendant was an obviously honest witness, doing his very best to provide an accurate account of his, and the plaintiff’s actions at the relevant time.

85. Another submission was that the defendant’s evidence as to what he did upon seeing the plaintiff move off from a stationary position of the give way line was critical and no challenge was made to that part of his evidence. The defendant contended that Mr Stuart-Smith conceded that if that evidence was accepted, there was nothing more the defendant could have done to avoid the collision, unless it is found that he should have braked before the plaintiff moved off from a stationary position, which was not seriously suggested by either expert.

86. The defendant argued that once it was accepted that the defendant saw the plaintiff’s vehicle from first to last, took reasonable precautions up to and including the time that she stopped over the give way line, and reacted as quickly as he could when she began to move off, thereafter applying full braking on his vehicle, there was nothing more that could reasonably have been expected of him. He contended that there is no basis for finding that he failed to take reasonable care. The defendant submitted that as a matter of law, the above analysis was sufficient to dispose of the disputes between the experts.

87. As to the matters in dispute between the experts, the defendant argued that in general, the evidence of Mr Hall should be preferred.

Consideration

88. My overall impression was that the defendant was doing his best to honestly recall the circumstances of the accident. Given the different occasions and the precision with which he was asked to recount the detail of what occurred, it is hardly surprising there was some variation in the accounts that he has provided over the years. It is appropriate to observe that his account of his actions after the Camry moved off from its stationary position at the give way line has been consistent and was not diminished in any way by Mr Barry’s cross-examination.

89. My assessment of Ms Atkinson was that she was an honest witness whose evidence supported in most respects the defendant’s testimony. However, I consider on the balance of probabilities that her description that the plaintiff was driving erratically before the give way line was mistaken. She made no mention of the Camry “bunny hopping” or “stopping” and “starting” in her witness statement which is surprising given the unusual nature of what was said to be the plaintiff’s driving. Senior Constable Brock had recorded that both vehicles involved in the accident were “proceeding normally” prior to the collision. I prefer and accept the defendant’s evidence that the Camry approached the intersection at a speed which, he could not estimate and was “late” braked with the front wheels across the give way line.

90. A principal matter of controversy in this case is Mr Stuart-Smith’s opinion that the defendant could have avoided a collision had he reacted and braked as soon as the plaintiff became an immediately identifiable hazard. It is common ground between the experts that the plaintiff became an immediately identifiable hazard when she commenced to enter the intersection.

91. Mr Stuart-Smith’s analysis that there was some delay in the defendant’s reaction when the Camry commenced to move into the intersection and the onset of braking was delayed, is not supported by Ms Atkinson’s evidence. She said the horn and the brakes happened straight after the Camry went over the give way line. She recalled that the horns and the brakes all happened at the same time. Ms Atkinson’s testimony on this issue sits comfortably with the defendant’s account that when the Camry stopped momentarily at the give way line he moved his foot so that it was touching the brake pedal and applied the brakes and the horn immediately when the Camry started to move forward.

92. The reliability of Mr Stuart-Smith’s analysis is not assisted by the different interpretations of the “greying-in” distances as shown in the photographs ex Q(1). Mr Stuart-Smith’s opinion was that the “greying-in” distance was confined to one metre, whereas Mr Hall opined that the “greying-in” distance shown in the photograph before the full skid marks appeared was six metres. The testimony of the defendant and Ms Atkinson of immediate braking provides support for acceptance of Mr Hall’s opinion as to the distance of the “greying-in” area and a skidding distance to rest of 43 metres.

93. On the issue of the speed of the Camry after it left the give way line, the defendant told Senior Constable Brock that “she was pulling out as if she was pulling out of a driveway, no real acceleration at all (see [28] above). In cross-examination, the defendant agreed that he was intending to convey that the Camry was moving very slowly across the road in front of him (see [36] above). Ms Atkinson estimated the speed of the vehicle to be approximately 5-10 km/h before her attention was focused on telling her daughter to turn left. It was an estimate that she confirmed in cross-examination (see [51] above).

94. It seems to me on the evidence in this case that I am unable to make a finding as to the precise speed of the Camry after it left the give way line. The defendant’s description of the vehicle “as if [it] was pulling out of a driveway” fits neatly with Ms Atkinson’s estimate of approximately 5-10 km/h.

95. I make the following findings of fact:

96. The traffic in the southbound lane of the highway was hardly moving at all at the time of the accident. The vehicles travelling south were “bumper” to “bumper”.

97. Before braking, the prime mover was travelling at 70 km/h, which was the speed limit.

98. The plaintiff approached the give way line quickly and braked late, coming to a stop with the front bonnet and front wheels over the give way line. The experts agreed that the front of the Camry was around 1.5 metres forward of the give way line. I make this finding of fact in accordance with the experts’ agreement.

99. When the defendant saw the Camry stop over the give way line, he took his foot off the accelerator and put it over the brakes, where it was just touching but not depressing the brake pedal. The defendant moved the prime mover further to the right in his traffic lane.

100. The plaintiff drove the Camry forward leaving the give way line. She intended making a right hand turn so as to join the traffic travelling along the south bound lane of the highway. At this time, the speed of the Camry was approximately 5-10 km/h.

101. Before the plaintiff stopped at the give way line, the defendant saw that her head was facing to the left. At that time, the Camry was about two car lengths from the give way line. The defendant first observed the Camry when it was approaching the give way line. After she left the give way line, the plaintiff turned her head to the right.

102. Both experts agreed that had the plaintiff looked to her right before entering into the intersection, the prime mover would have been visible to her at a distance of 150 metres and for a time in excess of 7.5 to 8 seconds. I make findings of fact in accordance with this agreement.

103. When the Camry moved off, the defendant immediately braked heavily by standing on the brake pedal with his right foot and disengaged the gearing from the engine by putting his left foot on the clutch. As he braked the prime mover, he reached up with his right hand to a cord hanging from the upper dash board of the truck, pulling on the air horns.

104. The Camry had proceeded forward across the northbound traffic lane, then stopped, so that the front of the Camry was just over the centre lines of the highway. Most of the Camry was then in the path of the prime mover. When the collision occurred, the Camry was stationary. The prime mover’s speed at the time of impact was about 32 to 34 km/h.

105. After the collision between the two vehicles, the experts agreed in their oral testimony that the prime mover continued in a northerly direction for 11 to 13 metres. The Camry was pushed ahead of the prime mover, before both vehicles came to rest. When emergency vehicles arrived, the defendant reversed the prime mover two to three metres to enable access to the driver’s side door of the plaintiff’s vehicle. The skidding distance to rest of the prime mover was 43 metres.

106. During submissions, Mr Barry directed my attention to what was said by the High Court of Australia in Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424 at [6] (Backwick C.J, McTiernan, Kitto, Taylor and Owen JJ):

“Therefore, it is, in our opinion, rightly said that the "'right hand rule' is not the be all and end all in relation to questions of civil responsibility". The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to "reasonable care" is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected.”

107. It has, however, not been the defendant’s case that the plaintiff’s obligation to give way to vehicles travelling upon the highway relieved him of a duty to take reasonable care. The defendant contends that in all the circumstances he did not breach the duty to take reasonable care that he owed to the plaintiff.

108. In Warth v Lafsky [2014] NSWCA 94; (2014) 66 MVR 445 at [55], (McColl JA with whom Preston CJ of LEC and Tobias AJA agreed) quoted Meagher JA’s helpful summary in Marien v Gardiner [2013] NSWCA 396; (2013) 66 MVR 1, of the obligation of a driver to take reasonable care:

"[33] The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B.

[34] The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt[1980] HCA 12; 146 CLR 40 at 47 - 48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy[2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1).

[35] Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], 'reasonable attention to all that is happening on and near the roadway that may present a source of danger'. That in turn requires 'simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path'.

[36] The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat[2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.

[37] Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the 'limits of visibility and control' so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick(1985) 2 MVR 74 and Morris v Luton Corporation[1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision."

109. To these principles, I would add that the liability of a motorist is not an absolute one: T and X Company Pty Ltd v Chivas (“the T and X Case”) [2014] NSWCA 235; (2014) 67 MVR 297 at [11] (Beazley P).

110. One of the submissions made by Mr Barry was that this court was not bound by the decisions of the New South Wales Court of Appeal. With that submission I disagree. I am obliged to follow the decisions of intermediate Courts of Appeal in Australian jurisdictions other than Western Australia in accordance with the principles enunciated in Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 and Farrah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [135].

111. The question for me is whether the defendant was exercising reasonable care in the circumstances as they presented to him. Under s 5B(1)(c) CLA, the question is to be answered by reference to what a reasonable person in the defendant’s position would have done by taking precautions against a foreseeable risk of harm to the plaintiff.

112. In cross-examination Mr Stuart Smith was questioned about the defendant’s evidence at page 30, line 37 of the transcript that “when the car started to roll forward, I at that time immediately applied the brakes as hard as I could.” The evidence was (T148 49-50; T1491-3):

“Q. Now, if that evidence is accepted, if it is accepted that using all his intellectual and physical facilities Mr Wallace did what he said he did, he could do no more to avoid this accident, could he?”

A. No.”

113. When the Camry moved off the give way line, the risk of harm to the plaintiff was foreseeable and not insignificant. What precautions would a reasonable person in the defendant’s position have taken against the risk of harm? In my view, a reasonable driver would have immediately braked and sounded the horn. This is what the defendant did. He also disengaged the gearing. I am not satisfied on the balance of probabilities that after the Camry moved off the give way line, the defendant breached the duty of care that he owed to the plaintiff.

114. However, the plaintiff’s duty of care is not confined to the events after the Camry left the give way line. The defendant had observed the Camry approaching the give way line quickly, braking late, coming to a stop with the front bonnet and front wheels over the give way line. When the Camry was about two car lengths from the give way line, the defendant saw that the plaintiff’s head was facing to the left. She did not turn her head to the right until after she left the give way line.

115. Having seen the plaintiff approach the give way line in this way, the risk that she might drive out onto the highway without looking to her right was foreseeable. Whilst a driver is not required to know or predict every event which happens in the vicinity of his vehicle, in this case the defendant’s attention was focused on the plaintiff due to the manner in which she had approached the intersection. In these circumstances, the risk could not be dismissed as being insignificant nor did the defendant consider that it could not happen. He took his foot off the accelerator and put it over the brakes, where it was just touching but not depressing the brake pedal. He moved the prime mover further to the right in his traffic lane. It is reasonable to infer on the balance of probabilities that when the defendant took his foot off the accelerator, the speed of the prime mover reduced.

116. What precautions would a reasonable driver in the defendant’s position have taken? This question is to be addressed prospectively and liability is not absolute.

117. Having seen the manner of the plaintiff’s approach to the give way line and that her head was facing to the left, a reasonable driver in the defendant’s position would have done more to avoid the risk of harm than the precautions taken by the defendant. I am satisfied on the balance of probabilities that a reasonable driver would have sounded the prime mover’s horn to alert her to his vehicle’s oncoming presence. In failing to take this precaution, the defendant breached his duty of care to the plaintiff.

Contributory negligence

118. Mr Barry conceded that the reduction for contributory negligence in this case would be at least 50%. Mr Barry said that he made this concession notwithstanding that the defendant was driving “a very large and very heavy vehicle capable of inflicting extraordinary damage in a collision. And the plaintiff was driving a very small vehicle” (T225 28-30).

119. Mr Rewell submitted that the assessment of the plaintiff’s contributory negligence must be at the highest end of the range. He argued that “her conduct in driving onto a highway, oblivious to the near approach of a very large vehicle, without ensuring that she could actually enter the southbound traffic lane, beggars belief” (DWS 119). Mr Rewell contended that the degree to which the defendant’s conduct fell short of the standard of care required of him was “very small indeed” and the plaintiff’s contributory negligence “should be assessed at 85% and no less” (DWS 120-121).

120. Mr Rewell drew my attention to Basten JA’s consideration of contributory negligence in the T and X Case and submitted that the conventional thinking that the driver of the more dangerous vehicle bears some weightier duty has been set aside.

Consideration

121. In Town of Port Hedland v Hodder (No 2) [2012] WASCA 212; (2012) 294 ALR 315, the Court of Appeal of Western Australia gave a detailed consideration of s 5K CLA (WA). The primary issue in that appeal which does not apply to the case before me, was the extent to which the appellant’s disabilities were to be taken into account in assessing whether he failed to take reasonable care for his own safety. The court (Martin CJ, Mclure P and Murphy JA) confirmed that the test of contributory negligence is an objective one. Murphy JA said at [372]-[373]:

“The question posed by s 5K(1) is, in effect, whether the plaintiff who has suffered harm has been contributorily negligent 'in failing to take precautions against the risk of that harm'. For the purpose of determining that question, the plaintiff is, in effect, required to meet the standard of a 'reasonable person' in the position of the plaintiff and the matter is to be determined on the basis of what the plaintiff knew, or ought to have known at the time: s 5K(2). Section 5K(1) provides that a different standard does not apply as between the plaintiff and defendant when considering the respective questions of negligence and contributory negligence. In this regard, s 5K(1) appears to me to preclude the application of different standards referred to by Menzies J in McHale v Watson (223, 224). The words 'a reasonable person in the position of that person' in s 5K(2) are, in my view, to be read as a whole. The words 'in the position of that person' are not to be read as separately conveying that a subjective standard is to be applied in determining questions of contributory negligence.

That construction appears to me to be consistent with authority.”

122. In the T and X Case, at [54] (Basten JA with whom Barrett JA agreed) makes the following observations about the relevance of the capacity of a vehicle to cause greater damage when assessing contributory negligence under s 5R(2) CLA (NSW) which is in the same terms as s 5K CLA (WA):

“The significant, if subtle, change of emphasis which arises from the enactment of the Civil Liability Act raises a doubt as to the emphasis in past cases placed on the capacity of a motor vehicle to cause far greater damage, when compared with the capacity of a pedestrian to cause damage. That factor should be understood from the perspective of both the driver and the pedestrian, rather than as an independent consideration. To treat it as an independent consideration may lead to the conduct of the driver being judged against a higher standard than that of the pedestrian. Each should be equally conscious of that factor and adjust his or her behaviour accordingly: the driver by taking greater care for the pedestrian; the pedestrian by taking greater care for his or her own safety. It appears to have been this factor, however, which led the trial judge to place a greater share of responsibility on the driver than the pedestrian.”

123. The making of an apportionment once contributory negligence is found, involves a comparison both of the culpability that is the degree of departure from the standard of care of the reasonable person, and of the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529 at 533; Town of Port Hedland v Hodder (No 2) [2012] WASCA 212; (2012) 294 ALR 315 at [316]; Nominal Defendant v Meakes [2012] NSWCA 66; (2012) 60 MVR 380 at [80].

124. After stopping her vehicle over the give way line, the plaintiff proceeded onto the highway without looking to her right. If she had looked, the prime mover would have been visible to her at a distance of 150 metres and for a time in excess of 7.5 to 8 seconds. The plaintiff was obliged to give way to traffic travelling in either direction on the highway. The traffic in the southbound lane was hardly moving and was “bumper” to “bumper”. In these circumstances, by proceeding onto the highway the plaintiff was grossly negligent and endangered the driver of the prime mover and the drivers on the highway who were travelling south. In these circumstances, I give little weight to the fact that the defendant was driving the heavier vehicle. A reasonable driver in the position of the plaintiff would not have proceeded onto the highway and would have remained at the give way line.

125. The plaintiff’s degree of departure from the standard of care of the reasonable person was very high and was the prime reason for the collision between the Camry and the prime mover, whereas the failure by the defendant to sound the horns was a slight departure from the standard of care of the reasonable person when all of his conduct that includes taking his foot off the accelerator and putting it over the brakes, moving the vehicle further to the right, immediately braking heavily, disengaging the gearing and sounding the air horns when the Camry moved off from the give way line is considered in combination. I assess the plaintiff’s contributory negligence at 80%.

Orders

126. I make the following order:

Verdict and judgment for the plaintiff against the defendant in the sum of $606,473.60.

127. I make the following orders as to submissions on fund management fees and costs:

(a)    Plaintiff to file and serve any submissions as to costs on or before

28 January 2015.

(b)   Defendant to file and serve any submissions as to costs on or before 3 February 2015.

(c)   Any response by the plaintiff is to be filed and served on or before 11 February 2015.

(d)   Submissions are to be filed by emailing them to Ms Lisa Freeman, my associate.

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Amendments

21 January 2015 - paragraph 127 added

Decision last updated: 21 January 2015